The principle of proportionality in exceptions to the abolition of
internal border control in the EU
University of Eastern Finland
UEF Law School
Master‟s thesis
12.08.2017
Samu Pätilä, 264101
Supervisor: Kim Talus
II
Abstract UNIVERSITY OF EASTERN FINLAND
Faculty
Faculty of Social Sciences and Business Studies
Department
Law School
Author
Samu Pätilä
Title
The principle of proportionality in exceptions to the abolition of internal border control
in the EU
Major subject
European Union Law
Work type
Master’s thesis
Time
Autumn
2017
Pages
XIII+66
Abstract
The migratory crisis of 2015 created an unforeseen challenge for the Schengen system. As a
response to serious threats to public policy and internal security, temporary border controls at
the internal borders of eight Member States were reintroduced in accordance with the
Schengen Borders Code (SBC) Articles 23–26. Meanwhile, the Netherlands opted to intensify
checks within the territory, with the purpose of migration control, in accordance with Article
21 SBC and leaving a question of what was the difference between these two measures.
The principle of proportionality limits the application of Articles 23–26 SBC, but it is not
included in SBC Article 21. Proportionality can still restrict checks within the territory at
national level, if the application of Article 21 in the Member States‟ legislation is pushed too
far. Assessing these measures is hindered by the fact that there is no uniform way for
measuring proportionality in the EU.
The Commission considered temporary border controls a legitimate and proportionate response
to large migratory flows, even though in 2013 the EU legislator disagreed with this view. At
the same time, national courts in the Netherlands disagreed on the legality of intensified
internal controls, as their grounds for justification were left unclear.
When border control and immigration control are entwined and criminalising illegal entry of
migrants is becoming more common, the EU should redefine the rules on the exceptions to the
abolition of internal border control in order to maintain legitimate and non-discriminatory
controls at the internal borders and to prevent the abuse of loopholes in the SBC.
Key words
Schengen area, border control, checks within the territory, proportionality
III
Tiivistelmä ITÄ-SUOMEN YLIOPISTO
Tiedekunta
Yhteiskuntatieteiden ja kauppatieteiden tiedekunta
Yksikkö
Oikeustieteiden laitos
Tekijä
Samu Pätilä
Työn nimi
Suhteellisuusperiaate Schengen-alueen sisärajojen rajavalvonnan palauttamisessa
Pääaine
Eurooppaoikeus
Työn laji
Pro gradu-tutkielma
Aika
Syksy
2017
Sivuja
XIII+66
Tiivistelmä
Vuoden 2015 siirtolaiskriisi loi ennenäkemättömän haasteen Schengen-alueelle. Vastauksena
yleiseen järjestykseen ja sisäiseen turvallisuuteen kohdistuneisiin uhkiin, väliaikainen
rajavalvonta palautettiin kahdeksassa jäsenvaltiossa Schengenin rajasäännöstön artikloiden 23–
26 mukaisesti. Samaan aikaan Alankomaat tehosti alueen sisällä tehtäviä tarkastuksia
maahanmuuton kontrolloimiseksi rajasäännöstön artiklan 21 mukaisesti, herättäen kysymyksen
näiden kahden toimenpiteen eroista.
Suhteellisuusperiaate rajoittaa rajasäännöstön artikloiden 23–26 toimeenpanoa, mutta se ei ole
läsnä artiklassa 21. Suhteellisuusperiaate voi silti olla rajoittava tekijä alueen sisällä tehtävissä
tarkastuksissa, jos artiklan 21 soveltaminen viedään kansallisessa lainsäädännössä liian
pitkälle. Näiden toimenpiteiden arvioimista vaikeuttaa se, että sen suhteellisuuden
mittaamiselle ei ole yhtä selkeää menetelmää EU:ssa.
Euroopan komissio totesi väliaikaisen rajavalvonnan olevan lainmukainen ja sopusuhtainen
vastaus suuriin siirtolaisvirtoihin, vaikka vuonna 2013 EU lainsäätäjä ei hyväksynyt tätä
näkökantaa. Samanaikaisesti Alankomaiden kansalliset tuomioistuimet olivat eri mieltä
tehostettujen tarkastusten laillisuudesta epäselvien oikeusperusteiden takia.
Kun rajavalvonta ja maahanmuuton kontrollointi alkavat muistuttaa toisiaan ja maahanmuuton
kriminalisointi yleistyy, EU:n pitäisi määritellä uudelleen sisärajojen valvonnan palauttamista
koskevat säännöt, taatakseen laillisen ja syrjimättömän valvonnan sisärajoilla ja estääkseen
rajasäännöstön porsaanreikien hyödyntämisen.
Avainsanat
Schengen alue, rajavalvonta, alueen sisällä tehtävät tarkastukset, suhteellisuusperiaate
IV
TABLE OF CONTENTS
ABBREVIATIONS ............................................................................................................. V
BIBLIOGRAPHY .............................................................................................................. VI
1 INTRODUCTION ............................................................................................................ 1
1.1 Framework: Schengen borders in a time of crisis ....................................................... 1
1.2 Research question, methodology and structure ........................................................... 7
2 BORDERLESS EUROPE .............................................................................................. 11
2.1 Schengen area and cooperation ................................................................................. 11
2.2 Schengen Borders Code............................................................................................. 14
2.2.1 Checks within the territory: Article 21 SBC ...................................................... 15
2.2.2 Temporary reintroduction of internal border control: Articles 23–26 SBC ....... 21
3 PROPORTIONALITY AND INTERNAL BORDER CONTROL ........................... 25
3.1 General principle of proportionality .......................................................................... 25
3.2 Proportionality in the Schengen Borders Code ......................................................... 29
3.2.1 Proportionality in temporary reintroduction of border control ........................... 30
3.2.2 Proportionality in checks within the territory ..................................................... 34
4 MANAGING INTERNAL BORDERS IN TIMES OF CRISIS ................................ 39
4.1 Effects of the migratory crisis ................................................................................... 39
4.2 Reintroduction of temporary border control in 2015................................................. 41
4.2.1 Prolongation of temporary border controls ........................................................ 45
4.2.2 Commission opinion on the German and Austrian measures............................. 48
4.3 Intensified checks within the territory in the Netherlands ......................................... 50
4.4 Migratory flows as justification ................................................................................. 54
4.4.1 Changes in the concept of asylum ...................................................................... 54
4.4.2 Expansion of migration control .......................................................................... 56
5 CONCLUSION ............................................................................................................... 61
V
ABBREVIATIONS
AG Advocate General
CISA Convention Implementing the Schengen
Agreement
CJEU, the Court Court of Justice of the European Union
Commission, COM European Commission
Council Council of the European Union
ECJ European Court of Justice
EU European Union
Frontex European Border and Coast Guard Agency
MSM Mobile Security Monitor (Mobiel Toezicht
Veiligheid)
SBC Regulation (EC) No 562/2006 of the European
Parliament and of the Council of 15 March 2006
establishing a Community Code on the rules
governing the movement of persons across
borders (Schengen Borders Code)
SIS Schengen Information System
TCN Third country national
TEU Treaty on European Union
TFEU Treaty on the Functioning of the European Union
US United States of America
VI
BIBLIOGRAPHY
LITERATURE
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VII
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VIII
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Zedner, Lucia: Is the Criminal Law Only for Citizens? A Problem at the Borders of
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Articles
Campesi, Giuseppe: The Arab Spring and the Crisis of the European Border Regime:
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IX
McCreight, Matilde Ventrella: Smuggling of Migrants, Trafficking in Human Beings and
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LEGISLATION
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UN Convention Relating to the Status of Refugees 1951. Geneva, 28.7.1951.
