by Beatrice FRAGASSO (*)
On Friday 7 April, Regulation (EU) 2017/458 reinforcing of checks against relevant databases at external borders for all travellers crossing the external Schengen borders, including European nationals, has entered into force. It is the latest but not the last amendment to the Schengen Border Code (Regulation (EC) 562/2006 ): other amendments are currently negotiated in the framework of the so called Smart Border Package (and others will follow in the coming months) such as
-the two proposals on the ENTRY-EXIT System (issues currently debated are i) the scope of the EES; ii) the optimal choice and use of biometric identifiers; iii) the calculation of the 90/180 day- timeframe regarding Member States which do not yet apply the Schengen acquis in full; iv) the conditions under which stamps will still be used on travel documents; v) the transfer of data to third countries and other third parties; vi)the interaction between the EES and the bilateral agreements under which a Member State extends the stay of the third country national concerned for a period longer than 90 days).
-the proposal to create a European Travel Information and Authorisation System (ETIAS) in order for the visa-exempt third country nationals to be authorised to travel to the Schengen Area for short-stay visits following a pre-screening prior to their trip. Such pre-screening should allow the competent authorities to assess whether such travel poses a security or migration risk. However, it should be noted that this authorisation would not grant entry to the Schengen Area, which remains to be decided by the border guards. ETIAS would cover all external border types (air, land and sea).
– the establishment of additional functionalities for the SIS such as the creation of SIS alerts on irregular migrants who are the subject of return decisions; the use of facial images for biometric identification, in addition to fingerprints; the automatic transmission of information on a hit following a check; the storing of hit information on discreet and specific check alerts in the SIS Central System; the creation of a new alert category on ‘Wanted Unknown Persons’ for which forensic data may exist in national databases (e.g. a latent print left behind at a crime scene) and the extension of the scope of SIS for immigration purposes. (SEE 7644/16 – Communication from the Commission to the European Parliament and to the Council Stronger and Smarter Information Systems for Borders and Security)
PROCEDURAL ASPECTS :
This latest reform reinforcing of checks against relevant databases at external borders (Legislative PROCEDURE COD(2015)0307) was proposed by the European Commission (see COM(2015)0670) at the end of 2015 following the Paris terrorists attacks. The Council adopted a “general approach” already on February 25 , 2016 as a basis for a trilogue with the European Parliament and the Commission.
On his side the EP LIBE Committee adopted its Report on 21 June 2016 (A8-0218/2016) . Since then, several technical meetings and at least three trilogues meetings , (on 13 July 2016, 11 October 2016 and 5 December 2016 ) have taken place. As usual there is no transparency on this kind of legislative negotiations from June 2016 to February 2017 and the only accessible reference is a multicolumn document leaked by Statewatch (dated 8 July 2016). According to that document and other informal sources the main issues debated between the Parliament and the Council were : i) regarding air borders, the extent of the transitional period during which it will be possible to derogate from the systematic checks; ii) the question whether reference should be made in the text to consultation of national data bases to verify that there is no threat to the internal security, etc.; iii) the question whether the scope of cases to be exempted from systematic checks under certain conditions shall be limited to the disproportionate delays (and if allowed by the relevant risk analysis) or would be broaden; iv) The sunset clause which the Parliament wants to be included in the text in order to have the application of this Regulation terminated after a given time.
The Member States pressure on the European Parliament has been particularly strong after the “informal” meeting of the Heads of State or Government at Bratislava on 16 September 2016 and the result of it (and of the trilogues) has been a compromise wich has been endorsed by LIBE has submitted and submitted to the European Parliament.
The latter has adopted its position on 16 February 2017 and this text is particularly interesting because it shows clearly all the amendments agreed on by the Co-legislator (European Parliament and Council) on the original Commission proposal.. Needless to say, the Council unanimously endorsed the text on Tuesday 7 March, with the only exception of UK, IRL (which can decide to join later) and of DK.
