Schengen in stalemate: Between national reflexes and necessary reform

Deutsch

By Daniel Schade

“The current fragmentation of the Schengen area and the persistent failure to apply existing EU law make it clear that Schengen reform is overdue.”

The open internal borders of the European Union are one of the most visible achievements of European integration. This is made possible by the so-called Schengen area and the legislation on which it is based. In normal times, Schengen is experienced through the very fact that national borders are virtually invisible within it. In recent years, however, travellers have increasingly encountered border controls that were technically abolished long ago – and are thus experiencing the importance of Schengen for European cross-border unity through its absence.

The almost permanent return of long-abolished border controls in parts of the Schengen area began in 2015 over the course of the so-called migration crisis. At the height of the COVID-19 pandemic, such border controls peaked as freedom of travel was restricted at most internal Schengen borders. Since then, a semblance of normality has returned. However, some border controls, and particularly those introduced by six states in 2015, remain in place today. One of these states is Germany, which is located in the centre of the EU and whose leaders are always keen to advocate for European integration in their rhetoric. However, by maintaining border controls towards Austria, this proponent of European integration is simultaneously one of the states which has violated both the spirit and the law of the Schengen area.

Schengen and European identity

This article provides an overview of Schengen’s current woes and its underlying structural problems. In so doing, it highlights why a reform that would eliminate either is politically unlikely. Here, the politics of the Schengen area are exemplary for current constitutional policy debates within the EU. Schengen thus serves as one of the sites in which conflicts over the constitutional identity of the EU and the question of what kind of political system it should develop into – be it federal, confederal or something entirely different – are fought over.

The next section briefly explores the internal workings of the Schengen area, as well as the tensions which underlie it. It then addresses the increasingly political issue of Schengen membership, before turning to the core problem of an increasingly hollow promise of open internal borders. Finally, it considers why a fundamental reform of Schengen, which would move further competencies to EU-level, is desirable, yet not realistic given Schengen’s underlying political dynamics.

Schengen – an introduction

As for European integration itself, there is a fundamental tension in the Schengen area between the need for supranational European regulations and the desire of individual member states to retain as many competences as possible at the national level. This is since, just like for other EU policy areas, the advantages of the Schengen area can only fully unfold if the rules are uniform everywhere and implemented equally. At the same time, however, this requires the member states to relinquish some of their decision-making competences.

The Schengen area makes this tension particularly visible. On the one hand, core aspects of statehood are at stake. After all, the opening of the EU’s internal borders affects notions of territoriality and the ability to exercise the state’s monopoly on the use of force. On the other hand, Schengen is essential for the success of the European single market which remains one of, if not the core policy of the European Union. Here, open borders not only facilitate the cross-border exchange of goods within the EU’s internal market, but also enable the full and smooth exercise of the free movement of persons, i.e. cross-border living and working in the EU.

Tension between supranational regulation and national sovereignty

The current design of the Schengen area reflects both perspectives discussed here: It is based on a supranational arrangement that preserves national sovereignty as much as possible. Thus, on the one hand, the Schengen area creates a system of open internal borders through the protection of Schengen external borders in the most unified way possible. In addition, the possibility of random spot checks by police and border control authorities in the area of Schengen’s internal borders is intended to allow states to maintain public safety internally.

On the other hand, so as to enable the above supranational integration and limitation of national powers, the member states were allowed to retain far-reaching competences to re-establish controls at their own national borders largely autonomously, if only temporarily and in special circumstances. At least formally, a balance between the two perspectives was thus found on the basis that such controls may not exceed six months.

The Schengen area is not identical to the EU

The high profile nature of Schengen’s internal tensions is probably also the reason why this policy has not been developed in sync with other aspects of European integration and why it still retains a special status related to its membership. The original version of the Schengen area which developed since 1985 was an initiative created outside the treaties of the then European Economic Community. It was then only gradually transformed into a regular EU policy in which the so-called ordinary legislative procedure applies, thus requiring a majority vote in both the Council of the EU and the European Parliament to approve amendments to its underlying legislation.