Convention Implementing the Schengen Agreement of 14 June 1985 between the
Governments of the States of the Benelux Economic Union, the Federal Republic of
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borders, Official Journal L 239 , 22.9.2000, pp. 19-62.
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Consolidated version of the Treaty on European Union, Official Journal C 202, 7.6.2016,
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X
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certain substances having a hormonal action. Official Journal L 70, 16.3.1988, pp. 16–18.
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across borders (Schengen Borders Code). Official Journal L 105, 13.4.2006, pp. 1-32.
Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June
2013 establishing the criteria and mechanisms for determining the Member State
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Netherlands
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OFFICIAL SOURCES
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XI
rules governing the movement of persons across borders (Schengen Borders Code),
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12110/15, 17.9.2015.
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Entry/Exit System.
XII
INTERNET SOURCES
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XIII
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CASE LAW
The Court of Justice of the European Union
C-331/88 The Queen v Minister of Agriculture, Fisheries and Food and Secretary of State
for Health, ex parte: Fedesa and others, [1988], ECLI:EU:C:1990:391
C-331/88 The Queen v Minister of Agriculture, Fisheries and Food and Secretary of State
for Health, ex parte: Fedesa and others, [1988], ECLI:EU:C:1990:391, Opinion of Mr
Advocate General Mischo.
C-312/89 & Case C-332/89 Joined opinion of Advocate General van Gerven, [1990],
ECLI:EU:C:1990:418
C-169/91 Council of the City of Stoke-on-Trent and Norwich City Council v B & Q plc.,
[1992], ECLI:EU:C:1992:519
C-169/91 Council of the City of Stoke-on-Trent and Norwich City Council v B & Q plc.,
[1992], ECLI:EU:C:1992:519, Opinion of Advocate General Fennelly.
C-120/94 Commission of the European Communities v Hellenic Republic, [1996],
ECLI:EU:C:1996:116, Opinion of Advocate General Jacbobs.
Joined cases C-188/10 and C-189/10 Aziz Melki and Sélim Abdeli, [2010],
ECLI:EU:C:2010:363
Joined cases C-188/10 and C-189/10 Aziz Melki and Sélim Abdeli, [2010],
ECLI:EU:C:2010:319, View of Advocate General Mazák.
C-278/12 A. Adil v Minister voor Immigratie, Integratie en Asiel, [2012],
ECLI:EU:C:2012:508
C-9/16 Request for a preliminary ruling in Amtsgericht Kehl v A lodged on 7 January
2016. Official Journal C 136, 18.4.2016, pp. 8-9.
1
1 INTRODUCTION
1.1 Framework: Schengen borders in a time of crisis
In 2015 more than one million migrants entered the European Union (EU) fleeing from
conflicts in their home regions and seeking protection, marking the beginning of the so
called migratory crisis of 2015.1 During 2015, the European Border and Coast Guard
Agency (Frontex) reported over 1.82 million detections of illegal border crossings along
the external borders of the Schengen area, over six times more than in the previous year,
creating immense pressure on the management of the external borders.2 Europe was now
facing the largest migratory crisis since the Second World War, as uncontrolled migratory
flows shook the foundations of the modern Schengen system, which is one of the key
achievements of European integration.3
The majority of the illegal border crossings in 2015 were detected on the Eastern
Mediterranean route between Turkey and the Greek islands,4 making Greece and Italy
particularly affected by the migratory flows.5 Greece and Italy were troubled, because as
Member States of first entry for large numbers of migrants, they were obliged by the
Dublin III Regulation6 to register all applicants for international protection entering their
territory and to provide them reception conditions acceptable under EU law as well as
fundamental rights.7
In 2015, The European Asylum Support Office reported over 1.35 million registered
asylum applications, which was the highest number recorded since the collection of this
data began in 2008.8 Due to the excessive migratory pressure, registering all asylum
1 Greenhill 2016, “Open Arms Behind Barred Doors: Fear, Hypocrisy and Policy Schizophrenia in the
European Migration Crisis”, European Law Journal (2016), p. 317. 2 Frontex 2016, “Risk Analysis for 2016”, p. 16.
3 European Commission 2016, Communication from the Commission to the European Parliament, the
European Council and the Council: Back to Schengen – A Roadmap, COM(2016) 120 final, 4.3.2016, p. 2.
[Later European Commission, COM(2016) 120 final]. 4 Frontex 2016, p. 18.
5 Greenhill 2016, p. 319.
6 Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing
the criteria and mechanisms for determining the Member State responsible for examining an application for
international protection lodged in one of the Member States by a third-country national or a stateless person.
Official Journal L 180, 29.6.2013, pp. 31–59. [Later Dublin Regulation]. 7 European Commission, Eighth biannual report on the functioning of the Schengen area, COM(2015) 675,
15.12.2015, p. 5. [Later European Commission, COM(2015) 675]. 8 Frontex 2016, p. 30.
2
seekers in Greece and Italy resulted in a failure. Separation between legitimate asylum
seekers and so called economic migrants could no longer be made, creating a possibility
for unwanted persons to enter into the European territory.9 As the rules of the Dublin
system could no longer be obeyed, uncontrolled migratory flows at the external borders
shifted to secondary movements of migrants inside the Schengen area, when registered and
unregistered migrants continued their way into Europe and the Member States of their
choice.10
The secondary movements of migrants were enabled by the ideal of a borderless Europe,
created by the modern Schengen system. The Schengen Agreement in 1995 was a big step
for the free movement of persons, as it created the concept of external and internal
Schengen borders by removing the need for visa or passport checks when crossing the
internal borders of Schengen States, concentrating border controls on the external border.11
The Schengen agreement did not only benefit EU citizens, but it also developed short stay
conditions for third country nationals (TCN), granting the right of free movement to all
persons inside the Schengen area regardless of nationality.12
This freedom, however, did
not come without consequences, as now the European borders were only as strong as the
weakest section of the external border.13
The migratory crisis of 2015 was not completely unpredictable, as the numbers of migrants
entering Europe had been increasing steadily since 2013.14
The memory of the so called
Arab Spring situation in 2011 was still fresh,15
when 30,000 Tunisians entered Italy and
were issued temporary residence cards, allowing them to continue onwards to other
Member States, violating the Schengen rules.16
To prevent a similar crisis from happening,
Frontex responded to the developing threat level in the Central Mediterranean area by
9 Kaca 2016, “Schengen‟s Future in Light of the Refugee Crisis”, p. 2.
10 See Romano 2016, “Schengen at the crossroads between Dublin‟s failure and the rising populism in the
EU. Constitutional and political scenarios in the context of the current refugee crisis”, p. 4 and Menéndez
2016, “The Refugee Crisis: Between Human Tragedy and Symptom of the Structural Crisis of European
Integration”, p. 388. 11
Davies 2016, “Understanding European Union Law” p. 143. 12
Rosas - Armati 2016, “EU Constitutional Law”, p. 186. 13
Karanja 2008, “Transparency and Proportionality in the Schengen Information System and Border Control
Co-operation”, p. 51. 14
Menéndez 2016, p. 388. 15
Peers 2014, “Immigration and asylum”, In Bernard, Catherine and Peers, Steve (Eds.): European Union
law, pp. 781-782. 16
Epiney – Egbuna-Joss 2016, “Schengen Borders Code Regulation No 562/2006”, In Hailbronner, Kay and
Thym, Daniel (Eds.): EU Immigration and Asylum Law. Commentary, 2nd
edition, p. 103.
3
launching Operation Triton in November 2014,17
with an objective of boosting the
surveillance of maritime borders.18
However, Operation Triton alone was not enough to
restrain the flow of migrants in 2015, consisting mostly of Syrian nationals fleeing civil
war.19
In September 2015, the European Commission (Commission) and the Council of the
European Union (Council) tried to ease the situation in Greece and Italy by relocating
160,000 asylum applicants to other EU Member States.20
The spreading of the migratory
pressure did not provide the wanted solutions for the crisis, and obscurities in the
application of the Dublin system generated heated arguments between Member States.
