Can Schengen Move Suspended Because Of Greece? Should It Be?

Steve Peers

H5N1 leaked Council document (see carve upward blog post) suggests inwards trial that the Schengen organisation should live on suspended for upward 2 years, due to ‘systemic deficiencies’ inwards the command of external borders yesteryear Greece. That would allow whatever Schengen United States of America which wishing to create so to maintain or innovate edge checks on their ‘internal’ borders amongst each other. Probably non all Schengen United States of America would select this opportunity, but many would (especially since a number of them already create so). This follows a recent press report inwards the Financial Times (paywalled), which states that unopen to Member United States of America are considering threatening to throw Hellenic Republic out of the Schengen system, due to its management of refugees as well as migrants at the external borders.

It’s possible that the full general threat to suspend Schengen is intended as a threat to suspend Hellenic Republic only, but is only badly drafted. Or maybe the thought is to threaten to suspend the whole of Schengen, as well as pivot the blame on Greece. Either way, inwards my view, this threat is seriously mistaken, for both legal as well as political reasons.

The Legal Framework

In principle, the Schengen organisation can’t live on scrapped completely without amending the European Union Treaties, since the Treaties refer to it several times. Instead, in that location are 2 types of possible suspensions: short-term (up to iii months) as well as long-term (up to 2 years). The leaked Council document refers to usage of the long-term suspension.

The short-term waiver rules receive got e'er formed component subdivision of the Schengen system. They allow private Member United States of America to reimpose checks on internal borders  for a brusk time, for reasons of populace policy as well as populace security. Over the years, those provisions receive got ofttimes been invoked yesteryear Member States, unremarkably for a few days during an international summit or football game tournament. This autumn, they receive got been invoked to a greater extent than ofttimes as well as for longer periods, as a answer to the refugee crisis affecting the continent. Since this reintroduction is exclusively allowed for a maximum catamenia of vi months, in that location is an upcoming legal work if Member United States of America amongst to prolong these controls yesteryear adjacent spring.

But a newer, dissimilar laid of rules apply to suspending a Member State from the Schengen system. As a answer to the ‘Arab Spring’ of 2011, as well as a spat betwixt Italia as well as French Republic over responsibleness for unopen to Tunisians, the Schengen rules were amended inwards 2013 inwards social club to supply for the collective reimposition of internal edge controls for upward to 2 years. Those amendments holler for to live on read inwards conjunction amongst the residual of the rules which they amended. So I advise yous read them inwards the codified version (showing the amendments), which is laid out inwards an Annex to the report which I wrote for the SIEPS thinktank on the revised rules.

These amendments were by as well as large understood as providing inwards trial for the possible intermission of private Member United States of America from the Schengen system. However, that is non expressly laid out inwards the rules, as well as the leaked Council document clearly intends something broader, since it refers explicitly to continuation of existing edge checks, ie betwixt FRG as well as Austria, non (only) betwixt other Member United States of America as well as Greece. But the role of private Member United States of America is nevertheless relevant, because this collective intermission of Schengen tin exclusively live on triggered if in that location are ‘serious deficiencies’ inwards how ane Member State applies the Schengen external borders rules.

The physical care for would laid about amongst a Commission recommendation next a Schengen evaluation, according to the separate rules (also amended inwards 2013) on the physical care for of assessing whether Schengen states comply amongst their obligations. If the Commission finds inwards its study that in that location are ‘serious deficiencies’ inwards a Member State complying amongst its external edge command obligations, so it tin recommend that this province select ‘specific measures’, including accepting assistance from the EU’s edge agency, Frontex, as well as submitting plans for Frontex to assess.

If in that location is non plenty activity on settling these problems inside iii months, the physical care for tin escalate. In ‘exceptional cases’ where in that location is a ‘serious threat to populace policy or populace security’ inwards the Schengen expanse or parts of it, the Council tin recommend ‘as a concluding resort’ to Member United States of America that they reimpose edge controls against that Member State for periods of vi months, renewable upward to the two-year maximum. It’s arguable that this physical care for tin live on fast-tracked as well as live on applied fifty-fifty without giving the Member State iii months to create its problems.  Since Member United States of America would receive got to vote inwards favour of it inwards the Council (by a qualified majority), it tin live on assumed that most Member United States of America would so follow this recommendation. The Council has to human activity on a proposal from the Commission, but Member United States of America tin asking the Commission to brand such a proposal.  

In adopting this recommendation, the Council has to assess whether it volition ‘adequately remedy’ the threat to populace policy, as good as the ‘proportionality’ of the stair out inwards relation to the threat. This must live on based on detailed information, as well as consider the European Union assistance which was provided or which could receive got been requested, the probable impact of the deficiencies inwards edge command upon the threat to populace policy or populace security, as well as the impact on the complimentary displace of persons.

