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Schengen dispute continues

Anna Sonny, 8 February 2013

As an agreement on the EU budget for 2014-2020 finally takes shape, the on-going dispute about the Schengen Convention remains unresolved.

At a Council meeting on June 7th 2012, the European Union’s home affairs ministers unanimously decided to establish a new Schengen Evaluation Mechanism in response to concerns about border security, which became particularly acute during the Arab Spring. The agreement gave national governments the power to re-impose checks at internal Schengen borders in unforeseen emergencies (such as sporting events and major political meetings) for up to two years without needing the consent of the European Commission or the European Parliament.

The previous evaluation system for Schengen was based on an inter-governmental peer review mechanism, with Schengen States checking on each other’s implementation and the European Commission participating only as an observer. In September 2011, the Commission initiated a proposal for a change to the Schengen Borders Code that called for more ‘EU-based Schengen governance’. This would mean unannounced, Commission-led evaluators being sent to national border crossing points to verify the application of the Schengen rules. Under the proposal, the decision to re-introduce internal border controls would be ‘taken at the European level on the basis of a proposal by the Commission backed by a qualified majority of Member States’ experts.’ The changes to the text were supposed to be subject to the regular co-decision procedure, enabling the Parliament and the member states to reach a compromise.

Interior ministers from the Schengen states, however, decided to change the legal basis of the proposal in June, putting the adoption of the evaluation mechanism solely into the hands of member states.

The Commission and the Parliament saw the move as short-circuiting the democratic process and as an attempt to claw back decision-making powers on Schengen from the EU to nation states. In retaliation, the European Parliament blocked five bills on justice and home affairs issues until they were included in the decision-making on Schengen. Since then discussions on these reports have resumed.

The dispute was problematic on two levels ; it was not only an inter-institutional struggle between the Commission and the Parliament on one side and the Council of Europe on the other, but it was also a row over whether decisions on border security should be taken at the European level or by nation states. The double-edged nature of the dispute and the close connection between the reform of the Schengen Evaluation Mechanism agreed by the Council and the Commission’s proposals to introduce a new clause into Schengen Borders Code made the relationship hard to clarify and the steps to a solution difficult to find.

In James Brokenshire’s (Minister of Security for Home Office) letter to British European Scrutiny Committee of 17 July 2012, he says:

‘Finally the Minister notes that changes to the Schengen Borders Code have to be agreed by the European Parliament as well as the Council and it remains to be seen whether the EP will agree that provisions on the temporary re-imposition of internal border controls should be included in the Schengen Borders Code rather than the new evaluation mechanism.’

The Presidency has however decided that the Schengen Evaluation Mechanism text will not be tabled for final agreement and adoption until the Schengen Borders Code has been finalised. At this time we do not know what timescale for that negotiation will be given the European Parliament’s decision to suspend co-operation with the Council on this matter. ‘

The issue, raised towards the end of the Danish Presidency, had still not been resolved by the end of the Cyprus Presidency (June – December 2012).

On November 23rd 2012, the European Commission published a report on the functioning of the Schengen area (between 1st May 2012 – 31st October 2012), but an agreement on the reform to the Schengen Borders Code and a decision on the Schengen Evaluation Mechanism had still not been reached.

Officials suggested imposing a bridging clause or ‘passerelle’ between the Council’s agreement and the Commission’s proposal as a possible solution. A bridging clause allows the Council of Ministers to decide unanimously to replace unanimous voting in the Council of Minsters with qualified majority voting (QMV) in specified areas with the previous consent of the European Parliament. This would require the Parliament and the Council reaching an agreement on the bridging clause, in order to arrive at a compromise on the reforms.

A decision on the accession of Romania and Bulgaria to the Schengen Convention has also been delayed until March this year, due to a lack of consensus among the 27 nation bloc. With member states concerned about having to open up their borders to a potentially large influx of Romanian and Bulgarian migrants, it is unlikely that home affairs ministers will hand decision-making powers on Schengen back to the Commission.



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