Different policy responses to the question of who should take the responsibility of the
unregistered migrants led to a situation where various Member States chose their national
interests over the commonweal of the Union.21
During late 2015 and early 2016, the secondary movements of migrants inside the
Schengen area were used as a reason to declare a serious threat to internal security and
public policy in eight Schengen States: Germany, Austria, Hungary, Slovenia, Sweden,
Norway, Denmark and Belgium.22
These threats justified making an exception to the
abolition of internal border control provided by the Schengen Borders Code23
(SBC),
which acts as the main regulation in the EU concerning rules on border control.24
Articles
23–26 SBC cover three different situations where temporary border controls may be
reintroduced. Now one of these means was applied, as temporary border controls were
reintroduced at the internal borders of these eight Member States in accordance with
Article 25 SBC, which provided a specific procedure for cases requiring immediate action.
17
Frontex 2016, “Joint Operation Triton (Italy)”. 18
Jumbert 2015, “A Close Look at Border Security in the Mediterranean”. 19
Kaca 2016, p. 1. 20
European Commission, COM(2015) 675, p. 3. 21
See European Parliament’s Policy Department for Citizen’s Rights and Constitutional Affairs: “Internal
border controls in the Schengen area: is Schengen crisis-proof?”, p. 50 and Greenhill 2016, p. 317. 22
European Commission 2017, Member States‟ notifications of the temporary reintroduction of border
control at internal borders pursuant to Article 25 et seq. of the Schengen Borders Code. 23
Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006
establishing a Community Code on the rules governing the movement of persons across borders. Official
Journal L 105, 13.4.2006, pp. 1-32. [Later Schengen Borders Code]. 24
Europa 2014, section: Schengen Borders Code.
4
Before 2013, temporary reintroduction of border control used to be a privilege of the
Member States, but the SBC was amended following the Arab Spring situation introducing
Article 26 SBC, empowering the Council to recommend the reintroduction of internal
border control in a situation where the overall functioning of the area without internal
border control is at risk due to serious deficiencies relating to external border control.25
The Council used this power in May 2016, when it suggested that Germany, Austria,
Denmark, Sweden and Norway prolong their application of temporary reintroduction of
border control.26
The temporary reintroduction of border control in the eight Member States was not the
only exception made to the abolition of internal border control during 2015, as the
Netherlands searched the SBC for a more creative solution to the migratory crisis.27
This
was provided by Article 21 SBC: checks within the territory, which defines that even
though Schengen States have agreed upon the removal of border control, they have not
given up on all forms of control at internal borders.28
Despite the abolition of internal
border control, Article 21(a) SBC allows Member States to continue exercising police
powers in border areas, as long as they do not have an effect equivalent to border checks.29
Instead of reintroducing temporary border controls to control the movements of migrants, a
decision was made in the Netherlands to intensify the frequency and intensity of the
exercise of police powers in border areas, with the purpose of migration control. This
national measure was the first of its kind and enabled by a recent 2014 addition to the
Dutch national legislation concerning the implementation of Article 21 SBC. Intensifying
the exercise of police powers allowed the Netherlands to reach similar objectives pursued
in the eight Member States applying temporary border controls, but it did not create similar
obligations to the Netherlands, nor create similar pressure on the Schengen system, raising
the question: what was the actual difference between police performed identity checks and
border checks?30
25
Schengen Borders Code, Article 26. 26
Council of the European Union, Council Implementing Decision setting out a Recommendation for
temporary internal border control in exceptional circumstances putting the overall functioning of the
Schengen area at risk. 8835/16. 12.5.2016. [Later Council Document, 8835/16]. 27
Van der Woude 2015, “The Dutch Response to the Refugee Crisis”. 28
Karanja 2008, p. 387. 29
Schengen Borders Code, Article 21. 30
Guild, Brouwer, Groenendijk and Carrera, “What is happening to the Schengen borders?”, pp. 16-17.
5
Border control in the EU, alongside with immigration and asylum policies, falls under the
Area of Freedom Security and Justice, which is one of the shared competences between the
EU and its Member States.31
As part of the shared competences, border control related
matters shall comply with the principles of subsidiarity and proportionality.32
The principle
of proportionality acts as one of the general principles of EU law restraining legislative and
administrative acts.33
The proportionality principle is defined on a Treaty level in the
Treaty on European Union (TEU) Article 5(4) in a way that “the content and form of
Union action shall not exceed what is necessary to achieve the objectives of the
Treaties.”34
In the area of free movement, reintroduction of border control should remain an exception
and a last resort measure.35
Article 23 SBC states that “[t]he scope and duration of the
temporary reintroduction of border control at internal borders shall not exceed what is
strictly necessary to respond to the serious threat.”36
To highlight this exceptional nature,
the EU legislator has included the requirement to respect the principle of proportionality
into Articles 23–26 SBC regarding temporary reintroduction of border control.37
This
requirement applies to all situations where temporary border controls may be introduced.38
Having proportionality as a restricting factor when it comes to tightening the control of
internal borders is important, because exceptions to the abolition of internal border control
create limitations to the free movement of persons,39
which is one of the four freedoms of
the EU, based on TEU Article 3(2).40
EU citizens have enjoyed the freedom to move freely
within the territory of the Member States since the Treaty of Maastricht in 1992 and the
31
Gibbs 2011, “Reasoned „Balance‟ in Europe‟s Area of Freedom, Security and Justice”. European Law
Journal (2011), Vol. 17, No 1, p. 121. 32
Thym 2016, “Legal Framework for Entry and Border Controls”, In Hailbronner, Kay and Thym, Daniel
(Eds.): EU Immigration and Asylum Law. Commentary, 2nd edition, pp. 36. 33
Bradley 2014, “Legislating in the European Union”. In Bernard, Catherine and Peers, Steve (Eds.):
European Union law. Oxford University Press, pp. 98-139. 34
Treaty on European Union, Article 5(4). 35
Schengen Borders Code, recital 17. 36
Ibid. Article 23. 37
European Commission, COM(2015) 675, p. 5. 38
Jorgensen – Sorensen 2012, “Internal border controls in the European Union: recent challenges and
reforms”, European Law Review (2012), p. 8. 39
European Commission, COM(2016) 120 final, p. 3. 40
See Treaty on European Union, Official Journal C 202, 7.6.2016, pp. 13–45 and Chalmers, Davies and
Monti 2014. “European Union Law”, p. 475.
6
establishment of Union citizenship,41
which is guaranteed by Article 21 of the Treaty on
the Functioning of the European Union (TFEU).42
As mentioned earlier, the right to free movement inside the Schengen area is not just for
Union citizens. The free movement of TCNs is based on TFEU Article 77(1), which states
that the Union shall develop a policy with a view to ensure “the absence of any controls on
persons, whatever their nationality, when crossing internal borders”43
, which was realised
with the Schengen Agreement in 1995.44
The reintroduction of temporary border control is not considered as a last resort option
only because it creates limitations to the freedom of movement, but it also creates major
economic costs to the EU by damaging the functioning of the Single European Market.45
One of the main reasons for expanding free moment to also include TCNs was to improve
the functionality of the Single Market, because a situation where only Union citizens
benefitted from the free movement would not be the best from an economical point of
view.46
The Commission has estimated that carrying out internal border controls on a full
scale would cost the EU from €5 to €18 billion annually, including only direct costs.47
Because exceptions to the abolition of internal border control have such notable
consequences, the application of temporary border control and checks within the territory
are tightly regulated in the SBC.48
The SBC amendment of 2013 increased the significance
of the proportionality principle as one of these limiting factors.49
However, the problem
with the principle of proportionality in assessing both of the two exceptions to the abolition
of internal border control is that, even though proportionality is considered to be a general
principle of EU law, there is no uniform way for measuring it in the case law of the Court
of Justice of the European Union (CJEU).50
41
Davies 2016, p. 142. 42
Treaty on the Functioning of the European Union. Official Journal C 202. 7.6.2016, pp. 47-199. 43
Treaty on the Functioning of the European Union, Article 77(1). 44
Rosas - Armati 2016, p. 186. 45
European Commission, COM(2016) 120 final, p. 3. 46
Sánchez 2009, “Free Movement of Third Country Nationals in the European Union? Main Features,
Deficiencies and Challenges of the new Mobility Rights in the Area of Freedom, Security and Justice.”