However, even today, Schengen remains a special EU policy given that its membership is not identical with that of the EU. Like the Eurozone, Schengen is an expression of what is called differentiated integration. On the one hand, not all EU member states are members of the Schengen area; on the other hand, there are some non-EU member states that participate in in it. For the 27 EU countries a distinction can be made between those that cannot and others which do not want to be Schengen members due to their particular characteristics. In the latter case, countries such as the Republic of Ireland do not want to join the Schengen area due to the existing special regime of its common open border with Northern Ireland. Romania and Bulgaria fall into the former category. While both want to join the Schengen area, they are currently unable to do so.

“This far and no further”: The politicisation of Schengen membership

The differentiated character of Schengen integration means that the question of its membership is determined politically. On the one hand, there are binding legal and political rules that can be used to determine a state’s readiness for membership in the Schengen area. More relevantly, however, like membership in the EU itself, admission to the Schengen area is ultimately a political decision and must be approved by all existing members. This has meant that Schengen enlargement has proceeded at a glacial pace as just like for EU enlargement the issue of enlarging Schengen has increasingly become the subject of politically charged debates at the national level.

Although the Schengen area was successfully expanded by one state with Croatia’s accession on 1 January 2023. However, Romania and Bulgaria, which joined the EU in 2007 and thus much earlier than Croatia, remain outside. Although the European Commission has certified that both countries are ready for Schengen accession, this was not to convince all member states to approve them to join Schengen at the same time as Croatia.

Considerable conflict potential

In the relevant vote at the end of 2022, the Netherlands and Austria were the only states to vote against admission. This probably had more to do with domestic political debate in these countries than any substantive concerns against both countries’ accession. Although Austria’s rejection was justified by the insufficient fight against irregular migration in Romania and Bulgaria in public, this argument does not correspond to the reality of European migration flows.

The domestic reaction to this vote both in Austria and in Romania demonstrate the enormous conflict potential related to Schengen membership in today’s EU. However, as the following section will show, accession is only a secondary concern when compared to the even more problematic continued erosion of Schengen achievements by a group of countries, which once more includes Austria, but also Germany.

Open borders only on paper? The tense state of Schengen

Although the blockade of the Schengen enlargement is unfortunate both for the states concerned as well as for the uniform application of the free movement of persons of the EU, it is currently only the second biggest issue facing the Schengen area. Instead, the systematic undermining of the Schengen rules by individual members since the so-called migration crisis in 2015 has emerged as the central risk to this core aspect of European integration. Here six states – Austria, Germany, Denmark, Sweden, Norway, and France – have more or less permanently maintained border controls with some or all of their neighbours for now more than seven years.

The concerned states mainly justify this by citing the risk of irregular migration and the insufficient protection of the Schengen external borders. While the states formally adhere to the six-month time limit for the reintroduction of border controls, they undermine it by simply reintroducing border controls again every six months. Furthermore, it has been reported that de facto border controls are being carried out at some internal borders even without a formal reintroduction of border controls.

The Commission remained inactive as guardian of the treaties

Although the European Commission, in its stylised role as “guardian of the EU Treaties”, could have reprimanded these events and ultimately have them reviewed by the European Court of Justice, it has not done so. There are probably political reasons for this, as such an action would offend central member states in a politically sensitive policy area that has gained high public salience in the context of the so-called migration crisis. In addition, given the sensitivity of the border and migration issue, there is a great risk that the states concerned would not fully comply with a possible court ruling, which would further increase the fragility of the Schengen area.

Although the member states negatively affected by border controls complain about this undermining of the Schengen area in public, they are also reluctant to have the maintenance of border controls reviewed by the courts. In some cases, like Austria, this may be due to the fact that the states negatively affected by border controls make use of border controls themselves. And even countries that do not make use of border controls at present may want to do so in the future. This is since they might worry that other states could then have those border controls reviewed and presumably brought down in court as a kind of “retaliatory measure”.

