Schengen States Extend Border Checks, Ignoring EU Court

The Commission has not launched infringement procedures against any of the relevant member states for continuing the border controls. “The issue is just too politically sensitive,” said Leon Züllig, a research assistant at the Chair for Public Law, International Law and European Law at Justus Liebig University Giessen, who is writing his dissertation on the EU’s internal borders. “The member states and their ministries of the interior would be furious.”

The European Commission did not respond to requests for comment by DW. In a hearing
 with members of the European Parliament in January 2021, the Commission argued that adapting the rules might be a better solution than initiating infringement procedures. It cited the fact that member states had stopped complying with the rules as evidence that the rules themselves might be inadequate.

The Commission’s recent State of Schengen report
 lists “lifting all long-lasting internal border controls” among its priorities for 2023.

It appears that the Commission intends to try to convince member states to voluntarily stop controls through changes to the Schengen Borders Code
. A first draft of such a reform failed in 2017 because the Council of the European Union, a roundtable of relevant ministers from member governments, did not support it.

Proposed Changes Require Mass Surveillance
The latest proposal by the Commission would introduce a range of changes to the rules governing the Schengen Area. Notably, it aims to expand the range of “alternative measures”
 that member states can introduce instead of border controls. In consultations about the reform
, member states specifically requested that technologies currently only used at the EU’s external borders be applied within the Schengen Area, as well.

Such technologies would include automatic surveillance and data collection by authorities through, for example, analysis of Passenger Name Record and Advanced Passenger Information data. This adds up to what Leon Züllig calls an “invisibilization” of border controls. “From the point of view of fundamental rights, these measures are perhaps even more dangerous than a physical barrier,” he said, “because they are ultimately relying on a kind of mass surveillance — including of EU citizens.”

These alternatives might also increase the risk of discrimination at the border. PICUM, an NGO dedicated to safeguarding human rights of undocumented migrants, voiced concerns
 that the proposal opens the door to racial profiling. The organization also refers to reports
 showing that surveillance technologies replicate and enshrine biases against marginalized people.

The proposal now lies with the European Parliament’s Civil Liberties, Justice and Home Affairs Committee, which has just presented its draft report
. The report suggests deleting some the relevant sections of the proposal, warning that “permitting more checks that will look and feel like border control does not match with the aim to offer EU citizens an area of freedom, security and justice without internal frontiers.”

Juan Fernando Lopez Aguilar, the chair of the committee, also told DW: “Any technological developments must be consistent with the Charter of Fundamental Rights and the EU data and privacy standards, which are the highest in the world.” The European Parliament has criticized the ongoing border controls in the past, and has generally supported free movement over increased national security.

It remains to be seen whether those suggestions, in turn, will be accepted by the Commission and the EU member states.

For now though, border controls in the free movement area will now enter their eighth consecutive year — with no consequences in sight.

Kira Schacht is data journalist at Deutsche Welle.This article was edited by Milan Gagnon, Peter Hille, and Gianna Grün, and is published courtesy of Deutsche Welle (DW).