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SPEECH/12/78

Cecilia Malmström

European Commissioner responsible for Home Affairs

The importance of safeguarding Schengen

European Parliament S&D Conference on 'Upholding Freedom of Movement - An Improved Schengen Governance'

Brussels, 8 February 2012

I am grateful for the opportunity to speak with you, at this timely moment, about how we see the future of Schengen. I am particularly pleased that both the Council Presidency and the Parliament's two key rapporteurs (Coelho and Weber) are all present – we will need continued constructive inter-institutional cooperation if we are to make good progress under the Danish Presidency.

Last September, the Commission adopted a Communication and two legislative proposals whose impact – if and when adopted by the Parliament and Council – will be to strengthen the overall functioning, credibility and sustainability of the Schengen area, and in particular to better equip it to deal with exceptional circumstances.

I am very pleased by the broad support our proposals have received in the Parliament, across all of the political groupings, and am pleased to report that progress is also being made in the Council. There are, however, still some important obstacles to overcome before agreement can be reached.

I would like to call today on both legislators to adopt a constructive and pragmatic stance over the coming weeks and months so that an acceptable deal can soon be reached.

The importance of safeguarding Schengen

The free movement of persons, goods and services is central to the European project. The positive impact of these freedoms on European citizens, and on the growing prosperity of our economies over the past decades must not be underestimated.

But we are living in difficult times – the economic and financial crisis which has gripped Europe since 2008, and which continues unabated to this day, has placed pressures on national governments – and in some cases has led to the emergence of political movements whose reflex is to place much of the blame for Europe's problems on the very openness which is so essential to the European ideal and to our continued prosperity in the globalised economy.

These pressures are understandable, but it is imperative to resist the temptation to yield to these pressures by taking steps which could undermine our hard-won achievements, including the unilateral reintroduction of controls at internal borders, except in the very exceptional situations where this is permissible and justified.

So, this is not a moment to compromise on our values, but rather to strengthen the institutional, political and legal underpinnings of the Schengen system. That is why the Commission has proposed a Schengen governance regime which would ensure that decisions on the temporary reintroduction of border controls – in the very exceptional situations where this would be justified – should, as a rule, be taken at the EU level.

But before turning to the details of what we have proposed, let us recall some of the recent developments that have placed the system under strain.

The Schengen area – a success coming under strain

In 1985, five Member States met in the small town of Schengen, in Luxembourg, to sign an agreement on the gradual abolition of checks at common borders, followed by the signing in 1990 of the Convention implementing that agreement.

Born as an intergovernmental initiative, the developments brought about by the Schengen Agreements have now been incorporated into the Treaties.

Today, the Schengen Area encompasses most of the EU's Member States and a number of 'associated' non-EU States, and I hope that the Council will soon decide that internal border controls with Bulgaria and Romania can finally be lifted.

The creation of the Schengen area allowing travellers to move within the area without being submitted to border checks at internal borders is undoubtedly one of the most tangible, popular and successful achievements of the EU. Indeed, some 420 million people are now residing in the area and enjoying the freedom of movement which it entails, making some 1.25 billion journeys within the EU every year – and that includes not just EU citizens but also numerous third-country nationals with the legal right to travel within the Schengen area.

The abolition of border controls at internal borders goes hand-in-hand with accompanying measures, including a common visa policy, police and judicial cooperation, and common rules on the return of irregular migrants. This has resulted in a very comprehensive legal framework being developed over the past decade which guarantees the integrity and sustainability of the Schengen area.

But maintaining this area without internal border controls requires an ongoing effort and commitment by all of its members. In particular, as a necessary corollary to the abolition of internal border controls, Member States are obliged to ensure that their section of the external borders of the Schengen area is effectively controlled, including by the deployment of appropriate resources.

Border crossing points must be operated in line with the Schengen rules, and proper surveillance of the border must be ensured. In recent times, problems have emerged in the control of the south-eastern border of the EU, particularly along the land border between Greece and Turkey. And, while significant support measures have been and continue to be taken to deal with that challenge (in the form of teams of border guards from other Member States, joint operations and know-how deployed by Frontex, as well as EU financial assistance), it is clear that there is a need to further strengthen the governance of the Schengen area to ensure that such situations can more rapidly be addressed and problems remedied at an early stage.