However Slovenia while approving the text confirmed in a separate statement its strong concerns because “.. checks carried out systematically on all persons crossing the external borders, including those enjoying the right of free movement under Union Law, without targeted checks as a basic principle for efficient border checks and without taking into consideration justified exemptions, is a disproportionate measure in relation to the pursued objective of the change….Additional doubts to the efficiency of the new provisions of Article 7(2) of the Code are related to the possible transitional period for border checks at air borders that are especially vulnerable part of the external borders. The implementation on the scale as specified in Article 7 (2) of the Code will have an adverse effect on passenger flows at external borders as it will also have financial implications for Member States. Slovenia cannot be held ultimately accountable for such outcomes.”
These concerns have been echoed also in a statement of Croatia. The latter is formally a member of the Schengen cooperation but has still to obtain (like Romania and Bulgaria) the Council decision which states that all the technical tests have been past and internal controls can be suppressed. In practice Croatia is considered still outside the Schengen area and the internal borders controls with Slovenia and Hungary will continue until the Council gives its green light. For this reason “..the Republic of Croatia regrets that these measures are to be implemented not only at the European Union’s external borders but also at internal borders between Member States fully applying the Schengen acquis and Member States not yet fully applying the Schengen acquis. The title of the Regulation itself implies its application at the European Union’s external borders, not at Schengen borders. For that precise reason, all Member States should have been treated equally. Such a regime will constitute a significant additional burden on the national resources of the Republic of Croatia in terms of the required level of technical and personnel capacities, which could have negative implications for the Croatian economy and the efficient flow of passenger and goods traffic. The Republic of Croatia considers that not even at a symbolic level does such a regime at internal borders contribute to unity in achieving the objectives of this Regulation….”
SOME HIGHLIGHTS OF THE NEW REGULATION AND ECHOES OF THE EP DEBATE
To have an idea of the impact of the new regulation suffice to remember that in 2014 there has been 60.906.914 Schengen external borders crossings of those 48.792.665 EU citizens. In the first half of 2016: 26.842.855 passengers, of those 21.385.972 EU citizens.
The new Regulation concerns in particular the Article 7 of Regulation 562/2006, that rules the border checks on persons. Reinforcing the checks against databases at external borders is a response, in particular, to the increased threat of terrorism, and it aims to guarantee the proper functioning of the Schengen area. The new regulation introduces the obligation of systematic checking of all citizens (also EU citizens) at air, sea and land borders on the basis of police databases, such as the Schengen Information System (SIS) or the Interpol database of stolen or missing documents, in view of tracking journeys possibly made for terrorist purposes.
While third-country nationals are already subject to systematic document and security checks against relevant databases upon entry, according to the current legislation EU citizens were subjects to a minimum control based on a rapid and straightforward verification of the validity of the travel document for crossing the border.
The phenomenon of foreign terrorist fighters, many of whom are Union citizens, has generated the need to reinforce checks at external borders with regard to persons enjoying the right of free movement under Union law (i.e. EU citizens and members of their families who are not EU citizens). These new provisions try to face the risks posed by returning terrorist foreign fighters, who have returned to the EU from non-EU countries, exercising their right of free movement.
The regulation introduces a new ordinary procedure for border checking.
The travel documents of persons enjoying the right of free movement under Union law should be checked systematically, on entry into and on exit from the territory of Member States, against SIS and Interpol databases for stolen, misappropriated, lost and invalidated travel documents in order to ensure that such persons do not hide their real identity.
Border guards should conduct systematically checks using data provided by the SIS, Interpol database on stolen and lost travel documents, national databases. To that end, the Member States should ensure that their border guards have access at external border crossing points to the national and Union databases.
The EP rapporteur Monica Macovei (ECR – Romania) at the plenary (on 15 February 2017) gave an example of how the control system is supposed to work: the passport will be scanned and, if one of the databases shows information about that person, further analysis will be done on that traveller. She underlined that it will be a fast verification, because border guards will utilise only one interface, that gather all the databases. According to the regulation, such systematic checks of course should be carried out in full compliance with relevant Union law, including the Charter of Fundamental Rights of the European Union and should fully respect human dignity.
