July 05
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23rd June 2020
Covid-19 Employment & Immigration Institutional law Internal Market

Op-Ed: “The unexpected resurgence of the Schengen area” by Daniel Thym

Few people would have thought three months ago that most Member States would lift border controls, abandon travel restrictions and discontinue quarantine requirements by the end of June 2020. The Schengen area seemed to fall victim to the hectic measures decided upon in national capitals during the first weeks of the COVID-19 pandemic. In an unprecedented move, many Member States did not only introduce temporary border controls; they also instituted far-reaching travel restrictions, which effectively brought the free movement of persons within the European Union to a near standstill. Borders were not only being controlled, they were closed. Nothing comparable had happened during 60 years of EU integration.

Today, the situation looks different. Many Member States allow their citizens to leave the country and welcome visitors without requiring compliance with a narrow list of legitimate reasons. To be sure, the external travel ban towards third countries remains in place, even though the Commission has proposed to gradually ease existing restrictions. Airlines have started offering their services to the Mediterranean and other holiday destinations. Tourists are expected to flock back to the beaches or mountain resorts across Europe just in time for the prime summer season.

This Op-Ed will highlight three lessons that experts of EU law and policy should draw from the near-death experience of the Schengen area and the unexpectedly swift resurgence of border-free travel.

1. Lack of effective supranational governance structures

The surprisingly quick return to the status quo ante should not deflect our attention from the severe weaknesses in the legal and institutional governance of the Schengen area, which were laid bare in the past month. Procedural and substantive requirements for the ‘temporary’ reintroduction of border controls in the Schengen Borders Code Regulation (EU) 2016/399 do not seem to have played a major role in the political decisions about introducing or lifting internal controls in response to the COVID-19 pandemic.

Closer inspection of the notifications sent by national governments shows that they hardly bothered to comply with their reporting obligations, including ‘all relevant data detailing the events that constitute a serious threat’ to allow the Commission to control state action and suggest less coercive means. Similarly, the substantive requirement that only ‘a serious threat to public policy or internal security’ may justify internal border controls, is treated not as a legal constraint, but as a question of political preference.

These massive procedural and substantive deficits matter even if we conclude that there were good reasons to conclude that border controls were legal at the height of the pandemic. The European Commission, in particular, behaved more like a political mediator than a law-based ‘guardian of the treaties’ – mirroring a similar approach to the proliferation of border controls over ever longer periods of time in response to the terrorist attacks in the early 2010’s and the migration and refugee policy crisis of 2015/16.

I doubt whether any proposals to reform the statutory prescriptions in the Schengen Borders Code would substantially alter the situation. Experience over the past years shows that the supranational integration method has lost its former capacity to effectively control and steer state action. We are witnessing what one might call a ‘diplomatisation’ of EU law, when political will takes precedence over legal arguments. Similar developments can be observed in the field of economic and monetary union, asylum policy or regarding the question of a debt-financed financial support scheme in reaction to the COVID-19 pandemic.

2.      The dynamics of intergovernmental cooperation

The surprisingly rapid renaissance of the Schengen area was driven by clusters of Member States. Most notable were the concerted efforts between Germany, Austria, Switzerland and France (together with the Benelux countries) as well as an initial free movement ‘bubble’ between the Baltic states. These preliminary ‘Mini-Schengen’ developed a momentum of their own and included more and more countries within a few weeks.

While debates among ministers in the Council and the mediating function of the Commission played a role in the swift return to the standard situation of border-free travel, we should not overemphasise the role of supranational institutions. In particular, the overly cautious Commission Communications failed to develop a political or legal momentum towards the resurgence of the Schengen. The idea of a pan-European set of criteria developed by the European Centre for Disease Prevention and Control (ECDC) together with national public health authorities to guide national decisions, for instance, did not get off the ground.

While the focus on intergovernmental cooperation may be counterintuitive for legal academics and practitioners, it should be noted that it is not a novelty. The Schengen acquis was originally developed outside the Community framework by a group of Member States – and experiences with the COVID-19 pandemic illustrate how important the commitment on the part of the Member State continues to be. National capitals are not necessarily the selfish ‘bad guys’ as opposed to the pro-integrationist supranational institutions. They can play an indispensable and constructive role.

3.      The symbolic significance of open borders

It was no coincidence that borders closures played a prominent role in the fight against the pandemic, even though their practical effects were limited, once the virus had spread among the population. Borders can fulfil important symbolic functions transcending the practical effects of more police checks or travel restrictions. They convey a message of political determination and convey a sense of security in times of crises when the population feels insecure and threatened. It is this symbolic function that has motivated governments across the world to emphasise the protective dimension of borders in recent years in a noticeable contrast to the openness that was prevalent after the end of the Cold War.

If that is correct, the initial closure of the internal Schengen borders had implications which considerably transcended the immediate effects on inter-state travel. They signalled a general distance from the European project – in the same way as the lifting of border controls coincides with a policy environment in which the Member States and the EU institutions have finally agreed on a joint way forward how to respond to the broader economic and social repercussions of the pandemic.

In that respect, the unexpected renaissance of the Schengen area is much more than a technical question of home affairs policy. Social psychology informs us that perceptions of threat tend to reinforce a distinction between ‘us’ and ‘them’; we aim for protection within our in-group when feeling vulnerable. It is important, therefore, ‘who’ protects us both against the immediate danger to our health and the economic effects of the pandemic. If the European Union wants to be more than a ‘fair weather construction’, it must ensure that the institutions, policies and rules, which make up the European project, are being upheld and reinforced during the crisis. It is a good sign, therefore, that the borders are open again.

 

Daniel Thym is Professor of European Law at the University of Konstanz in Germany. He also holds the Jean-Monnet-Chair of European, International and Public Law, serves as managing director of the Research Centre Immigration & Asylum Law and is the spokesperson of the interdisciplinary ‘Research Centre Social Cohesion’ at the University of Konstanz.

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