An ECJ ruling is ignored

Thus, it was left to individual citizens who were personally affected by the border controls to start a review of the long-standing practice of the above-mentioned member states. In a preliminary ruling in April 2022, the European Court of Justice subsequently declared the existing practice unlawful, at least for Austria. The court ruled that the maximum time limit of six months must be interpreted narrowly and therefore border controls could not be ordered on the same grounds time and again. After six months, member states would only be able to reintroduce border controls unilaterally if there was a different threat to public security.

However, despite this ruling, the affected states have not yet abolished their border controls. Instead they but they keep re-introducing them every six months as before. At first, they simply ignored the ruling, which formally only affected Austria in any case. Later, they changed their strategy and tried to make the extensions at least superficially compliant with the ruling by using slightly different justifications.

For example, the latest extension of German border controls to Austria until November 2023 was formally justified with arguments such as the activities of hostile intelligence services. In public discourse, however, the stated reason remains the risk of irregular migration, as it has been since 2015. The continuation of border controls by Germany and other states thus remains in blatant contradiction to the spirit of the Schengen area and acutely endangers its achievements.

The many pitfalls of Schengen reform

The current fragmentation of the Schengen area and the persistent failure to apply existing EU law make it clear that Schengen reform is overdue. This was particularly evident during the Covid-19 pandemic, which showed that the Schengen area is not prepared for such exceptional situations.

Although the additional border controls that became widespread during the pandemic were short-lived, they also had a significant negative impact on key aspects of the Single Market that continued to be necessary during the pandemic, such as the free movement of goods. The fact that many problems created by the additional border controls could only be solved by improvisation and ad hoc coordination also shows that further integration steps are needed in this area.

In fact, several attempts have already been made to reform the Schengen Borders Code, which forms the legal basis of the Schengen area. However, this has proven particularly difficult due to the link to EU migration policy, as established by both political reality and member states’ perception.

The Commission’s reform proposal does not resolve the tension

The most recent proposal by the European Commission to reform the Schengen Borders Code from the end of 2021 once more highlights the tension between the need for further integration and the desire of member states to retain ultimate control over their own borders. In its proposal, the Commission has proposed to formalise and perpetuate various crisis management mechanisms, in particular for coordination between Schengen member states, which proved useful during the Covid-19 pandemic. This would represent a further integration step for the Schengen area.

At the same time, however, the proposal would allow individual states to now reintroduce de facto border controls for an indefinite period under certain circumstances. This would thus legitimise their existing practice and represent a step backwards for Schengen integration, with the risk of permanently fragmenting the Schengen area.

No solution in sight

The reaction of the member states to this proposal underlines this contradiction once again. While they want to strengthen the coordination mechanisms, they also intend to maintain their national decision-making autonomy even beyond the Commission’s proposal. On the other hand, the European Parliament has already demanded in earlier reform proposals to return as soon as possible to a system in which the internal borders within the Schengen area are in fact largely open.

Given these conflicting positions, it is likely that the contradiction underlying Schengen integration will not be resolved through legislative negotiations in the near to medium term. For the foreseeable future, Schengen is thus likely to remain an example of a European policy area in which declared ambitions are not matched by reality.

Daniel Schade is Assistant Professor for European Union Studies at the University of Leiden.

This contribution is part of the thematic forum “Supranational governance between diplomacy and democracy – current debates on EU reform”, published in cooperation with the online magazine Regierungsforschung.de.

Pictures: Closed border between Austria and Germany during the COVID-19 pandemic: Wald-Burger8 [CC BY-SA 4.0], via Wikimedia Commons; portrait Daniel Schade: Das Progressive Zentrum [all rights reserved]; EU flag: Arno Mikkor (EU2017EE) [CC BY 2.0], via Flickr.