Of course, like all systems, the Schengen system also requires safeguards which enable it to deal with exceptional or unforeseen situations where it may be necessary to temporarily re-introduce some controls at internal borders for a limited period of time.

The current legal regime allows for this, and it has been used on a number of occasions, in most instances to allow Member States to deal with threats to security resulting from the organisation of major political or sporting events, or, for example, to ensure that the perpetrators of a major criminal or terrorist incident (such as the atrocity committed in Norway last summer) can be apprehended.

But, at the same time, some recent developments give rise to concerns about the willingness of some Member States to always abide by the spirit, if not the letter, of the Schengen rules.

In the aftermath of the influx of a number of mainly Tunisian migrants to Italy earlier this year, both the Italian and French authorities took steps which called into question the effectiveness of the Schengen system and its ability to effectively deal with the consequences of developments of this kind.

In the end, the Commission did not conclude that any infringements of the law had taken place, but it was clear that the trust which is essential to the sustainability of the system had been severely tested.

Shortly thereafter, steps were taken by the Danish government to intensify what were claimed to be 'customs controls' at their land borders with Germany and Sweden – again, while those plans have now thankfully been shelved, the development undoubtedly placed further strain on the mutual trust and political credibility of the Schengen system.

Some of the confusion and uncertainty about the precise obligations of Member States, in particular as regards the issuance of travel documents and residence permits, can be resolved by the drawing up of guidelines setting out a common understanding of the interpretation of the rules – that is a process we are currently engaged in, together with the Member States.

But I believe there is also a need to ensure that decisions taken to reintroduce controls at internal borders should be taken in such a way as to ensure that the interests of the Union and all its Member States are taken into account, while still allowing Member States to act unilaterally in urgent situations, to take immediate steps to safeguard security or other essential public policy interests.

The way forward: a coordinated European approach

In making the proposals adopted in September, the Commission is following up on an initiative already flagged in the Communication on migration which it adopted in May of last year, and on an explicit call by the European Council in June 2011 for such an EU-based safeguard mechanism to be proposed by the Commission.

In particular, it is clear that an effective, centralised system for Schengen governance is needed, to ensure that Member States adhere to common standards in the interests of all, and apply the common rules in a consistent manner.

A strengthened evaluation and monitoring mechanism

A 'Schengen evaluation' mechanism is already in place to monitor the implementation of the Schengen acquis. Currently, this mechanism is in essence an inter-governmental system of peer review, but which is not always effective in identifying and remedying deficiencies. The revision of the Schengen evaluation mechanism proposed by the Commission in November 2010 sought to address this shortcoming by establishing a mechanism based on a Union-led approach with the participation of experts from Member States and FRONTEX, under the leadership of the Commission.

The Commission's proposed revision of the Schengen evaluation mechanism would ensure more transparency and flexibility in the organisation of fact-finding missions (taking the form of announced or unannounced on-site visits) to Member States, as well as improving the follow-up of shortcomings identified during the experts' evaluations in the monitoring process.

An evaluation report will include concrete recommendations for remedial action, and the Member State concerned will be required to submit an Action Plan setting out how it intends to remedy the weaknesses identified, and the implementation of the Action Plan will be reviewed on a regular basis.

Possible re-visits will allow checks to be made to ensure that the changes have actually been implemented. Such an evaluation regime would, in my view, have a significant preventive effect, acting as a deterrent to Member States from neglecting their obligations to effectively control the external frontiers.

However, there might be situations where these steps, even combined with practical and/or financial assistance measures from the Commission, Frontex, or from other EU bodies, are not sufficient to ensure that persistent serious deficiencies in a Member State's control its external borders are adequately, or sufficiently swiftly, remedied.

For that reason, the Commission proposals aimed to ensure that the Schengen evaluation mechanism is further strengthened by allowing for the temporary reintroduction of border controls – as an exceptional measure of last resort in a truly critical situation – if it is clear that this would be necessary, proportionate and the most effective means of enabling the external border control deficiencies to be remedied.

This would be used in a carefully targeted manner, to ensure that the time and space is ring-fenced so that problems can be resolved, while minimising the impact on free movement to the greatest extent possible.

