A leaked Council document (see separate blog post) suggests in effect that the Schengen system should be suspended for up two years, due to ‘systemic deficiencies’ in the control of external borders by Greece. That would allow any Schengen States which wish to do so to maintain or introduce border checks on their ‘internal’ borders with each other. Probably not all Schengen States would take this opportunity, but many would (especially since a number of them already do so). This follows a recent press report in the Financial Times (paywalled), which states that some Member States are considering threatening to throw Greece out of the Schengen system, due to its management of refugees and migrants at the external borders.
It’s possible that the general threat to suspend Schengen is intended as a threat to suspend Greece only, but is simply badly drafted. Or perhaps the idea is to threaten to suspend the whole of Schengen, and pin the blame on Greece. Either way, in my view, this threat is seriously mistaken, for both legal and political reasons.
The Legal Framework
In principle, the Schengen system can’t be scrapped completely without amending the EU Treaties, since the Treaties refer to it several times. Instead, there are two types of possible suspensions: short-term (up to three months) and long-term (up to two years). The leaked Council document refers to use of the long-term suspension.
The short-term waiver rules have always formed part of the Schengen system. They allow individual Member States to reimpose checks on internal borders for a short time, for reasons of public policy and public security. Over the years, those provisions have often been invoked by Member States, usually for a few days during an international summit or football tournament. This autumn, they have been invoked more often and for longer periods, as a response to the refugee crisis affecting the continent. Since this reintroduction is only allowed for a maximum period of six months, there is an upcoming legal problem if Member States with to prolong these controls past next spring.
But a newer, different set of rules apply to suspending a Member State from the Schengen system. As a response to the ‘Arab Spring’ of 2011, and a spat between Italy and France over responsibility for some Tunisians, the Schengen rules were amended in 2013 in order to provide for the collective reimposition of internal border controls for up to two years. Those amendments need to be read in conjunction with the rest of the rules which they amended. So I suggest you read them in the codified version (showing the amendments), which is set out in an Annex to the report which I wrote for the SIEPS thinktank on the revised rules.
These amendments were generally understood as providing in effect for the possible suspension of individual Member States from the Schengen system. However, that is not expressly set out in the rules, and the leaked Council document clearly intends something broader, since it refers explicitly to continuation of existing border checks, ie between Germany and Austria, not (only) between other Member States and Greece. But the role of individual Member States is still relevant, because this collective suspension of Schengen can only be triggered if there are ‘serious deficiencies’ in how one Member State applies the Schengen external borders rules.
The process would start with a Commission recommendation following a Schengen evaluation, according to the separate rules (also amended in 2013) on the process of assessing whether Schengen states comply with their obligations. If the Commission finds in its report that there are ‘serious deficiencies’ in a Member State complying with its external border control obligations, then it can recommend that this country take ‘specific measures’, including accepting assistance from the EU’s border agency, Frontex, and submitting plans for Frontex to assess.
If there is not enough action on settling these problems within three months, the process can escalate. In ‘exceptional cases’ where there is a ‘serious threat to public policy or public security’ in the Schengen area or parts of it, the Council can recommend ‘as a last resort’ to Member States that they reimpose border controls against that Member State for periods of six months, renewable up to the two-year maximum. It’s arguable that this process can be fast-tracked and be applied even without giving the Member State three months to fix its problems. Since Member States would have to vote in favour of it in the Council (by a qualified majority), it can be assumed that most Member States would then follow this recommendation. The Council has to act on a proposal from the Commission, but Member States can request the Commission to make such a proposal.
In adopting this recommendation, the Council has to assess whether it will ‘adequately remedy’ the threat to public policy, as well as the ‘proportionality’ of the measure in relation to the threat. This must be based on detailed information, and consider the EU assistance which was provided or which could have been requested, the likely impact of the deficiencies in border control upon the threat to public policy or public security, and the impact on the free movement of persons.
The legality of suspending Schengen and/or sanctioning Greece
It’s not clear exactly where we stand in the process as regards Greece. The Commission has recently adopted a Schengen evaluation report, but it’s not public. It’s not even clear if that report concerns Greece (all Schengen states are evaluated). So it would take a while (three months after a formal finding of ‘serious deficiencies’, which hasn’t happened yet as far as I know) before Greece could be sanctioned, unless the process is fast-tracked.
Indeed, the Council document seems to be aiming to fast-track the process. It wants the Council already to request a Commission recommendation to suspend the abolition of border controls for up to two years. Since (as far as I am aware) there’s not even a finding of Greek ‘serious deficiencies’ yet, there’s obviously not yet a three month period during which those problems continued. And the Council document doesn’t even attempt to assess whether the substantive criteria apply; the intention simply seems to be to find some way to justify a longer period to continue the internal border checks which Member States have reintroduced recently.
If the current threats get to the stage of a Council Recommendation that border controls be reimposed, it’s not clear if Greece could sue the Council in the EU Court of Justice (since technically Recommendations are not binding), or would have to sue Member States for following the Recommendation instead. Individual travellers could also sue Member States in national courts for imposing border controls, indirectly challenging the legality of the Recommendation; national courts could then send the issue to the Court of Justice.
Procedural issues apart, is there a substantive case for suspending Schengen rules and reimposing border controls, because of ‘serious deficiencies’ due to Greek control of the external border? In my view, there are serious doubts that there is such a case, for two main reasons.
First of all, according to the Financial Times article, other Member States are annoyed because Greece did not accept the support of Frontex, register enough asylum-seekers, or request humanitarian aid to assist them. While the failure to request support from Frontex is referred to in the EU border controls legislation, the other issues are not. And for very good reason: because the failure to control the numbers of refugees at the external borders is NOT a breach of the Schengen rules.
