Documents considered by the Committee on 22 November 2017 Contents

32Strengthening Schengen borders

Committee’s assessment

Politically important

Committee’s decision

Cleared from scrutiny; further information requested; drawn to the attention of the Home Affairs Committee

Document details

(a) Commission Communication on preserving and strengthening Schengen;

(b) Commission Recommendation on the implementation of the provisions of the Schengen Borders Code on temporary reintroduction of border control at internal borders in the Schengen area;

(c) Proposed Regulation amending Regulation (EU) 2016/399 as regards the rules applicable to the temporary reintroduction of border control at internal borders

Legal base

(a)—;

(b) Article 292 TFEU;

(c) Article 77(2)(e) TFEU, ordinary legislative procedure, QMV

Department

Home Office

Document Numbers

(a) (39078), 12878/17, COM(17) 570; (b) (39126),—, C(17) 6560; (c) (39087), 12723/17, COM(17) 571

Summary and Committee’s conclusions

32.1The Commission considers the Schengen area to be “one of the major achievements of European integration” enabling people to move freely within it and goods and services to flow unhindered across invisible internal borders. The absence of controls at these internal borders “constitutes the very essence of Schengen”, underpinning economic integration and mobility within the European Union.390 It also necessitates a wide range of compensatory measures to maintain an effective external border and ensure security within the Schengen area. Member States are responsible for maintaining law and order and safeguarding internal security within their territories but operate within a framework of rules—the Schengen Borders Code—which emphasises the temporary and exceptional nature of internal border controls as a means of addressing serious security threats.

32.2In its Communication Back to Schengen—A Roadmap published in March 2016, the Commission recognised that the migration and refugee crisis had “shaken [Schengen] to its core”, with serious deficiencies in external border control leading to unprecedented movements of irregular migrants across internal Schengen borders. Five Schengen countries reintroduced controls at some of their internal borders to stem these flows.391 These expired on 11 November. Others, notably France, have reintroduced internal border controls in response to persistent terrorist threats.392

32.3In its latest Communication—document (a)—the Commission reviews the measures taken at the external border and within the Schengen area to strengthen security. Despite these efforts, the goal (set out in its earlier Schengen Roadmap) of removing all internal border controls by the end of 2016 has not been met. Whilst a deal agreed between the EU and Turkey in March 2016 has stemmed the flow of irregular migrants entering Greece and moving on to other Member States, a spate of terrorist attacks has heightened the sense of insecurity within the EU and cast renewed doubt over the sustainability of the Schengen area. The Commission accepts that, as the threats facing the Schengen area continue to evolve, so too must the Schengen rules so that they are sufficiently flexible to address these “new realities”.393 Introducing the latest Schengen reform package, the Commission’s First Vice-President, Frans Timmermans comments:

“The Schengen Border Code rules for reintroducing internal border controls were devised in a different time, with different challenges. The exceptional circumstances that we see now, such as the increased terrorist threat, have led us to propose a Schengen Border Code more fit for purpose in this new day and age. Member States should be allowed to act in an exceptional situation when confronted with serious threats to their public policy or internal security. At the same time, they should act only under strict conditions. This is how we secure free movement and promote security within Schengen.”394

32.4The Commission Recommendation—document (b)—provides guidance to Member States on how to apply the current Schengen rules on the reintroduction of internal border controls with a view to limiting the impact on the free movement of people and on the internal market. The proposed Regulation—document (c)—would extend the period during which Schengen countries may maintain internal border controls from a maximum of two years under the current rules to three years under the new rules. It includes additional procedures and safeguards which are intended to ensure that a prolongation of controls only occurs “in exceptional cases” where there is a known or foreseeable serious threat to public policy or internal security.

32.5The Immigration Minister (Brandon Lewis) notes that the UK does not participate in the Schengen free movement area and is not bound by the Schengen Borders Code, but says that the Government “is watching all developments closely”.395 He supports efforts to strengthen the EU’s external borders and to coordinate action taken at internal Schengen borders, as well as close cooperation and information sharing between police and border control authorities nationally and across the Schengen area. He notes that the changes to the Schengen Borders Code proposed by the Commission are limited in scope to reduce any wider impact on the flow of goods and movement of people whilst ensuring greater flexibility for Schengen countries to manage longer-term security threats.