The legality of suspending Schengen and/or sanctioning Greece

It’s non clear just where nosotros stand upward inwards the physical care for as regards Greece. The Commission has lately adopted a Schengen evaluation report, but it’s non public. It’s non fifty-fifty clear if that study concerns Hellenic Republic (all Schengen states are evaluated). So it would select a spell (three months after a formal finding of ‘serious deficiencies’, which hasn’t happened yet as far as I know) earlier Hellenic Republic could live on sanctioned, unless the physical care for is fast-tracked.

Indeed, the Council document seems to live on aiming to fast-track the process. It wants the Council already to asking a Commission recommendation to suspend the abolition of edge controls for upward to 2 years. Since (as far as I am aware) there’s non fifty-fifty a finding of Greek ‘serious deficiencies’ yet, there’s manifestly non yet a iii calendar month catamenia during which those problems continued. And the Council document doesn’t fifty-fifty endeavour to assess whether the noun criteria apply; the intention only seems to live on to honor unopen to way to justify a longer catamenia to go along the internal edge checks which Member United States of America receive got reintroduced recently.

If the electrical flow threats larn to the phase of a Council Recommendation that edge controls live on reimposed, it’s non clear if Hellenic Republic could sue the Council inwards the European Union Court of Justice (since technically Recommendations are non binding), or would receive got to sue Member States for next the Recommendation instead. Individual travellers could also sue Member United States of America inwards national courts for imposing edge controls, indirectly challenging the legality of the Recommendation; national courts could so shipping the number to the Court of Justice.

Procedural issues apart, is in that location a substantive example for suspending Schengen rules as well as reimposing edge controls, because of ‘serious deficiencies’ due to Greek command of the external border? In my view, in that location are serious doubts that in that location is such a case, for 2 principal reasons.

First of all, according to the Financial Times article, other Member United States of America are annoyed because Hellenic Republic did non receive got the back upward of Frontex, register plenty asylum-seekers, or asking humanitarian aid to assist them. While the failure to asking back upward from Frontex is referred to inwards the European Union edge controls legislation, the other issues are not. And for really expert reason: because the failure to command the numbers of refugees at the external borders is NOT a breach of the Schengen rules.

This assertion may appear surprising, because the critics of the EU’s answer to the refugee crisis – on either side of the declaration – ofttimes assume that European Union police push clit requires refugees as well as asylum-seekers to live on refused entry at the borders. From ane side, the European Union is criticised for letting refugees as well as asylum-seekers in, as well as thus ‘not protecting its borders’. From the other side, the European Union is criticised for establishing a ‘Fortress Europe’.

Both sides are clearly incorrect – at least, on this specific legal issue. This follows from the Schengen Borders Code itself, which expressly exempts refugees from the rules on penalising non-EU citizens for unauthorised entry across the borders, as well as includes an exemption from the green atmospheric condition on edge crossing if the non-EU citizen is claiming asylum. It as follows from the EU’s asylum procedures Directive, which requires Member United States of America to physical care for non exclusively asylum applications made on the territory, but also those made at the border. (Of course, Member United States of America don't e'er fully comply amongst their European Union legal obligations).

So it’s actually the edge crossing dominion itself which is controversial, non Greece’s failure to apply it. There’s a political work amongst the dominion inwards practice, either because (from ane side’s perspective) it is no longer keeping out plenty people, or (from the other side’s perspective), it is also hard for genuine refugees to reach European Union territory without the adventure of drowning or paying coin to smugglers.

But for the purposes of finding that in that location are ‘serious deficiencies’ inwards Greek command of the external border, the indicate is that Hellenic Republic is not failing inwards whatever obligation to halt asylum-seekers crossing the external borders – quite only because there’s no such obligation. Just the opposite. Of course, due to the sheer scale of the numbers involved, it’s hard for Hellenic Republic to operate an effective asylum system, but that failure is champaign of study to a wholly carve upward process. Indeed, the European Court of Human Rights as well as the CJEU receive got already said that Member United States of America cannot shipping asylum-seekers dorsum to Greece, because the asylum organisation has effectively collapsed there. The Dublin III Regulation sets out rules which apply inwards the trial that the Dublin organisation has to live on suspended for those reasons, as well as the European Union has lately adopted Decisions (discussed here) to salve the burden on Hellenic Republic a lilliputian yesteryear relocating unopen to asylum-seekers from that country.  

