“The existing organization of the Schengen area is unique and one of the greatest achievements of the European Union, which has been allowing for people’s free travel in the Schengen area without control at the internal borders,” the author of the report, Slovenian Socialist MEP Tanja Fajon, recognizes the agreement in the introduction.
There were 35 situations in the years 2006–2014 when control of Schengen area internal borders was re-established in various places. Starting from 2015, border control within the Schengen area has been restored on 268 occasions.
“Many cases of extending internal border control since 2015 have not been sufficiently justified, did not comply with the regulations on their extension, necessity or proportionality and are therefore unlawful,” Fajon states.
The report admitted that the European Commission is attempting to coordinate the Schengen system but not necessarily with success. “Member countries continue establishing control over internal borders, often without coordination and without sufficient preliminary consideration if Europe’s common interest in retaining the Schengen area without internal border control,” Fajon writes.
Reprimands are ignored
According to the author of the report, The European Commission has been slow or reluctant to launch infringement proceedings despite the establishing of clearly unjustified closing of borders.
Reform MEP Urmas Paet also points an accusing finger at the Commission. “There is always the justification that the European Commission cannot do much more than send a note about infringement. Indeed, this is all it can legally do. And yet it has been quite toothless in addressing the situation,” Paet claims.
According to Paet, it was insufficient that the European Commission sent already in February letters to some countries closing their borders warning that the move does not comply with the Schengen rules, but despite that their borders were closed even now, some weeks ago.
Paet presumes that very few people of these countries even notice the letter from the European Commission and even fewer know what the message from Brussels said. “The governments can establish restrictions only if they have relatively strong support in their country and there is no critical and adequate outside position,” he speculated.
“I can see the role of the European Commission in a situation where X country consistently infringes the European law, its restrictions are discriminatory and actually without much effect, that it would declare that the country’s position is excessive, that it should not act that way and will explain why it should not,” Paet recommended.
The year 2015 as the limit is not random – that was the year when the EU confronted the huge migration crisis caused by the Syrian civil war. The promise of the German Chancellor Angela Merkel to help the refugees triggered the exodus of millions of people from the Middle East. A total of 1.2 million people reached the EU member countries and appealed for asylum.
The migrants moving in principle towards Berlin caused much trouble primarily the countries which were on their way, but forced a number of states, from Hungary to Denmark, to establish borders within the borderless Schengen. Eventually a number of EU countries were separated by migrant-proof fences and temporary border controls.
The added corona burden
But Fajon admits that the corona crisis has further complicated the Schengen cooperation already battered by migration. She expresses concern in her report over border control of some Schengen states and remarks that although she supports the public health measures taken to limit Covid-19, the restriction of basic rights should nevertheless be lawful in spirit and in action.
“There are enthusiasts in various countries who believe that the controls should stay and who acquire additional arguments from every such situation,” Paet remarked.
However, the Estonian MEP did not agree with the idea that fining the countries closing their borders without justification could be sufficient. “It is not about the absence of mechanisms but about how member countries and their governments act. There are already rules about how the Schengen system should work. Everybody admits that Finland, Denmark and some others have infringed these rules. And so? This is how it is,” he said.
“Creating an additional mechanism in a situation where the member countries have the upper hand in any circumstances achieves nothing,” Paet said.
The Fajon report also states that the outside borders of the Schengen area must hold so that the system could work. “The Schengen assessment reports and assessments of vulnerabilities still underline inadequacies and shortcomings in the protection and assessment of the outer border,” she warns.
But Fajon’s criticism does not only point out that the outer borders need not be sufficiently strong. She also argues that the borders guard may not have always observed the basic rights of asylum applicants.
Accusations that border crossers have been driven back by force without granting them the opportunity to apply for asylum, have been submitted regarding the Greek border guards and Frontex officials helping them as well as the Spanish law enforcement in the recent invasion in the Ceuta enclave.
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