European Law Journal (2009), Vol. 15, No. 6, pp. 791–805. 47
European Commission, COM(2016) 120 final, p. 3 48
Jorgensen – Sorensen 2012, p. 251. 49
Peers 2013, “The Future of the Schengen System”, p. 44 50
Tridimas 2006, ”The General Principles of EU Law”, p. 173.
7
1.2 Research question, methodology and structure
The aim of this master‟s thesis is to provide understanding of how the principle of
proportionality affects the application of the two exceptions to the abolition of internal
border control provided by the SBC: Article 21 SBC (checks within the territory) and
Articles 23–26 SBC (temporary reintroduction of internal border control). The migratory
crisis of 2015 acts as a starting point for this thesis. The exceptions made to the abolition of
internal border control during the migratory crisis make examining proportionality in this
context the current and important topic that it is. Because of this, measures taken by
Member States and EU institutions during the migratory crisis will be used as an example
in this thesis to examine what significance the principle of proportionality holds in
practice.
Any legal research should begin by identifying the specific research questions.51
The
research question of this thesis is: how does the principle of proportionality restrict the
application of temporary reintroduction of border control and checks within the territory?
In order to answer this question, a comprehensive understanding of the two exceptions to
the abolition of internal border control in the EU and proportionality, as a general principle
of EU law, is required. Chapter 2 of this thesis will provide the necessary background
information by covering the Schengen acquis and the rules on which Schengen cooperation
is based.52
This will include a general overview of the SBC as the main EU regulation
concerning the rules on border control and present temporary reintroduction of border
control and checks within the territory in detail.53
As a traditional and well suited method for examining valid and binding law,54
a study
method of legal dogmatics has been chosen for this master‟s thesis. This choice shows up
in Chapter 3, which will examine the principle of proportionality closer and present the
traditional ways used to assess the proportionality of a measure. After this overview,
Chapter 3 will examine in more detail how the proportionality principle is included in
51
McConvville – Chui, “Research Methods for Law”, p. 33. 52
European Commission 2011, Communication from the Commission to the European Parliament, the
Council, the European Economic and Social Committee and the Committee of the Regions: Schengen
governance - strengthening the area without internal border control, COM(2011) 561 final, 16.9.2011. [Later
European Commission 2011, COM(2011) 561 final]. 53
Council adopts the Schengen Governance legislative package. 14441/13, 7.10.2013. 54
Hirvonen 2011, ”Mitkä metodit? Opas oikeustieteen metodologiaan”, p. 23.
8
Articles 21 and 23–26 SBC. Because reviewing the SBC alone would not provide a full
picture of how proportionality affects the application of these two measures, relevant case
law of the CJEU will also be examined, which is a typical research method in legal
dogmatics to gain a better understanding of written law.55
Case law of the CJEU concerning temporary reintroduction of border control is scarce, but
there are two significant landmark cases connected to the application of checks within the
territory in the Member States. These two judgments of the European Court of Justice
(ECJ) will link Chapters 3 and 4 to the Netherlands, which will be used as the main
example in this thesis when it comes to the application of Article 21 SBC. The reason
behind this choice is that the Netherlands has a long history and the most advanced
national legislation among the Member States when it comes to the application of Article
21 SBC.56
Chapter 4 will examine the consequences of the migratory crisis in more detail, divided
between temporary border control and checks within the territory. Chapter 4.2 concentrates
on the former and describes the situation in the eight Member States that applied Articles
23–26 SBC because of the uncontrollable migratory flows, focusing on the initiators of
these measures: Germany and Austria. Chapter 4.3 will explain how the application of
Article 21 SBC was used to restrict the arrival of migrants into Dutch territory in 2015.
Chapters 4.2 and 4.3 will examine how these measures were justified, what kind of
consequences they had and why the principle of proportionality should be taken into
account in their application. The remainder of Chapter 4, before the conclusions of this
thesis, will examine the changes that have happened in the concept of asylum and attitudes
towards large migratory flows, which have eventually led into the expansion of migration
control and changes in how restrictions to the freedom of movement can be justified.
This thesis approaches its topic from a border security point of view. The focus is on the
free movement of persons, leaving out any questions related to free movement of goods. It
is important to understand the effects of the migratory crisis to the Schengen system when
examining the proportionality of the Member States‟ restrictive measures; the purpose of
55
Ibid. 2011, p. 23. 56
Van der Woude 2015.
9
this thesis, however, is not to focus on the migratory crisis, human rights, or asylum related
questions. Despite the significant effects of the migratory crisis for the Schengen borders,
asylum legislation is not part of the Schengen acquis protocol.57
When talking about migrants, refugees and asylum seekers, it should be noted that these
terms can hold multiple meanings.58
To clarify the terminology used in this thesis, the term
„migrant‟ is used when talking about persons who are on the move, not because their safety
is threatened in their own region, but to improve their living conditions, reunite with their
families or to find work. The definition „refugee‟ is used on persons who cross national
borders to seek protection from persecution or armed conflict.59
The definition „asylum seeker‟ is used on persons who seek acceptance to another state by
claiming to be a convention refugee under the United Nations Convention Relating to the
Status of Refugees, but whose asylum decision is not yet made.60
„Irregular‟ or „illegal‟
immigrant refers to migrants whose presence in a territory is against the law; being
irregular involves crossing borders without permission, bypassing border crossing points or
lacking valid travel documents or papers.61
When talking about the terminology related to the control of the external and internal
borders, this thesis uses corresponding definitions with the SBC, where the term „border
control‟ refers to means carried out at borders in response to intentions to cross the border,
consisting of border checks and border surveillance62
and „border check‟ refers to checks
carried out at border crossing points in order to ensure that persons may be authorised to
enter or to leave the territory of the Member States.63
As the Schengen area has been expanding since the 90‟s, it is worth mentioning that not all
EU Member States are signatory states to Schengen Agreement and that Schengen co-
operation consists of European countries that are not EU Member States. To keep a
uniform style with the existing EU legislation concerning Schengen cooperation in this
57
European Commission, COM(2015) 675, p. 3. 58
Price 2009, “Rethinking Asylum: History, Purpose and Limits”, p. 17. 59
Geneva 2016. ”UNHCR viewpoint: „Refugee‟ or „migrant‟ – Which is right?” 60
See Price 2009, p. 17 and UN Convention Relating to the Status of Refugees 1951. Geneva, 28.7.1951. 61
Johnson 2014: “Borders, Asylum and Global Non-Citizenship”, p. 4. 62
Schengen Borders Code, Article 2(9). 63
Ibid. Article 2(10).
10
thesis, the definition of „Member States‟ is still used when referring to countries
participating in the Schengen co-operation. The definition of „Schengen States‟ is still used
when it is necessary to refer to the signatory states of the Schengen agreement.
The legislation used in this thesis has been observed as it stood at the end of July 2017.