Of course, unopen to of those who cross the Greek edge create non apply for asylum immediately, or afterwards neglect inwards their asylum applications. According to UNHCR statistics, close one-half of those lately arriving inwards the Greek isle of Lesvos (the principal destination) are coming from Syrian Arab Republic as well as Republic of Iraq (countries amongst high refugee recognition rates) as well as one-half are coming from other countries, amongst lower recognition rates. In that context, it is legitimate to advise that Hellenic Republic ought to receive got assistance from Frontex as well as other European Union agencies, as well as that Frontex inwards particular has a role coordinating the fingerprinting as well as registration of people when they offset arrive. (Fingerprinting of irregular migrants as well as asylum-seekers isn’t a panicked authoritarian answer to the refugee crisis, as is sometimes suggested, but a long-standing European Union police push clit obligation, going dorsum to 2003).

The bit work is the link betwixt the Greek ‘deficiencies’ as well as the reimposition of edge controls, either against Hellenic Republic or betwixt other Schengen states. There’s for certain no link betwixt the deficiencies as well as the borders betwixt Hellenic Republic as well as other Schengen States, since none of those are land borders, as well as (would-be) asylum-seekers as well as refugees move yesteryear solid ground betwixt Hellenic Republic as well as other Member States. So checking people flying betwixt Hellenic Republic as well as other Schengen United States of America would live on hugely disproportionate to the relevant deficiencies.  

What close edge controls betwixt other Schengen States? These are the controls that the Council document expressly wants to continue. Here in that location is a link betwixt the people originally entering via Hellenic Republic as well as afterwards trying to cross the Austria/Germany border, for instance. But again, the existent deficiencies are amongst the EU’s asylum system, non Greek edge controls, since European Union rules supply for admission of asylum-seekers. Asylum-seekers displace on to other Member United States of America because the Dublin rules were non drawn upward amongst today’s increased numbers of asylum-seekers inwards mind, as well as Hellenic Republic can’t contend the numbers that it would live on responsible for nether the rules. That’s for certain a work – but that work is non caused by Greek deficiencies inwards external edge controls. The European Union has to usage the legal instruments available nether its asylum policy to assay to create it.

Political context

Although it’s non evident from the facial expression upward of the document, the political context of the Council newspaper may live on an endeavour to convince Hellenic Republic to concur to farther measures relating to edge control. That’s evident from the Financial Times article, which conveys several Member States’ allegations against Hellenic Republic (summarised above). In turn, the Greek authorities has defended itself as well as made counter-allegations against the EU, which are summarised inwards a Guardian article.

In unopen to ways, this resembles the endeavour yesteryear unopen to Member United States of America this summertime to coerce Hellenic Republic to go out the euro ‘temporarily’. As I argued at the time, this physical care for did non receive got a shred of legality, unless nosotros usage the creative declaration that Hellenic Republic had never legally joined the euro.

However, in that location are differences as regards Schengen. There is on newspaper a physical care for to suspend Schengen rules temporarily; the exclusively enquiry is the right interpretation of those rules. Undoubtedly unopen to volition non portion my interpretation above, as well as would debate that defects inwards the asylum organisation are implicitly component subdivision of the assessment of whether in that location are 'serious deficiencies' inwards external edge control. In the absence of example police push clit to date, it’s an opened upward enquiry which of us would live on correct. It’s also an opened upward enquiry whether the Commission – which has made much of its potent back upward for Schengen – would live on willing to advise a intermission for 2 years.

Even if it’s legal to threaten Hellenic Republic this way, is it wise? The European Union was heavily criticised for trying to strong-arm Hellenic Republic as regards the euro – although technically it wasn’t the European Union institutions making the threats concluding summer, but rather the parallel ‘Eurogroup’ bodies which are non an ordinary component subdivision of the EU’s political system.

Far amend for the European Union to redouble its efforts to aid both Hellenic Republic as well as the people concerned, yesteryear ensuring that in that location are decent reception centres as well as living atmospheric condition inwards the country, yesteryear making greater travail to ensure that the relocation organisation works, as well as yesteryear working amongst Turkey to really improve the living atmospheric condition of refugees there, so that fewer of them want to go out (more on that recent EU/Turkey bargain inwards a afterwards spider web log post).

As regards Schengen itself, if a temporary intermission is strongly desired, it mightiness live on amend to supply for it yesteryear agency of a legislative amendment to the Schengen Borders Code (with a ‘sunset clause’ providing for its expiry, since permanent intermission would violate the Treaties) rather than yesteryear the indirect agency of threatening Greece. Or an amendment to the rules on checks close the internal borders could justify unopen to occasional checks inwards the trial of dysfunctional applications of European Union asylum rules, if fixing those rules proves politically impossible – as good it might.

Barnard & Peers: chapter 26

Photo credit: dialoguereview.com

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