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EU: BORDERS: Sealing off Europe: Council Presidency proposals for protecting the "integrity of the Schengen area"

02 December 2015

- Council Presidency issues proposals to "prepare debate" at JHA Council meeting on 3 and 4 December
- Smart borders discussions rumble on in background

A Frontex operation should be set up in northern Greece, identity controls within the Schengen area should be increased and the Council should call for the reintroduction of border controls in "one or more" unnamned Schengen states, according to proposals from the Luxembourg Presidency of the Council of the EU.

Note from: the Presidency to: Permanent Representatives Committee (Part 2)/Council, Integrity of the Schengen area, 14300/15, 1 December 2015 (pdf)

The Presidency proposes that: "A Frontex operation at the northern borders of Greece be deployed without delay to address severe difficulties encountered with neighbouring countries."

There is also a proposal that the Council agree a Recommendation which would call for the reintroduction of border controls in "one or more Member States," although no particular state is named in the note.

According to Article 26 of the Schengen Borders Code (pdf):

"The Council may, as a last resort and as a measure to protect the common interests within the area without internal border control... recommend that one or more Member States decide to reintroduce border control at all or at specific parts of their internal borders. The Council's recommendation shall be based on a proposal from the Commission."

Steve Peers, law professor at the University of Essex, has said:

"This has been reported as a plan to suspend Schengen as regards Greece. But the wording of the document suggests a much broader intention - applying to the whole of Schengen. This intention is clear from the reference to continuing in force the border controls that many Member States have imposed this autumn, which can only be imposed for a maximum period of six months. The purpose of using the 'serious deficiencies' clause, instead of the normal clause on suspending Schengen, is clearly to allow a much longer suspension period. It may be that not every internal border would be subject to checks, but the intention seems to be to issue a blank cheque to this effect."

A further Presidency proposal is for:

"the possibilities for checking persons inside the Schengen area, including by the use of relevant databases, are fully exploited to ensure that irregular migrants are detected and registered and their cases processed."

The Presidency's paper is based on the responses to a questionnaire issued to Member States and is supposed prepare a debate between national ministers at the Justice and Home Affairs Council meeting on 3 and 4 December.

NOTE from: Presidency to: Strategic Committee on Immigration, Frontiers and Asylum/Mixed Committee, Lessons learned from temporary reintroductions of controls at internal borders - Questionnaire, 14073/1/15 REV 1, 13 November 2015 (pdf)

The note ends with a familiar call for "reinforcing the control of external borders."

The Presidency's proposals, in brief:

Consultations between member states

Member States that take unilateral "immediate action" to close their borders should "make all efforts to inform neighbouring Member States" and "reconfirm their commitment" to a set of procedures on this topic approved in March 2015.

Security at external borders

Member States should put "considerably more efforts" into preventing "illegal border crossings (entry and exit") through the external "green land borders"" and Rabit Border Intervention Teams (RABITs) should be "deployed as necessary for that purpose".

Plus:

"A Frontex operation at the northern borders of Greece be deployed without delay to address severe difficulties encountered with neighbouring countries."

Increasing checks regarding illegal migration

Identity controls should be stepped up:

"the possibilities for checking persons inside the Schengen area, including by the use of relevant databases, are fully exploited to ensure that irregular migrants are detected and registered and their cases processed."

Addressing serious deficiencies in external border controls

The Commission should propose:

"a Council recommendation that one or more Member States decide to reintroduce border control at all or at specific parts of their internal borders."

Finally:

"all possible measures should be taken aimed at strengthening the normal functioning of the Schengen area, in particular by reinforcing the control of external borders"

Smart borders in the background

The more immediate steps proposed by the Presidency sit alongside "longer-term measures in the field of border managmement", such as the smart borders project.

Working Party on Frontiers/Mixed Committee, Summary of discussions, 13193/15, 17 November 2015 (pdf)

Recent in-depth discussions are outlined in the minutes from a mid-November meeting of the Council's Working Party on Frontiers, including a rebuttal by the European Commission of the French government's proposals for fingerprinting, face scans, systematic database searches and entry and exit logging for everyone entering the EU:

"At any rate, the Commission expressed certain concerns on the suggestions submitted by FR and indicated that it would not intend for such an expansion of the scope in its future SB [smart borders] proposals."

The Council Legal Service, on the other hand, suggested that:

"more details would be needed in order to start the debate on this suggestion, firstly about the objective for the sake of which the personal data should be retained, secondly about the authorities which would be entitled to have access to the data base and thirdly about the situation and conditions allowing such access. This approach would help the identification of the legal basis that would be required, as well as the assessment of the proportionality of such solution."