11
2 BORDERLESS EUROPE
2.1 Schengen area and cooperation
The right to cross Member States‟ borders without having to undergo border checks
derives from the free movement of persons, which is one of the four core freedoms of the
EU introduced in the EEC treaty of 1957.64
These four freedoms have supported the
development of the internal market area without frontiers, which has been one of the main
goals for the EU, since its introduction with the Singe European Act in 1986.65
EU citizens
have enjoyed the right of free movement as one of the basic rights provided by Union
citizenship since its establishment with the Treaty of Maastricht in 1992.66
The general
guideline for this freedom can be found in TFEU Article 21, which states that “Every
citizen of the Union shall have the right to move and reside freely within the territory of
the Member States”67
.
The area without internal borders known as the Schengen area, where the four freedoms
can be fully utilised, is one of the finest achievements of European integration.68
The
Schengen area is a product of the Schengen Conventions of 1985 and 1990, which created
the Schengen Agreement and the Convention Implementing the Schengen Agreement
(CISA).69
Throughout history, European borders have gone through many cultures of
border control with their unique features, but the Schengen Conventions arranging the new
rules of border control have been undoubtedly the clearest turning point for a new culture
of border control in Europe.70
The Schengen Conventions redefined the meaning of borders by introducing the concepts
of internal and external borders.71
Article 1 CISA defined internal borders as “the common
land borders of the [Schengen States], their airports for internal flights and their sea ports
for regular ferry connections exclusively from or to other ports within the territories of the
64
Treaty Establishing the European Community. Official Journal C 325, 24.12.2002, pp. 33–184. 65
Chalmers, Davies and Monti 2014, p. 22. 66
Davies 2016, p. 142. 67
Treaty on the Functioning of the European Union. Article 21. 68
Davies 2016, p. 143. 69
Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the
States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the
gradual abolition of checks at their common borders, Official Journal L 239 , 22.09.2000, pp. 19-62. [Later
CISA]. 70
Zaiotti 2011, “Cultures of Border Control”, pp. 25-27 and p. 71. 71
Ibid. p. 71.
12
[Schengen States] and not calling at any ports outside those territories”.72
External borders
were defined with a simple reverse definition as “land, sea land and sea borders and their
airports and sea ports, provided that they are not internal borders”.73
The signatory states of these two agreements, including EU Member States and non-EU
states, agreed upon speeding the development of the internal market area by removing
border checking procedures at the internal borders of the new Schengen area.74
Schengen
cooperation entered into force in 1995 and border control shifted to the external borders of
the Schengen area, where all persons entering or leaving were to undergo a border check
regardless of their nationality.75
The Treaty of Amsterdam entering into force on 1 May 1999 was another big step for the
free movement of persons, as it created the Area of Freedom, Security and Justice and
reorganised the now abandoned EU pillar structure by moving rules concerning
immigration, asylum and border control under the first pillar,76
placing these subjects under
the control of the Commission for the first time.77
With the Treaty of Amsterdam, the
Schengen Agreement and Schengen acquis were incorporated into the EU legal
framework.78
The Schengen acquis protocol set the newly formed Schengen area under
parliamentary and judicial scrutiny, placing it under democratic parliamentary control, and
gave Union citizens access to legal remedies in case their rights were violated.79
Benefits relating to the free movement of persons created by the Schengen Agreement
were not only meant for EU citizens, but for all persons regardless of their nationality. This
was established with Article 19 CISA, stating that “[a]liens who hold uniform visas and
who have legally entered the territory of a Contracting Party may move freely within the
territories of all the Contracting Parties during the period of validity of their visas”.80
This
72
CISA, Article 1. 73
Ibid. 74
Chalmers, Davies and Monti 2014, pp. 521-522. 75
Europa 2009, section: the Schengen area and cooperation. 76
Craig 2014, ”Development of the EU”. In Bernard, Catherine and Peers, Steve (Eds.): European Union
law, pp. 23-24. 77
Lang 2008, “Third Pillar Developments from a Practitioner‟s Perspective”. In Guild, Elspeth and Geyer,
Florian (Eds.): Security versus Justice? Ashgate Publishing Company, p. 265. 78
Chalmers, Davies and Monti 2014, p. 29. 79
Europa 2009, section: the Schengen area and cooperation. 80
CISA, Article 19.
13
gave TCNs the same right to move freely within the Schengen area as Union citizens, once
they had entered it.81
On Treaty level, the TCNs right to free movement is guided by Article 77(1) TFEU, which
states that the Union shall develop a policy that ensures “the absence of any controls on
persons, whatever their nationality, when crossing internal borders”.82
Article 77(1) TFEU
instructs actions of the EU to support efficient monitoring of the crossing of external
borders and indicates that border control is no longer guided by the single market, but it
has become self-sufficient in itself.83
Even though EU citizens and TCNs started to enjoy similar rights of movement inside the
Schengen area, they were still separated by border checking procedures at the external
border: EU citizens were to go through a so called minimum check, while TCNs were
required to pass a more detailed thorough check to ensure they fulfilled entry conditions set
for them.84
In order to confirm the fulfilment of these entry conditions, harmonisation of
visa policy among the signatory states was necessary.85
For this purpose, Article 10 CISA
introduced a uniform visa system. Uniform visas would be issued in accordance with
common conditions, regardless of the issuing member state, and the visas would be valid in
the entire territory of the Schengen area for short stay visits not exceeding 3 months.86
Visas that were issued for longer periods of time would be national visas and no subject to
Schengen rules.87
The removal of internal border control did not come without consequences. Focusing
border control on the external border made it easier for law-breakers and unwanted persons
to move inside the Schengen area without being stopped once they had entered it.88
Illegal
overstaying became easier because border checks on exit happened only when leaving the
Schengen area.89
To prevent the decline of security, cross-border cooperation was
81
Peers 2013, p. 9. 82
Treaty on the Functioning of the European Union. Article 77. 83
Thym 2016, “Legal Framework for Entry and Border Controls”, In Hailbronner, Kay and Thym, Daniel
(Eds.): EU Immigration and Asylum Law. Commentary, 2nd edition, pp. 35-36 84
Schengen Borders Code, Article 7. 85
Barnard 2013, “The Substantive Law of the EU”, p. 555. 86
CISA, Article 10. 87
Barnard 2013, p. 555. 88
Peers 2013, p. 9. 89
Frontex 2016, p. 27.
14
strengthened and new ways of exchanging information between Member States‟ authorities
were introduced, such as the Schengen Information System (SIS).90
Schengen cooperation in 2017 consists of 23 EU Member States and 3 non-EU states:
Iceland, Norway and Switzerland.91
Since the Treaty of Amsterdam, the EU legislator has
been actively building new legislation related to border control and visa policies on the
Schengen acquis that have replaced relevant parts of the Schengen Agreement and CISA.92
Schengen cooperation, in all of its broadness, cannot be covered with a single legislative
measure. This is why different parts of the Schengen acquis, such as visa policies and
information systems like SIS, are covered in their own regulations, while rules on border
control can be found in the SBC. 93
2.2 Schengen Borders Code
The Schengen Border Code was created to fill any legislative gaps left by the Schengen
Conventions and has been acting as the main regulation concerning rules on border control
in the Schengen area since it was introduced in 13 October 2006.94
The two main functions
of the SBC are established in its Article 1, which states that the regulation provides for the
absence of border control of persons crossing the internal borders between the Member
States and establishes rules governing border control of persons crossing the external
borders.95
The scope of application for the SBC is described in Article 7(1), which states
that any movement of persons at external borders shall result in border checks performed
by border guards, making SBC applicable to all persons entering or leaving the Schengen
area.96
The above-mentioned Article 77(1) TFEU stated that the Union shall develop policies to
ensure the absence of border control while crossing internal borders of the Schengen area
for all persons regardless of nationality. This promise and the objectives of the Schengen
Agreement are carried out with Article 20 SBC, which highlights the equivalence of EU
90
Spencer 2014, “EU Criminal Law”. In Bernard, Catherine and Peers, Steve (Eds.): European Union law.