This assertion may seem surprising, because the critics of the EU’s response to the refugee crisis – on either side of the argument – often assume that EU law requires refugees and asylum-seekers to be refused entry at the borders. From one side, the EU is criticised for letting refugees and asylum-seekers in, and therefore ‘not protecting its borders’. From the other side, the EU is criticised for establishing a ‘Fortress Europe’.
Both sides are clearly wrong – at least, on this specific legal issue. This follows from the Schengen Borders Code itself, which expressly exempts refugees from the rules on penalising non-EU citizens for unauthorised entry across the borders, and includes an exemption from the usual conditions on border crossing if the non-EU citizen is claiming asylum. It equally follows from the EU’s asylum procedures Directive, which requires Member States to process not only asylum applications made on the territory, but also those made at the border. (Of course, Member States don't always fully comply with their EU legal obligations).
So it’s really the border crossing rule itself which is controversial, not Greece’s failure to apply it. There’s a political problem with the rule in practice, either because (from one side’s perspective) it is no longer keeping out enough people, or (from the other side’s perspective), it is too difficult for genuine refugees to reach EU territory without the risk of drowning or paying money to smugglers.
But for the purposes of finding that there are ‘serious deficiencies’ in Greek control of the external border, the point is that Greece is not failing in any obligation to stop asylum-seekers crossing the external borders – quite simply because there’s no such obligation. Just the opposite. Of course, due to the sheer scale of the numbers involved, it’s difficult for Greece to operate an effective asylum system, but that failure is subject to a wholly separate process. Indeed, the European Court of Human Rights and the CJEU have already said that Member States cannot send asylum-seekers back to Greece, because the asylum system has effectively collapsed there. The Dublin III Regulation sets out rules which apply in the event that the Dublin system has to be suspended for those reasons, and the EU has recently adopted Decisions (discussed here) to relieve the burden on Greece a little by relocating some asylum-seekers from that country.
Of course, some of those who cross the Greek border do not apply for asylum immediately, or later fail in their asylum applications. According to UNHCR statistics, about half of those recently arriving in the Greek island of Lesvos (the main destination) are coming from Syria and Iraq (countries with high refugee recognition rates) and half are coming from other countries, with lower recognition rates. In that context, it is legitimate to suggest that Greece ought to accept assistance from Frontex and other EU agencies, and that Frontex in particular has a role coordinating the fingerprinting and registration of people when they first arrive. (Fingerprinting of irregular migrants and asylum-seekers isn’t a panicked authoritarian response to the refugee crisis, as is sometimes suggested, but a long-standing EU law obligation, going back to 2003).
The second problem is the link between the Greek ‘deficiencies’ and the reimposition of border controls, either against Greece or between other Schengen states. There’s certainly no link between the deficiencies and the borders between Greece and other Schengen States, since none of those are land borders, and (would-be) asylum-seekers and refugees travel by land between Greece and other Member States. So checking people flying between Greece and other Schengen States would be hugely disproportionate to the relevant deficiencies.
What about border controls between other Schengen States? These are the controls that the Council document expressly wants to continue. Here there is a link between the people originally entering via Greece and later trying to cross the Austria/Germany border, for instance. But again, the real deficiencies are with the EU’s asylum system, not Greek border controls, since EU rules provide for admission of asylum-seekers. Asylum-seekers move on to other Member States because the Dublin rules were not drawn up with today’s increased numbers of asylum-seekers in mind, and Greece can’t manage the numbers that it would be responsible for under the rules. That’s certainly a problem – but that problem is not caused by Greek deficiencies in external border controls. The EU has to use the legal instruments available under its asylum policy to try to fix it.
Although it’s not evident from the face of the document, the political context of the Council paper may be an attempt to convince Greece to agree to further measures relating to border control. That’s evident from the Financial Times article, which conveys several Member States’ allegations against Greece (summarised above). In turn, the Greek government has defended itself and made counter-allegations against the EU, which are summarised in a Guardian article.
In some ways, this resembles the attempt by some Member States this summer to coerce Greece to leave the euro ‘temporarily’. As I argued at the time, this process did not have a shred of legality, unless we use the creative argument that Greece had never legally joined the euro.
However, there are differences as regards Schengen. There is on paper a process to suspend Schengen rules temporarily; the only question is the correct interpretation of those rules. Undoubtedly some will not share my interpretation above, and would argue that defects in the asylum system are implicitly part of the assessment of whether there are 'serious deficiencies' in external border control. In the absence of case law to date, it’s an open question which of us would be correct. It’s also an open question whether the Commission – which has made much of its strong support for Schengen – would be willing to suggest a suspension for two years.
Even if it’s legal to threaten Greece this way, is it wise? The EU was heavily criticised for trying to strong-arm Greece as regards the euro – although technically it wasn’t the EU institutions making the threats last summer, but rather the parallel ‘Eurogroup’ bodies which are not an ordinary part of the EU’s political system.
Far better for the EU to redouble its efforts to help both Greece and the people concerned, by ensuring that there are decent reception centres and living conditions in the country, by making greater effort to ensure that the relocation system works, and by working with Turkey to genuinely improve the living conditions of refugees there, so that fewer of them want to leave (more on that recent EU/Turkey deal in a later blog post).
As regards Schengen itself, if a temporary suspension is strongly desired, it might be better to provide for it by means of a legislative amendment to the Schengen Borders Code (with a ‘sunset clause’ providing for its expiry, since permanent suspension would violate the Treaties) rather than by the indirect means of threatening Greece. Or an amendment to the rules on checks near the internal borders could justify some occasional checks in the event of dysfunctional applications of EU asylum rules, if fixing those rules proves politically impossible – as well it might.
Barnard & Peers: chapter 26
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