Abstract
AbstractBorder controls within the Schengen area are meant to be a thing of the past. Yet, since the refugee crisis of 2015, “temporary” border controls have become quasi permanent in several European Union Member States. Although these controls are against the letter and spirit of the Schengen Borders Code, the Commission has not taken any measures to enforce these rules. One of the reasons for the dismal state of the Schengen area is the one-sided focus on the abolition of internal border controls as primarily functional for the establishment of the internal market. This comes at the expense of Union citizens’ rights and disregards the fundamental role that the abolition of border controls has on how citizens see the Union in political terms and conceive themselves as Union citizens. Against this background, we argue that from its beginning the objective of the project to abolish border controls was to foster a supranational political identity of Union citizens by transforming citizens’ spatial experience. Union citizenship in the current EU Treaty framework constitutes the legal expression of that historical connection between the abolition of border controls and free movement. Emphasizing the citizenship dimension of an area without internal frontiers provides a different perspective on current controls at the Schengen internal borders.
Highlights
In the nine years preceding September 2015, Member States reintroduced border controls a total of 40 times, while in the following five years —September 2015 - October 2020— this number rose to 237.3 The continuous prolongation of border controls goes against the letter and spirit of the Schengen Borders Code, the principal legislative instrument that governs border management in the EU, and which permits only a temporary reinstatement of controls at internal borders
While neofunctionalism is able to explain that the current Schengen system suffers from dysfunctionalities that follow after an external shock —prolonged reintroduction of border controls as response to the “refugee crisis”—5 it cannot explain why, despite the significant economic costs of maintaining border controls,6 supranational actors, especially the Commission, have done so little to end the reintroduction of border controls
In his Opinion in Touring Tours, Advocate General Yves Bot suggested that the right of free movement includes a right not to be subject to border controls: “For citizens of the European Union, the right to move freely and unhindered within the territory of the Member States constitutes a fundamental right in accordance with Article 3(2) TEU and Article 20(2) and Article 21 TFEU.”135 As the facts of the case concerned German legislation that was considered to have equivalent effects to border controls, the “right to move freely and unhindered” arguably entails a right to move across internal borders without being subject to border controls
Summary
Several European leaders have questioned the tenability of the Schengen rules or have openly called for their overhaul, Member States generally notified the Commission and the Council and sought to justify the reinstatement of controls under the existing derogation grounds In their notifications, Member States’ invoke related but slightly different public policy and internal security concerns and thereby alternate between different exception grounds. On May 15, 2020, the Commission issued a communication in which it argued for “a return to unrestricted free movement of persons.” By contrast, with the exception of its opinion of October 2015 in which it held that the border controls by Austria and Germany were in compliance with the Schengen Borders Code, the Commission refrained from any evaluation of border controls that Member States prolong for almost six years for reasons of secondary movement of refugees or terrorist threats. This focus on the economic dimension of the abolition of internal border controls, as a corollary of the internal market project, often obscures the citizenship dimension of Schengen, which we turn to in the following part
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