Oxford University Press, p. 765. 91
Schengen Visa Info 2017, section: Schengen Area Countries List. 92
Peers 2014, p. 781. 93
Schengen Visa Info 2017, section: Schengen Area Countries List. 94
Europa 2014, section: Schengen Borders Code. 95
Schengen Borders Code, Article 1. 96
Ibid. Article 7.
15
citizens and TCNs by stating that “Internal borders may be crossed at any point without a
border check on persons, irrespective of their nationality, being carried out.”97
In brief,
Article 20 SBC leaves no room for internal border control as it establishes free movement
of persons within the Schengen area. This freedom, however, is a subject to limitations.
Even though the main purpose of the SBC is to remove internal border control, it takes into
account that in some situations different forms of control at the internal borders can be
justified or even necessary. This is why the SBC includes the two exceptions to the
abolition of internal border control: temporary reintroduction of border control and checks
within the territory.
2.2.1 Checks within the territory: Article 21 SBC
If reading the SBC in order, the first exception to the abolition of internal border control
can be found in Article 21 SBC, checks within the territory, which describes measures
competent authorities of the Member States can carry out under national law without
interfering with the free movement of persons established by Article 20 SBC.98
This means
that even though the Schengen States have agreed upon removing border checks at internal
borders, there is still room for other types of control that can be carried out on persons near
border areas.99
The nature of controls performed under Article 21 SBC is continuous:
competent authorities of Member States are allowed to exercise their powers as described
in Article 21 SBC without further announcements as long as the exercise of these powers
does not infringe upon Articles 20 or 21 SBC.
The idea for an alternative way of internal control originates from France, where mobile
patrols near internal borders started as early as 1994, with the purpose of searching illegal
immigrants. In 1996, The Schengen Executive Committee agreed to the creation of mobile
patrols and mobile frontiers that could be carried out in cooperation between the Member
States, as suggested by France, creating a clear connection between the abolition of
97
Ibid. Article 20. 98
Peers 2013, p. 19. 99
Van der Woude 2015.
16
internal border control and the birth of these new types of controls that could be carried out
in different forms.100
Article 21 SBC is divided into four paragraphs (a)-(d). This thesis will focus on paragraph
(a), which gives the Member States‟ competent authorities the right to exercise police
powers under the national law, as long as the exercise of these powers does not have an
equivalent effect to border checks performed by border guards.101
This gives Member
States a general guideline on how the application of police powers should be carried out
near border areas, a definition which has been interpreted in different ways by the Member
States, as can be seen in later examples.
“Article 21
Checks within the territory The abolition of border control at internal borders shall not affect:
(a) the exercise of police powers by the competent authorities of the Member States under national
law, insofar as the exercise of those powers does not have an effect equivalent to border checks;
that shall also apply in border areas. Within the meaning of the first sentence, the exercise of police
powers may not, in particular, be considered equivalent to the exercise of border checks when the
police measures:
(i) do not have border control as an objective,
(ii) are based on general police information and experience regarding possible
threats to public security and aim, in particular, to combat cross-border crime,
(iii) are devised and executed in a manner clearly distinct from systematic checks on
persons at the external borders,
(iv) are carried out on the basis of spot-checks;”102
The other three paragraphs (b)-(d) are shorter in length and have so far not required
interpretation from the CJEU. These paragraphs clarify that the abolition of border control
at internal borders shall not affect: security checks on persons at ports or airports, provided
that these checks are also performed to persons travelling within a Member State
(paragraph b), the possibility for a Member State to provide by law for an obligation to
hold or carry papers and documents (paragraph c) and the possibility for a Member State to
provide by law for an obligation of TCNs to report their presence in a territory of a
Member State (paragraph d).103
100
Karanja 2008, p. 387. 101
Schengen Borders Code, Article 21(a). 102
Ibid. 103
Ibid. Article 21(b)-(d).
17
Despite the fact that these three paragraphs are not in the focus of this thesis, paragraphs
(c) and (d) are significant for the exercise of police powers under paragraph (a), as they
clarify that even though EU citizens are not required to possess passports or identity cards
while crossing internal borders of Member States, they might still be required to present
identification documents inside the territory of Member States.104
When the SBC was first drafted, there was a lot of discussion about the relationship
between internal police controls and border checks. One of the main concerns of the EU
legislator was that identity checks performed under Article 21 SBC would become an
alternate form of border checks, if checks within the territory were not legislated and
restricted clearly enough.105
To prevent this from happening and to help Member States
distinguish measures that might be considered having an equivalent effect to border
checks, a 4-part list of police measures that may not, in particular, be considered having
equivalent effect to border checks, was included into Article 21(a) SBC.
The first point on this 4-part list is that police measures that do not have border control as
an objective should not be considered having equivalent effect to border checks (i). This
wording leaves discretion to the Member States to decide what kind of objectives can be
pursued with the exercise of police powers in their border areas, as long as their primary
objective is not related to border control. This vagueness left in this point is clarified in the
ECJ case Adil (C‑278/12) of June 2012,106
which is one of the landmark cases concerning
interpretation of Article 21 SBC.107
The judgment of Adil is significant because it clarified that the wording „in particular‟ used
in paragraph (a) means that the 4-part list of measures that may not be considered having
an equivalent effect to border checks, is not exhaustive.108
Therefore the exercise of police
powers in Member States under Article 21(a) SBC could have more objectives than the
ones included in the 4-part list and still be considered as non-equivalent. In Adil, this was
applied in a way which allowed police powers to be exercised in the Netherlands, not only
104
Karanja 2008, p. 51. 105
Guild, Brouwer, Groenendijk and Carrera 2015, p. 16. 106
C-278/12 PPU Adil [2012], ECLI:EU:C:2012:508. [Later Adil]. 107
Brouwer 2015, “Migration flows and the reintroduction of internal border controls: assessing necessity
and proportionality”. 108
Adil, para. 65.
18
for law enforcement purposes, but also for the purposes of immigration control.109
The
judgment of Adil clarified that the ECJ was willing to broaden the applicability of Article
21 SBC by separating immigration control from border checks and leaving room for
possible future additions to the 4-part list of applicable measures.
The second point on the 4-part list is that police measures should be considered as non-
equivalent, as long as they “are based on general police information and experience
regarding possible threats to public security and aim, in particular, to combat cross-border
crime”110
(ii). This point was also further clarified in the judgment of Adil, where the ECJ
stated that national police authorities can carry out identity checks in order to obtain such
general information and experience-based data, as long as obtaining this data is subject to
limitations concerning their intensity and frequency.111
The third point on the 4-part list clarifies that police measures that are planned and
executed clearly distinct from systematic border checks at the external borders, should be
considered as non-equivalent (iii).112
In Adil, the Commission highlighted selectivity as a
decisive factor, when it comes to separating identity checks performed by police
authorities from border checks. This meant that if only a selected group of individuals are
subject to identity checks performed under Article 21 SBC, it is more probable that these
checks are also non-equivalent to border checks.113
The last point on the 4-part list further
clarifies this assumption by stating that police measures that are carried out on the basis of
spot-checks and thus are not fixed, should be considered as non-equivalent (iv).114
When talking about checks within the territory, it should be specified what this „territory‟
where police performed identity checks can be carried out actually is. The territorial area
where Article 21 SBC can be applied varies between the four paragraphs (a)-(d). The
territorial scope of paragraph (b) is rather clear, as it simply states that security checks on
persons can be carried out at ports and airports.115
The territorial scope of paragraph (a),
however, is more unclear as it states that the exercise of police powers “shall also apply in
109
Adil, para. 88. 110
Schengen Borders Code, Article 21(a). 111
Adil, para. 88. 112
Schengen Borders Code, Article 21(a). 113
Adil, para. 44. 114
Schengen Borders Code, Article 21(a). 115
Ibid.