32.6Responding to the Commission’s plea for Member States to integrate Bulgaria and Romania fully into the Schengen area by agreeing to lift checks on persons at their internal land, sea and air borders with other Schengen States, the Minister reiterates the Government’s view that both countries have met the technical criteria for full Schengen membership. He adds, however, that the UK is unlikely to have a vote if a decision inviting the Council to approve their full accession to Schengen is limited to those parts of the Schengen rulebook on border control in which the UK does not participate.

32.7The changes to the Schengen Borders Code proposed in document (c) adjust the balance between mobility and security within the Schengen free movement area, giving Member States greater flexibility to reintroduce and maintain internal border controls in response to persistent and serious threats to their security whilst ensuring that they remain a temporary and exceptional measure of last resort. The additional procedural safeguards proposed by the Commission are intended to mitigate any wider adverse impact on the internal market and free movement within the Schengen area.

32.8Although more Schengen countries have had recourse to “raised internal border controls” in recent years in response to unprecedented migratory flows and an increased terrorist threat, the Minister makes clear that EU citizens retain their right of free movement, “subject to any intelligence-led, targeted light checks” and that trade flows continue despite “targeted security and customs checks”.396 We ask the Minister whether he expects internal border controls to have a greater impact:

32.9Given that the UK has no vote on the proposed changes to the Schengen Borders Code, we clear these documents from scrutiny but look forward to receiving the information we have requested.

32.10We note the Government’s consistent view that Bulgaria and Romania meet the criteria for full Schengen membership. Although the UK is unlikely to have a vote as and when the Council is invited to decide on the lifting of controls at their internal borders with other Schengen countries, we ask the Minister to keep us informed of developments. We draw this chapter to the attention of the Home Affairs Committee.

Full details of the documents

(a) Commission Communication on preserving and strengthening Schengen: (39078), 12878/17, COM(17) 570; (b) Commission Recommendation on the implementation of the provisions of the Schengen Borders Code on temporary reintroduction of border control at internal borders in the Schengen area: (39126),—, C(17) 6560; (c) Proposed Regulation amending Regulation (EU) 2016/399 as regards the rules applicable to the temporary reintroduction of border control at internal borders: (39087), 12723/17, COM(17) 571.

The Commission Communication on preserving and strengthening Schengen—document (a)

32.11The Commission considers that “the mass irregular migration influx” which reached its peak in 2015–16 and a proliferation of terrorist attacks across the EU has exposed shortcomings in the architecture of Schengen.397 In responding to these “critical and unprecedented challenges”, the EU has taken a range of measures to secure the Schengen free movement area and remove the need for internal border controls. They include:

32.12The Commission says that, “in the vast majority of cases”, the rules and time frames governing the reintroduction of internal border controls in the Schengen Borders Code have given Member States sufficient flexibility to tackle serious threats to their security. Nonetheless, “evolving and new security threats”, such as the risk posed by foreign terrorist fighters, necessitate some targeted changes to the current rules.399 These are set out in the proposed Regulation—document (c). The Commission has also adopted a Recommendation—document (b)—providing guidance on the implementation of the current rules governing the reintroduction of internal borders. The guidance is intended to safeguard “the common interest” by ensuring that the impact on neighbouring countries and on free movement is kept to a minimum.

32.13The Commission concludes with an appeal to the Council to integrate Bulgaria and Romania fully into the Schengen free movement area, following positive evaluations demonstrating that they fulfil all the conditions for Schengen membership. It says that Croatia should also become a full Schengen member once it meets all the criteria.

The Commission Recommendation on the implementation of the Schengen Borders Code—document (b)

32.14This non-binding Recommendation clarifies the Commission’s position on the application of the current rules contained in the Schengen Borders Code. These rules establish specific procedures for the temporary reintroduction of internal border controls in circumstances where there is a serious threat to public policy or internal security affecting one or more Schengen countries or the overall functioning of the Schengen free movement area.400 The procedures are intended to ensure that internal border controls are only re-introduced as a measure of last resort and are strictly necessary to respond to the threat.

32.15In its Recommendation, the Commission reminds Schengen States that it is possible to extend the period during which internal border controls remain in place by combining the time limits available under different provisions of the Schengen Borders Code (for example, two months under Article 28 plus a further six months under Article 25). Before reintroducing or extending internal border controls, the Commission underlines the need to:

The proposed Regulation amending rules on the temporary reintroduction of internal border controls—document (c)

32.16Member States have reintroduced and extended internal border controls on nearly 50 occasions since September 2015 (compared with 36 occasions between 2006 and 2015).401 In some cases, the controls have been maintained for the maximum period envisaged under the Schengen Borders Code. The Commission considers that Member States have been measured in their application of internal border controls, not least because of the impact that prolonged controls can have on the economy, but accepts that the current rules need to be adjusted to reflect the increased terrorist threat.