Such a measure should not, however, be seen as a sanction against that Member State, or an attempt to exclude it from the Schengen area, even temporarily. Rather, it should be seen as a temporary measure to enable it to focus all its efforts on tackling the causes of the deficiency.

I am pleased that there seems to be broad support among Member States for introducing a safeguard along these lines, and I hope that the Parliament will also recognise the necessity of having such a tool at our disposal.

EU-based safeguards for reintroduction of internal borders

Beyond strengthening the evaluation and monitoring system, the Commission has at the same time proposed that any step taken to reintroduce controls at internal borders, must first be the subject of an EU-based decision before being implemented, unless urgency requires that the action be taken immediately.

Decisions which will affect the Union as a whole require a coordinated European response, so as to ensure consistency of approach across Member States, and so as to ensure that wider interests are systematically taken into account.

It is inherent in any decision to reintroduce internal border controls – even for a limited period of time and within a limited geographic area – that the human and economic implications will be felt beyond the confines of the national territory of the State resorting to such measures.

The choice of a Commission decision taken pursuant to the so-called 'comitology' procedure reflects the need to ensure such a coordinated EU response, while at the same time ensuring the full participation of Member States in the decision-making process.

I should add that it is a misreading of our proposal to conclude that the Commission is challenging Member States' competence in security matters. Rather, what we intend to do is to create a mechanism where we can act to prevent a State from using the possibility to re-establish internal border controls in a disproportionate manner. It is a question of collectively ensuring, at the Union level, the proportionality of such a decision. We need a mechanism for that.

Of course, I am well aware that this aspect of the proposal has met with opposition from many Member States, and the Council Working Party - under the chairmanship of Denmark - is currently exploring possible adjustments. We are engaged in those discussions, and are prepared to show some flexibility, provided that our key objective is still met, namely ensuring the necessity and proportionality of any measures taken to reintroduce internal border controls.

I cannot emphasise strongly enough that these proposed changes must not be seen as in any way 'lowering the bar' for the reintroduction of border controls at internal frontiers, or allowing migration per se to justify resorting to such measures – on the contrary, Member States are already today permitted to reintroduce internal border controls, and the legal criteria permitting such a step to be taken remain unchanged in the commission's proposal, namely that such a measure can only be contemplated insofar as it is necessary to deal with the consequences of a situation which constitutes a serious threat to public policy or internal security. Indeed, we have expressly proposed that account must be taken of the likely impact of any measures on free movement in the Schengen area, before any such decision is taken.

Reinforcing political dialogue

We have not forgotten the importance of ensuring that there is an ongoing political dialogue on the state of the Schengen system: that is why we have explicitly proposed that there should be regular, bi-annual debates in both the Parliament and Council, to provide political cooperation and guidance on an ongoing basis. Regular debates of this kind would allow for a more effective political control of developments, and allow timely decisions to be taken on the future direction of policy. This approach was endorsed by the JHA Council in December, and we hope that the Parliament will likewise welcome the idea. The first such discussion could take place still under the Danish Presidency, most likely in June, on the basis of a report from the Commission.

Conclusion

And so, to conclude, let me welcome the constructive approach which many of you have already adopted concerning the need to further strengthen the governance of the Schengen area, and express the hope that you, the legislators, will focus on what I believe we all agree is a common objective: a strengthening of the Schengen system, by ensuring more secure external borders which in turn will safeguard the integrity of our cherished area of internal free movement. For both legislators, the EP and the Council, as for us in the Commission, there will be a need to show some flexibility over the coming weeks and months if we are achieve results – for my part, I can say that we are prepared to be pragmatic, provided that the end result represents a significant net improvement on the status quo ante, and does not in any way undermine the need to protect free movement.

The Schengen system is a tremendously valuable asset for the Union, and it would have been tempting for the Commission not to tinker with what we already have.

But I believe that, by seizing the initiative and proposing these improvements, we will ensure that it is better equipped to withstand the pressures which will inevitably be placed upon it in the years ahead.

So, I am looking forward to working intensively together with both the Parliament and Council on these Schengen governance proposals over the coming weeks and months, and to even more fruitful collaboration between our respective institutions on Schengen matters in the years ahead.


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