19
border areas”.116
The problem with this statement is that what is considered as border area
is no further defined in the SBC.
In the national legislation of the Member States, border area is understood as a territorial
scope, measured in kilometres, starting from land borders where police authorities are
allowed to carry out their predetermined tasks.117
The precise definition of a border area
has been debated among the Member States for a long time, but so far no agreement has
been reached, complicating various legislative proposals on the EU level.118
Because there
is no one clear definition of a border area, the territorial scope of Article 21(a) SBC varies
between the Member States.119
This situation is clarified in another landmark case
concerning the interpretation of Article 21 SBC: joined cases Aziz Melki (C-188/10) and
Sélim Abdeli (C-189/10).120
Melki and Abdeli was the first time when the CJEU had the opportunity to address the
application of police powers under Article 21 SBC.121
In Melki and Abdeli, the question
was about the legality of the detention of two Algerian nationals illegally staying in
France, who were stopped by the French police near the land border with Belgium, under
the French Code of Criminal Procedure, which allowed the French police to perform
identity checks on persons within an area of 20 kilometres from land borders.122
In its
judgment, the ECJ clarified that Articles 20 and 21 SBC together precluded national
legislation, which allows police authorities to check the identity of any person irrespective
of his behaviour within 20 kilometres of land borders, if the national legislation does not
provide the necessary framework to guarantee that these checks do not have an equivalent
effect to border checks.123
116
Ibid. 117
Atger, Anaïs Faure: The Abolition of Internal Border Checks in an Enlarged Schengen Area: Freedom of
movement or a web of scattered security checks? CEPS 2008, p. 10. 118
Hobbing 2008, “Uniforms without Uniformity: A Critical Look at European Standards in Policing”. In
Guild, Elspeth and Geyer, Florian (Eds.): Security versus Justice? Ashgate Publishing Company, p. 247. 119
Joined cases C-188/10 and C-189/10 Melki & Abdeli, [2010], ECLI:EU:C:2010:319, View of Advocate
General Mazák, para. 35. 120
Joined cases C-188/10 & C-189/10 Melki & Abdeli [2010] ECLI:EU:C:2010:363. [Later Melki and
Abdeli]. 121
Jorgensen – Sorensen 2012, p. 6. 122
Melki and Abdeli, para. 59. 123
Ibid. para. 75.
20
Melki and Abdeli was a significant case for two reasons. Firstly, the ECJ did not
disapprove the French legislation, which allowed police authorities to perform identity
checks on persons within a 20 kilometre radius from the French land borders.124
However,
where the ECJ started to disagree with the view of the French Government, was the fact
that when these checks were performed aboard international trains or at motorway
tollbooths, the radius could be extended up to 50 kilometres from the land borders. In its
judgment, the ECJ stated that having rules this detailed on the territorial scope of identity
checks could constitute as evidence of having an equivalent effect to border checks
prohibited by Article 21(a).125
Secondly, Member States were now required by the ECJ to
provide necessary framework for the application of Article 21 SBC in their national
legislation in order to guarantee that the practical exercise of police powers cannot have an
equivalent effect to border checks.126
After combining the case law of Melki & Abdeli and Adil, the interpretation of Article
21(a) SBC has been clarified to a point where it allows national police authorities to
exercise their powers, also for the purpose of immigration control, within a 20 kilometre
area from land borders in order to “check the identity of any person, irrespective of his
behaviour and of specific circumstances giving rise to a risk of breach of public order, in
order to ascertain whether the obligations laid down by law to hold, carry and produce
papers and documents are fulfilled”.127
Before Adil, the Member States enjoyed relatively wide discretion to decide on their
application of Article 21 SBC, but since then checks within the territory have become more
restricted in their intensity and frequency, something that will be examined closer in
Chapters 3 and 4 in relation to the application of Article 21 SBC in the Netherlands.128
Still, the most important restriction to the application of police performed identity checks is
that they should remain non-equivalent to border checks as stated in Article 21(a) SBC and
be sufficiently described in the national legislation of the relevant Member State, as
required after Melki and Abdeli. The requirement, however, is a strange feature among EU
regulations, which normally do not require national implementation, unlike directives.
124
Ibid. para. 75. 125
Ibid, para. 72. 126
Ibid, para. 75. 127
Ibid. 128
Adil, para. 88.
21
2.2.2 Temporary reintroduction of internal border control: Articles 23–26 SBC
The second exception to the abolition of internal border control provided by the SBC is the
temporary reintroduction of internal border control, as described in Articles 23–26. These
articles provide the possibility to temporarily reintroduce border checking procedures at
official border crossing points, in order to safeguard public policy, internal security or the
overall functioning of the Schengen area. The temporary reintroduction of internal border
control can be divided into three different situations that will be examined separately in
this section: foreseeable events (Article 23 SBC), unforeseeable circumstances (Article 25
SBC) and exceptional circumstances (Article 26 SBC).129
Article 23 SBC provides a general framework for the reintroduction of border control at
internal borders. The reintroduction of border control in a Member State is a powerful
measure that impacts the whole Schengen area; therefore it is limited by Article 23(1) SBC
only to situations where there is “a serious threat to public policy or internal security in a
Member State”.130
This requirement applies to all three situations where border controls
may be reintroduced.131
Even though this requirement is rather strict, it leaves the Member
States with room for interpretation, as what can or should be considered as a threat to
internal security or public policy is not further clarified.132
The Commission describes the reintroduction of border control as “an exceptional measure
of temporary character”.133
This view is supported by Article 23(2) SBC, which states that
“Border control at internal borders shall only be reintroduced as a last resort”.134
The
introduction of the last resort condition was one of the most significant changes written to
Articles 23–26 SBC when the SBC was amended following the Arab Spring situation in
2013. This addition strengthened the idea that border control should not be reintroduced
without addressing the necessity and proportionality of the measure.135
129
Epiney – Egbuna-Joss 2016, p. 103. 130
Schengen Borders Code, Article 23(1). 131
Ibid. Articles 23-26. 132
Epiney – Egbuna-Joss 2016, p. 103. 133
European Commission, COM(2016) 120 final, p. 10. 134
Schengen Borders Code, Article 23(2). 135
See Peers 2013, p. 44 and Schengen Borders Code, Article 23.
22
Article 24 SBC describes the procedure for the temporary reintroduction of border control
at internal borders. In foreseeable events, a Member State planning to reintroduce border
control is obliged to notify other Member States and the Commission of these plans
beforehand. This information shall contain the reasons for the proposed reintroduction,
scope, dates and duration of the planned measure and the measures to be taken by other
Member States, where appropriate.136
In foreseeable events, where border controls should
be able to be applied without a rush, reasons behind these reintroductions have traditionally
been related to supporting the work of police authorities and ensuring the level of security
during major sports events, high-profile political meetings and demonstrations.137
Before the 2013 SBC amendment, the timeframe between notifications by Member States
and the reintroduction of border control was considered problematic,138
as Article 24 SBC
only stated that these notifications should be delivered “as soon as possible”.139
This
hindered the purpose of providing this information, which was to allow consultation and
joint meetings between Member States and the Commission before border controls were
actually reinstated.140
In 2010, the Commission reported that the timeframe for these notifications was too short
to gain any benefits. In most cases where notifications had been delivered on time, they
had also been very general, making it hard for the Commission to properly assess the
efficiency and necessity of the planned measures. Due to these difficulties, in 2010 the
Commission had not yet issued a single opinion on the necessity and proportionality of the
reintroduction of border control in Member States, but at the same time there was no
suspicion that any Member States had so far abused their power while applying Articles 23
or 25 SBC.141
Due to these difficulties, the timeframe for providing notifications was
changed in the 2013 amendment to four weeks before the planned reintroduction.142
136
Schengen Borders Code, Article 24. 137
European Commission, COM(2011) 561 final, p. 4. 138
Report from the Commission to the European Parliament and the Council on the application of Title III
(Internal Borders) of Regulation (EC) No 562/2006 establishing a Community Code on the rules governing
the movement of persons across borders (Schengen Borders Code), COM(2010) 554 final, 13.10.2010, p. 8.