32.17Table 1 summarises the grounds and procedures for reintroducing controls and the length of time they can be kept in place under the current rules. The fourth column shows how these would be changed by the proposed Regulation.

Table 1

Grounds for reintroducing internal border controls

Procedure

Duration of controls

Changes in the proposed Regulation

Serious threat to public policy or internal security arising from foreseeable events/identified threats, such as international sporting fixtures or political summits

Articles 25 and 27 Schengen Borders Code

Advance notice given to the Commission, EP, Council and other Member States (usually a minimum of four weeks)

Process of consultation and mutual cooperation

Up to 30 days or “for the foreseeable duration of the serious threat” if longer.

Renewable for periods of up to 30 days, up to a maximum of six months

Duration of controls extended to up to one year:

— up to 30 days or for the foreseeable duration of the threat, but not exceeding six months

—renewable for a further six months.New requirements under Article 27(1) of the Schengen Borders Code:

— risk assessment (also shared with EU agencies: Europol and European Border and Coast Guard Agency)

— closer consultation with other Member States, led by the Commission and involving relevant EU agencies

— a requirement to take “the utmost account” of the outcome of consultations

— a requirement for the Commission to issue an opinion on any extension beyond six months.

The total time available under Articles 25 and 27 of the Schengen Borders Code is one year

New Article 27a allows a further extension on the same grounds for six-monthly periods not exceeding two years based on the following:

— at least six weeks’ advance notification

— commensurate measures (such as a state of emergency) have been taken at national level

— notification and consultation requirements apply afresh for any prolongation beyond the one year period allowed under Article 25

— the Commission is required to issue an opinion

— the Council makes a recommendation to extend border controls

The total time available under Articles 25 and 27a of the Schengen Borders Code is three years

Serious threat to public policy or internal security requiring immediate action

Articles 25 and 28 Schengen Borders Code

Immediate (unilateral) action without prior notification

Same process of notification, consultation and mutual cooperation (based on Article 27 of the Schengen Borders Code) applies once internal border controls are reintroduced

Up to 10 days
Renewable for periods of up to 20 days, up to a maximum of two months

No change to the duration of controls based on Article 28

New requirements under Article 27(1) of the Schengen Borders Code would apply

The total time available under Articles 25 and 28 of the Schengen Borders Code is one year and two months

Exceptional circumstances in which “persistent serious deficiencies relating to external border control” put at risk the overall functioning of Schengen

The circumstances constitute a serious threat to public policy or internal security

Articles 25 and 29 of the Schengen Borders Code

Council recommends (on the basis of a Commission proposal) that one or more Member States should reintroduce controls at all, or at specific parts, of their internal borders

Council Recommendation based on an assessment of the threat and the proportionality of the response

Up to six months, renewable three times up to a maximum of two years

Controls of up to one year based on Article 25 of the Schengen Borders Code can be extended (on a six-monthly basis) for a further two years

The total time available under Articles 25 and 29 of the Schengen Borders Code is three years

New requirements under Article 27(1) of the Schengen Borders Code would apply

32.18The proposed changes do not alter the grounds on which temporary internal border controls may be reintroduced. Their purpose is to:

32.19Whilst each Member State is responsible for deciding whether the threat to security is of a sufficient magnitude to justify the reintroduction of internal border controls, the duration of the controls and their necessity and proportionality is subject to Commission oversight. Where they extend beyond a year, they must be based on a Commission opinion and Council recommendation.402

The Minister’s Explanatory Memorandum of 1 November 2017

32.20The Minister notes that the proposed changes to the Schengen Borders Code would not apply to the UK and that this is made clear in the recitals to the proposed amending Regulation—document (c). He welcomes efforts to strengthen the EU’s external borders and to work cooperatively in developing “a comprehensive solution to the current migratory situation”. The Government supports “coordinated action” at internal Schengen borders, as well as increased cooperation and information sharing between police and border control authorities at a national level and between Member States across the Schengen area.403

