PROBLEM 1A: INTERNAL AND EXTERNAL FRONTIERS OF THE EUROPEAN SPACE
1. What is the Schengen-area?
2. What are the Schengen-rules on border checks for persons entering the Schengen Area?
Advice: Look at the legislative changes of 15 March 2017 for Art. 8 SBC 2016.
3. Is it possible for Schengen Member States to conduct checks within their territory?
4. What are the rules regarding the reintroduction of border controls/closing the borders?
Be aware: Schengen Borders Code has been amended in 2016, while some of the prescribed reading material
dates from before this amendment. Look at the Annex of the SBC 2016 which provide an overview of the old and
new Articles of the SBC 2016; the SBC 2016 has been subject to several amendments, the latest consolidated
version of the SBC dating back from June 2019.
1. What is the Schengen-area?
Political context and legal framework
- The original foundation for the area without internal frontiers as a distinctly European project can found in the 1984
Commission White Paper on Completing the Internal Market. In it, the abolition of internal borders was described
as an important political project, but much more emphasis was put on its economic dimension by stressing market
benefits.
- The Schengen border control system developed from the 1985 Schengen agreement between five EU member
states – Belgium, France, Germany, Luxembourg and the Netherlands (later Spain and Portugal) It operated as a
separate system outside EU law until 1999.
- Between 1995 and 1999, all 22 member states joined the system except Ireland and the UK. Non-EU member
states Iceland, Norway, Liechtenstein and Switzerland also joined the system plus the six EU states outside
Schengen (Bulgaria, Croatia, Cyprus, Ireland, Romania and the UK). By the end of 2007, all the 2004 member states
had joined the Schengen system of no border controls on persons with the sole exception of Cyprus, owing to its
problems in controlling its borders.
- The Schengen Agreement set out the principal objective of abolishing border controls between the participating
States, and detailed some of the “accompanying” measures aiming at the reinforcement of the control of the
external border.
- It took until 1995 before the Agreement was actually put into effect and border controls between those seven
States were abolished.
- Schengen was put forward as “enabling the EU to develop more rapidly into an area of freedom, security and
justice”.
Five key points are of immediate importance:
1. The language of ‘crisis’, whether a migration crisis, refugee crisis or border-control crisis is much exaggerated.
We do not yet have figures of exactly how many people came to the EU this year to seek international protection, but
it is unlikely to much exceed one million. Yet, according to FRONTEX, the EU’s external border agency, more than 320
million foreigners entered the EU in 2014 – most of them tourists – and cause no disturbance to the external borders
of the Schengen area. If there is a crisis at all, it is a policy crisis regarding the admission and reception of refugees, as
emphasised in points 4 and 5 below.
2. Schengen open borders are here to stay; reports of reintroduction of intra-Schengen border controls are much
exaggerated. Only five Schengen states have exceptionally introduced such controls, and one (Slovenia) has already
lifted them; two states (France and Malta) had already planned border controls for substantial events in their states;
and only France has announced the prolongation of the controls in light of the Paris attacks of 13 November 2015.
Furthermore, the controls have been carefully targeted at a small number of border-crossing points and according to
the European Commission have not given rise to any complaints by EU citizens of interference with their free
movement rights.
3. All member states that have overtly reintroduced controls with other Schengen states have done so in
accordance with the EU-driven rule of law model of re-introduction of internal border checks as laid down in
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,Articles 23–25 Schengen Borders Code (SBC), which since 2013 is subject to the scrutiny by the European
Commission as regards their justification, proportionality and necessity.
4. The real challenge for Schengen border controls is ensuring that they are carried out in a manner consistent with
the member states’ international obligations to refugees, and the EU Charter of Fundamental Rights, including the
right to non-discrimination. The introduction or removal of Schengen border controls should have no impact on the
right of asylum-seekers to cross the external and internal Schengen borders to seek asylum. Refugees are entitled to
seek asylum and to enter and stay on the territory of a host state for this purpose. Those whose application for
international protection receives a negative decision must be given effective remedies in light of Article 47 of the EU
Charter of Fundamental Rights.