As an exception to the systematic controls, Member States will be allowed to carry out “targeted” (non-systematic) control to particular cases in which systematic checks at the border would have a disproportionate impact on the flow of the traffic. In these cases, a Member State may decide to carry out those checks on a targeted basis at specified border crossing points. This exemption is allowed just if, on the basis of a risk assessment, it is determined that such a relaxation would not lead to a security risk. Such a risk assessment should be transmitted to the European Border and Coast Guard Agency. In cases where there are doubts about the travel document or where there are indications that such a person could represent a threat to the public policy, internal security, public health or international relations of the Member States, the border guard should consult all named databases.
The regulation provides for adaptations to take account of the problems, mostly of a technical nature, raised by certain member states: at the air borders, for instance, the Member States will be allowed to carry out “targeted” controls over a six-month transition period, once the new regulation enters into force. This timeframe could then be extended for a maximum 18-month period in exceptional circumstances, for instance if airports need to adapt because they do not have the infrastructure to enable them to carry out the systematic controls.
The rapporteur Monica Macovei (ECR – Romania) at the plenary (on 15 February 2017) highlighted the main changes to the Schengen Borders Code. Since now EU citizens have not been checked on entering and leaving the Schengen area and the citizens from third countries are checked only at the entrance, and not in exit. This will change with the regulation: everyone, EU citizens, and non-EU citizens, will be checked both at entry and exit of the EU external border (and not only of the Schengen Area). The rapporteur underlined also the important responsibility of Member States in the regulation’s implementation: Member States should enter data into the EU databases and ensure that the data are accurate and up-to-date and that they are obtained and entered lawfully.
However, the first days of implementation showed some difficulties and inadequacies of the Regulation. As the deputy Tanja Fajon (S&D, Slovenia) had already predicted in her intervention at the plenary (15 february 2017), the first days of implementation produced traffic chaos on some borders, especially on the Slovenia-Croatia one (Slovenia is a member of the Schengen Area, Croatia not yet). Many holidaymakers from Austria, Germany and Switzerland spent hours in queues and during Easter break and summer holidays it will probably get worst.
Tanja Fajon stated that border guards would not have been able to handle the new provisions and that border states would have dealt with queues at the borders. She pointed out that the new rules are characterized by an excessive inflexibility and that they are too unbalanced: they increase security but at the expense of measures user-friendly for all passengers.
And that’s what happened the last weekend on the Slovenia-Croatia borders. Late on Friday Slovenian police suspended the systematic checks of all passengers and continued checking only those from third countries, as the Regulation allows in particular cases in which systematic checks have a disproportionate impact on the flow of the traffic. Slovenian Prime Minister Miro Cerar said that Slovenian police would continue with a “softer” implementation of the new regime until the normalisation of conditions at the border. He stated that the new Regulation is “unacceptable” and the Croatian Prime Minister Andrej Plenkovic agreed with him: Slovenia and Croatia will present proposals to the European Commission to change the Regulation as soon as possible.
The debate at the plenary that took place on 15 February shows also other controversial elements in the Regulation, criticized by MEPs.
Sophia in t’ Veld, on behalf of the Alde Group, criticized the lack of impact assessment, as also Ulrike Lunacek (on behalf of Verts/ALE Group) did: they criticized the fact that the Commission didn’t give any proof that the regulation will make EU more secure. In second place, both the groups find it strange that the Commission use as justification for the proposal the Paris attacks, because one of the main shortcomings emerged in that case was that Member States were not sharing information and terrorists were able to cross internal borders without problems.
Then, with regard with legislative text, Alde group would have preferred a risk-based system, proportional and necessary, rather than the default setting of systematic checks. They also would have liked risk assessment at the European level, based on common European criteria.
Furthermore, they pushed for an equal treatment of land, air and sea borders, with no results. It would therefore have been logical to introduce this equivalence, because if everybody is submitted to systematic checks at airports, but there can be exceptions for land and sea borders, obviously a person who wants to escape control will take the car.
However, Alde group is satisfied for the introduction of the limitation of compulsory checks to well-defined databases, rather than the general reference that was included initially (all relevant databases).
Marie-Christine Vergiat, on behalf of the GUE/NGL group, affirmed that her group firmly oppose the regulation, because it represents another stage in the building of Europe as a security state. GUE/NGL affirm that controls will be random because databases will be consulted just in case of doubt about the validity of travel documents and certain categories of person may also be exempted. They consider that this regulation will affect fundamental rights, without the right to the safety being strengthened.