32.21The Minister explains that the internal border controls being implemented by five Schengen countries—Austria, Germany, Denmark, Sweden and Norway—under Article 29 of the Schengen Borders Code expired on 11 November. The changes proposed by the Commission would not alter the grounds on which internal border controls may be reintroduced but adjust the length of time that they may be retained to address longer-term security threats. In the case of these five countries, as the current rules preclude a further prolongation of controls based on Article 29, the Minister reports that they intend to apply internal border checks at specific land borders for a further six months based on Article 25 of the Schengen Borders Code. He notes that during the two-year period in which the Article 29 controls have been applied, the five countries have provided regular updates on their impact on free movement:

“EU citizens, including UK citizens, have retained the right to move across these borders subject to any intelligence-led, targeted light checks and trade flows have continued even with targeted security and customs checks.”404

32.22The Minister recognises that the Commission has “purposely sought to limit changes to reduce wider impacts”, adding:

“We also note the inclusion of safeguards—monitoring, consultation and reporting by the acting Member States and the Commission—with a view to assess[ing] on a case by case basis the impacts of specific raised internal borders on the fundamental principles of the EU. This includes the impacts on cross-border trade and the freedom of movement of EU citizens.”405

32.23Turning to the Commission Recommendation—document (b)—the Minister says that it seeks to encourage Member States to implement the best practices on cross-border policing set out in an earlier Commission Recommendation adopted in May.406 These best practices “mirror our approach to collaborative cross-border security with European partners, such as France, the Netherlands and Belgium” and include the use of information sharing and new technologies to counter organised crime and terrorism. He adds:

“This collaborative approach also applies to work between the UK and the Republic of Ireland. Although neither party participates in the borders elements of the Schengen acquis, we operate the Common Travel Area (CTA) which includes in particular collaborative work between the Republic of Ireland and Northern Ireland.”407

32.24The Government will “assess any impacts on our bilateral arrangements and operations with European partners” whilst also continuing to share best practice. The Minister indicates that new legislation may be needed in some Schengen States to permit the type of police checks envisaged in the Commission’s May Recommendation and that, in any event, the five Schengen countries that have reintroduced internal border controls do not consider that police checks can “wholly replace” them.408

32.25The Minister reiterates the Government’s view that Bulgaria and Romania have met the technical criteria for full membership of Schengen but notes that the UK does not have a vote on any decision on the lifting of controls at their air and sea borders. He continues:

“We will […] watch developments closely for any moves which will lead to a measure that includes elements of the Schengen acquis on which the UK does have a vote.”409

32.26Any vote on Schengen membership would require the unanimous agreement of participating Member States and proved elusive when sought by the then Presidency in 2013 and 2014. The Government is also following closely the evaluation of Croatia’s readiness for full Schengen membership.

Previous Committee Reports

None on these documents, but see our predecessors’ earlier Report on the Commission Communication, Back to Schengen—A Roadmap: Twenty-eighth Report HC 342–xxvii (2015–16), chapter 4 ( 13 April 2016).


390 See p.2 of the Commission Communication.

391 Austria, Germany, Denmark, Sweden and Norway.

392 The Commission maintains a list of notifications of internal border controls.

393 See p.11 of the Commission Communication.

394 See the European Commission’s press release, Preserving and strengthening Schengen to improve security and safeguard Europe’s freedoms issued on 27 September 2017.

395 See para 35 of the Minister’s Explanatory Memorandum.

396 See para 44 of the Minister’s Explanatory Memorandum.

397 See p.2 of the Commission Communication.

398 See p.7 of the Commission Communication.

399 See p.11 of the Commission Communication.

400 See Articles 25–35 of Regulation (EU) 2016/399.

401 See p.3 of the Commission’s explanatory memorandum accompanying the proposed Regulation.

402 For a summary of the updated Schengen rules, see the Commission’s infographic and fact sheet.

403 See paras 36–7 of the Minister’s Explanatory Memorandum.

404 See para 44 of the Minister’s Explanatory Memorandum.

405 See para 43 of the Minister’s Explanatory Memorandum.

406 See Commission Recommendation C(2017) 3349 on proportionate police checks and police cooperation in the Schengen area.

407 See para 40 of the Minister’s Explanatory Memorandum.

408 See paras 39 and 41 of the Minister’s Explanatory Memorandum.

409 See para 42 of the Minister’s Explanatory Memorandum.




28 November 2017