5. The Schengen external border must be a place where human dignity is respected and asylumseekers receive the
legal protection they are entitled to. This is what the EU institutions and member states need to work on in the next
generation of EU integrated border management. A key challenge for any new European Border and Coast Guard
model will be what a refugee and fundamental rights friendly external border control will look like. It also calls for a
transparent and informed discussion on which ‘Schengen’ we exactly want within current democratic rule of law and
fundamental rights remits.
- The Schengen Borders Code (SBC) of 2006 codified most of the relevant Schengen rules (from the Schengen
Implementing Agreement 1990 and other Schengen instruments) concerning a) controls at external borders, b)
removal of controls at internal Schengen borders (and their temporary re-introduction) and c) police controls of the
zone behind the internal border.
- Article 67 TFEU: the EU shall ensure the absence of border controls, and frame a common policy on asylum,
immigration and external border control.
Legal basis
Art. 77 & 79 TFEU – Legal basis of Schengen.
- Art. 77 TFEU – The absence of any controls.
- Art. 77(1) TFEU: The EU is given the competence to develop policies with regard to the absence of internal border
controls, external border control, and the gradual introduction of integrated management system for external
borders.
- Art. 77(2) TFEU: subparagraphs (a) to (e) provides legal bases for measures to be taken by the Parliament and
Council in order to achieve these policies, in particular concerning (a) a common policy on visas and other short-stay
residence permits; (b) external border control; (c) rules on the freedom to travel for third country nationals for a
short period within the Union; (d) necessary measures for establishing an integrated management system for
external borders; and (e) the absence of internal border control.
- Art. 79 TFEU: (1) common immigration policy, fair treatment for Third Country Nationals (TCN) (is about entering
the Schengen from outside). (2) → measures to be taken according to (1).
- Art. 3(2) TEU: free movement of Union Citizens.
Schengen Border Code (SBC)
- Can be seen as the primary building block of the Schengen acquis (body of rights and obligations).
Art. 1 SBC – Regulation consists of rules governing border control of persons crossing the internal borders of the
Member States of the Union.
Art. 2 SBC – Definitions
- Art. 2(1) SBC – Definition ‘internal borders’
- Art. 2(2) SBC – Definition ‘external borders’
- Art. 2(5) SBC – Definition ‘persons enjoying the right of free movement under Union Law’
- Art. 2(6) SBS – Definition ‘third-country national’
Art. 3 SBC – The scope of the regulation.
- Art. 3(b) SBC: rights of refugees.
Art. 4 SBC: fundamental rights
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,- Non-refoulment principle: not being allowed to send asylum seekers back because of the dangers that deceive
them in the country of origin.
2. What are the Schengen-rules on border checks for persons entering the Schengen Area?
Schengen Border Code (SBC) – Rules on border checks at external borders
Art. 5 & 6 SBC – General rules on the crossing of external borders and the entry conditions for third country
nationals.
Art. 6 SBC – about conditions for third-country nationals
1. Valid travel document
2. Valid visa
3. Justified purpose and conditions of the intended stay
4. No alert issued in the SIS
5. Not a threat public policy, intimal security, public health or the international relations of any of the Member States.
Art. 7 SBC – General rules on the conduct of border checks (respect for human dignity, proportionality & prohibition
of discrimination.
Art. 8 SBC – Rules on how border checks should be conducted at external borders on persons.
(1) – Cross-border movement at external borders shall be subject to checks who will be carried out in accordance
with this chapter.
(2) – On entry and on exit, persons enjoying the right of free movement under Union Law shall be subject to the
following checks.
- Verification of the identity and the nationality of the person and of the authenticity and validity of the travel
document for crossing the border.
- Verification that a person is enjoying the right of free movement under Union law is not considered to be a threat to
the public policy, internal security, public health or international relations of any of the Member States.
(3) Rules on how border checks should be conducted on third-country nationals.
The legal provisions on reintroducing controls at internal Schengen borders
Article 23 SBC: general framework for the temporary reintroduction of border controls at internal borders
- The first requirement is that there is a “serious threat to public policy or internal security” in a member state.
