A yes for a reform of the Schengen agreement, a no for reinstating national borders

On Tuesday April 26th, in a letter addressed to the President of the European Commission José Manuel Barroso, Nicolas Sarkozy and Silvio Berlusconi called for a discussion on "the possibility of restoring temporary control at internal borders in the event of exceptional difficulties in the management of common borders". The request takes place at a time when France and Italy are battling to emerge from a bilateral crisis that began when Italy redirected 24,000 Tunisian immigrants towards France.

A retrograde Franco-Italian request

This mooted proposal is dangerous for various reasons. Firstly it implies a clear retreat away from one of the fundamental pillars of the European Union - the free movement of people. By allowing a member state to close its borders, the proposal stands accused of dismantling the core of the European project.

It is important to note that the reintroduction of national borders is already permitted under article 23 of the Schengen agreement. With rather vague wording, the article stipulates that a member state may reintroduce border controls when faced with a great threat to its public order or national security. In practice this has meant the hosting of major events such as international football games or France's hosting of the NATO summit in Strasbourg in 2009.

The recent Franco-Italian proposal adds a nuance to the current situation. By talking of “exceptional difficulties in the management of common borders", the proposal is aimed squarely at situations where member states face an influx of migrants, such as those stemming from the recent Arab spring. It establishes a clear link between migrants entering a country and a corresponding threat to domestic public order.

The Franco-Italian proposal leaves many questions unanswered. How would one define an "influx of migrants"? How can we measure the threat of an "influx" if we are not even sure what the term itself means? How many immigrants would have to land in the Italian island of Lampedusa before France can decide that it is facing a threat to its public order and should close its borders?

The current situation also brings attention back to France's much-criticized deportation of Roma to Romania and Bulgaria earlier this year. Could France, using the new language of this proposal, use the argument of a "influx of migrants" to restore control at its borders and prevent the future entry of Bulgarians and Romanians to French territory?

The proposal, in its current form, constitutes a real threat to the freedom of movement of people within Europe. It also points the future development of a two-track Europe where certain Europeans can freely move between countries, and others cannot.

A necessary reform

However while the acquis should not renege on its founding principle of free movement, it is clear that the Schengen border code, in its current form, does require an upgrade. Four key objectives should be pursued.

Firstly the principle of solidarity needs to become embedded among member states. During the recent crisis Italy complained loudly about how it was left to handle the situation alone, with scant help from other member states. Similar complaints from Malta, Spain and Greece have been made (and ignored) in the past. When a burden of handling a wave of migrants falls solely on one country, a humanitarian crisis becomes increasingly likely. By issuing temporary permits to the newly-arrived migrants and thus allowing them to move freely to other European countries, Italy was issuing a direct rebuke to France, and its other European neighbours, who, rather than offer Italy assistance, had turned and looked the other way.

The second key element is the need for reinforced border cooperation with neighboring countries, in particular those in the Mediterranean. The Union for the Mediterranean was formed in 2008 with this goal in mind. To date however it has done nothing to suggest that it is anything other than yet another results-shy vanity project. The widespread change taking place across the Arab world has gifted the EU another opportunity, one that it should grasp with both hands. It should aim to foster the economic and social development of the emerging, young democracies in the Arab world, not merely through border cooperation, but also through its neighborhood and development policies.

Frontex, the agency in charge of managing the EU's external borders must also be reformed. While Schengen may have removed domestic borders, the EU is still responsible for its external borders. With most member states unable, or unwilling, to manage their own external borders, the need for an effective EU external border agency has heightened. Despite recent improvements, Frontex remains hamstrung by its limited resources and friction between EU member states. By turning Frontex into an effective border security agency, the EU could begin to rebuild trust among its member states. What the Franco-Italy crisis showed more than anything else, is that such trust has evaporated among EU member states when it comes to border issues.

Finally the evaluation mechanism built into the Schengen acquis must be reviewed. Currently the annual report of the Schengen evaluation Committee (the so-called SCHE-VAL Committee) evaluates a member state's capacity to fully implement the Schengen acquis and proposes recommendations. However these recommendations carry little weight and are not taken seriously by member states. This issue has already been taken up by several members of the European Parliament with the rapporteur on the issue, Carlos Coelho (EPP, Portugal) advocating a complete reexamination of the current process.

What's next?

In response to the Franco-Italian proposal Commission president Barroso has said that the temporary re-introduction of checks at the internal borders are "one possibility", with the Commission SET to publish further proposals on May 4th. Member states will likely rule on the issue at the June 24th European Council.

The Franco-Italian crisis has cast light on Schengen's current shortcomings. However future changes should be driven by, and not contrary to, EU law and the fundamental principles that drive EU integration.


Marie Français