Laurențiu Rebega, on behalf of ENF group, pointed out that under the justification of security they are building huge databases which are beyond any democratic control. Furthermore, they consider unfair and humiliating that States that are not in Schengen will have the same obligations of Schengen States, but without enjoying the same rights.
All the interventions, anyway, highlighted that the Regulation will be useless if Member States keep ignore the system in place and if Member States do not feed information into it and do not check it. Member States should accept that there is an obligation to use the existing system. The parliamentary debate shows also the shared need to improve dialogue between the databases, and interconnectivity between them and the infrastructure responsible for management of external borders, in full respect of the rules on data protection and fundamental rights.
(*) FREE Group Trainee
- Statement by SloveniaThe Republic of Slovenia reaffirms its commitment to implement the provisions of the Schengen Border Code (hereinafter the Code) introducing strengthened checks on persons crossing the external borders of Member States, also on those enjoying the right of free movement under Union law. While the purpose of exercising border checks in this manner is expected to deliver an improvement to control of external borders, to increase Member States’ internal security and to prevent terrorism, this will also have other consequences.By this declaration, Slovenia wishes to draw attention to the potential consequences that will follow from consistent implementation of Article 7(2) of the Code.
The Republic of Slovenia, as a country whose territory is one of the most heavily burdened entry and exit areas enabling access to Member States1, is fully aware of its responsibility of carrying out border control in the interest of all Member States. In Slovenia’s view, checks carried out systematically on all persons crossing the external borders, including those enjoying the right of free movement under Union Law, without targeted checks as a basic principle for efficient border checks and without taking into consideration justified exemptions, is a disproportionate measure in relation to the pursued objective of the change. Additional doubts to the efficiency of the new provisions of Article 7(2) of the Code are related to the possible transitional period for border checks at air borders that are especially vulnerable part of the external borders. The implementation on the scale as specified in Article 7 (2) of the Code will have an adverse effect on passenger flows at external borders as it will also have financial implications for Member States. Slovenia cannot be held ultimately accountable for such outcomes.
Slovenia also welcomes the intention of the European Commission to assess regularly the implementation of the Code, including the consequences of amended provisions, and propose relevant amendments if necessary.
Statement by Croatia
The Republic of Croatia supports the objective of this Regulation. It is of the opinion that implementing the mechanisms established thereunder will help to strengthen and maintain security throughout the territory of the European Union and the Schengen area, and also contribute to the overall control of our border, that is the external border of the European Union. At the same time, the Republic of Croatia regrets that these measures are to be implemented not only at the European Union’s external borders but also at internal borders between Member States fully applying the Schengen acquis and Member States not yet fully applying the Schengen acquis. The title of the Regulation itself implies its application at the European Union’s external borders, not at Schengen borders. For that precise reason, all Member States should have been treated equally. Such a regime will constitute a significant additional burden on the national resources of the Republic of Croatia in terms of the required level of technical and personnel capacities, which could have negative implications for the Croatian economy and the efficient flow of passenger and goods traffic. The Republic of Croatia considers that not even at a symbolic level does such a regime at internal borders contribute to unity in achieving the objectives of this Regulation.
Nevertheless, the Republic of Croatia remains fully committed to consistent compliance with and implementation of the Regulation, and welcomes the European Commission’s intention to regularly monitor its implementation and propose relevant amendments whenever it deems this possible.
With a view to ensuring efficient implementation, the Republic of Croatia also recalls the specific situations of certain Member States and invites the European Commission to take steps, in consultation with stakeholders and further to the European Council conclusions of December 2016, to find appropriate solutions to address those specific situations.
The Republic of Croatia therefore has an interest and is actively engaged in finding ways to mitigate the undesired consequences of the measures introduced on the flow of passenger and goods traffic both at its external border and at its internal land border with the Republic of Slovenia and Hungary. Bearing in mind the Regulation’s objective and benefits for the European Union as a whole and the fact that it enjoys the broad support of Member States, the Republic of Croatia, as a constructive Member State, supports its adoption.