Where there is such an emergency, the state may exceptionally reintroduce border control at all or specific parts of
its internal borders for a limited period of up to 30 days or for the foreseeable duration of the serious threat if its
extension exceeds 30 days.
- But the scope and duration of the temporary reintroduction of border controls must not exceed what is strictly
necessary to respond to the serious threat. Furthermore, border controls can only be reintroduced as a last resort
and in accordance with the procedure set out in Articles 24, 25 and 26.
The total period of the reintroduction of border controls must not exceed six months. In exceptional
circumstances set out in Article 26 SBC, the total period may be extended to a maximum length of two years.
Article 23a SBC criteria require that a member state decide that the measure is ‘a last resort’ and that the
reintroduction of border controls is temporary in nature. On prolonging the internal border controls, the state must
assess whether the measure is likely to adequately remedy the threat and the proportionality of the measure in
relation to the specific threat. In doing so, the state must take into account the following:
1. the likely impact of any threats to its public policy or internal security including following terrorist incidents or
threats including those posed by organised crime; and
2. the likely impacts of the measure on free movement of persons within the Schengen area.
Article 24 SBC: procedure for the temporary introduction of border controls
- The first step is that the state must inform the other Schengen states, the Commission, the European Parliament
and the Council – for ‘normal’ foreseen threats the latest four weeks before the introduction of the border controls.
A shorter period is permitted where the circumstances become known less than four weeks before the planned
reintroduction of controls.
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, - The notification must include four elements:
1. the reason for the proposed introduction, including all relevant data detailing the events that constitute a serious
threat to public policy or internal security;
2. the scope of the proposed reintroduction specifying for which parts of the internal borders controls will be
introduced;
3. the names of the affected crossing points; and
4. the date and duration of the planned reintroduction.
Article 25 SBC: applies in cases requiring immediate action. Where there is a serious threat to public policy or
internal security that requires immediate action, a state may, exceptionally, reintroduce controls for a period of up to
ten days.
Article 26 SBC provides for exceptional circumstances where the overall functioning of the area without internal
border control is put at risk as a result of persistent serious deficiencies relating to external border control.
Countries that have invoked Article 25 SBC:
1. Germany: 'uncontrolled and unmanagable influx (influx) of third country nationals into German territory'.
2. Austria: huge migrant flow.
3. Slovenia: uncontrollable migrant flows.
4. Sweden: dua to migrant pressure.
5. Norway: unpredictable migrant flow.
6. France and Malta: after terrorist attacks in Paris 2015, Malta because of migrants.
Most of the seven states introduced controls only at a small part of their internal borders or at certain specific
points.
What about the refugees?
One aspect of the Schengen border control debate as set out above is the absence of discussion about refugees,
other than the Commission’s rather bland statement that the controls had not affected the right of people seeking
international protection.
Article 3 SBC: the scope of the Regulation is without prejudice to “the rights of refugees and persons requesting
international protection, in particular as regards non-refoulement.”
This means that the introduction or removal of Schengen border controls should have no impact on the right of
asylumseekers to cross the external and (arguably) internal Schengen borders to seek asylum.
Rather than addressing these problems, Schengen states appear to have chosen to reintroduce border controls
among themselves in part justifying this on the need to arrange registration for asylum-seekers, but also as a
measure of public policy and internal security on the basis of threats such as terrorism.
- One of the key questions that must be asked of the member states is what a refugee and fundamental
rightsfriendly external border control would look like.
Here the Schengen States find themselves in a kind of ‘solidarity-trap’: where on the one hand, the reintroduction
of internal border controls is used as a sanction to those states who are not effectively controlling their external
borders, and where on the other hand, the frontier states are reluctant or unable to manage the first registration of
the large groups of asylum-seekers in order to activate the Dublin mechanism.
Rule of law and the reintroduction of border controls
All member states that have overtly reintroduced controls with other Schengen states have done so in
accordance with Articles 23–25 SBC.
Questionable has been whether the Schengen states have been fully complying with Article 6 SBC, which states:
1. Border guards shall, in the performance of their duties, fully respect human dignity. Any measures taken in the
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