[Later European Commission, COM(2010) 554]. 139
Peers 2013, p. 125 140
Epiney – Egbuna-Joss 2016, p. 104. 141
European Commission, COM(2010) 554, p. 8. 142
Schengen Borders Code, Article 24.
23
The second situation where temporary border controls can be reintroduced is unforeseeable
circumstances and Article 25 SBC, which provides a specific procedure for cases requiring
immediate action. This option allows temporary border controls to be reintroduced
immediately, if there is a sudden threat to public policy or internal security in a Member
State.143
The application of Article 25 SBC in Spain after the Madrid bombings in 2004
clarified that the threat of terrorism fell under this category of sudden threat.144
A more
recent example of the specific procedure can be found in Norway and Sweden, where
temporary border controls were reintroduced in accordance with Article 25 SBC on 22 July
2011, few hours after bomb explosions in Oslo and shooting on the island of Utøya.145
Despite the immediate nature of the specific procedure, Member States applying Article 25
SBC are not relieved from the requirement to assess the effects of the measure (Article 23a
SBC) or to notify other Member States and the Commission (Article 24 SBC). Instead of
providing notification letters beforehand, Member States applying Article 25 SBC shall
provide this information when controls are reintroduced; including also reasoning that
justifies the use of the specific procedure.146
The obvious downside of Article 25 SBC is
that it leaves little or no room for discussing and criticising these measures prior to their
implementation.
Temporary reintroduction of border control used to be a sole privilege of the Member
States, but this was changed after the Arab Spring situation in 2011 and uncertainties in the
Middle East, when the ability of some Member States to control the external border was
questioned.147
To strengthen the position of EU institutions when applying these measures,
the 2013 SBC amendment introduced a coordinated approach to the temporary
reintroduction of border control: a newly formed Article 26 SBC, which enables the
Council to take action in exceptional circumstances.148
The introduction of Article 26 SBC clarified the direct relationship between internal and
external border control by giving the Council power to recommend (on a proposal from the
Commission) one or more Member States to reintroduce border control in exceptional
143
Ibid. Article 25. 144
Zaiotti 2011, p. 219. 145
European Commission 2017, section: Temporary Reintroduction of Border Control. 146
Schengen Borders Code, Article 25. 147
Peers 2014, p. 781. 148
European Commission, COM(2016) 120 final, p. 10.
24
circumstances, where the overall functioning of the Schengen area is at risk due to serious
deficiencies relating to external borders.149
This power was used for the first time during
the migratory crisis on 12 May 2016, when the Council recommended five Member States
to prolong their temporary border controls due to severe difficulties in ensuring the
efficiency of external border control.150
As its name suggests, temporary reintroduction of border control should remain limited in
its duration. Article 23(1) SBC states that “[t]he scope and duration of the temporary
reintroduction of border control at internal borders shall not exceed what is strictly
necessary to respond to the serious threat.”151
The allowed durations of border control at
internal borders vary depending on the situation where they were reintroduced. In
foreseeable situations, Article 23 SBC limits the duration of reintroduced border controls
to 30 days. If the serious threat to public policy or internal security persists after that, the
duration can be prolonged in periods of up to 30 days; however, the total duration shall not
exceed six months.152
In unforeseeable circumstances this duration is even shorter, as Article 25 SBC allows
Member States to reintroduce border controls for a limited period of up to 10 days, which
can be renewed in periods of up to 20 days, to the maximum duration of two months.153
Article 26 SBC introduces special circumstances, under which the maximum length of
reintroduced border control can be extended to a maximum of 2 years.154
To put these
numbers into perspective, in 2010 the Commission reported on the application of the SBC
to the European Parliament and the Council and stated that so far there had not been any
occasions where Member States were required to prolong border control reintroduced in
accordance with Articles 23 or 25 SBC.155
149
Schengen Borders Code, Article 26. 150
Council Document, 8835/16. 151
Schengen Borders Code, Article 23. 152
Ibid. 153
Ibid. Article 25. 154
Ibid. Articles 23(4) and 26. 155
European Commission, COM(2010) 554, p. 8.
25
3 PROPORTIONALITY AND INTERNAL BORDER CONTROL
3.1 General principle of proportionality
The principle of proportionality is the cornerstone principle among all the legal principles
of EU law.156
Like many other principles of EU law, it has been derived from the national
laws of Member States, from where it has been transformed and moulded by time to serve
European courts and the CJEU. At the most abstract level, the principle of proportionality
requires that the undertaken measures are proportionate to their objectives and the freedom
of individuals is not restricted beyond what is necessary to the public interest.157
The
principle of proportionality is flexible and it has a widespread area of application in the EU
law; Advocate General (AG) Jacobs has even stated that “there are few areas of
Community law, if any at all, where that [proportionality] is not relevant”.158
In the SBC, the proportionality principle is closely connected to the temporary
reintroduction of internal border control. In some situations, proportionality can also affect
the application of checks within the territory, even though proportionality is not included in
Article 21 SBC. The purpose of this Chapter is to examine how the proportionality
principle can affect the application of these two measures and to point out any problems
that might arise when measuring the proportionality of the two exceptions to the abolition
of internal border control.
In the EU law, the principle of proportionality enjoys a position of a general principle with
constitutional status. It binds both Union institutions and Member States to a point, where
legislative or administrative measures that breach the principle of proportionality are
considered to be illegal and may therefore be annulled by the Court.159
Cornerstone
principles, such as legal certainty and proportionality, are capable of overruling lesser
principles of Union law. With the support of the principle of primacy of Union law, they
are also capable of overriding the national laws of the Member States.160
156
Groussot 2006, ”General Principles of Community Law”, p. 145. 157
Tridimas 2006, p. 136. 158
C-120/94 Commission of the European Communities v Hellenic Republic, [1996], ECLI:EU:C:1996:116,
Opinion of Advocate General Jacobs, para. 70. 159
Tridimas 2006, p. 6. 160
Horspool – Humphreys 2010, ” European Union Law”, p. 142.
26
Unlike many lesser principles of EU law that might not have a written form in primary
legal sources, general principles of constitutional status are often supported by a Treaty.161
The Main Treaty provision concerning the principle of proportionality can be found in
Article 5(4) TEU, which states that “Under the principle of proportionality, the content and
form of Union action shall not exceed what is necessary to achieve the objectives of the
Treaties.”162
Based on this article, proportionality acts as a guiding principle that defines
how the Union should apply its exclusive and shared competences in a controlled manner;
if the objectives of the Treaties can be reached by multiple means, the chosen option
should always be the least restrictive.163
Proportionality has a long tradition in the EU law, starting from the times of the Coal and
Steel Community Treaty in the 1950s, and an even longer history before the Union was
founded. Proportionality plays an important part also in human rights law, and it can be
found in the EU Charter of Fundamental Rights Article 49(3), which states that “The
severity of penalties must not be disproportionate to the criminal offence.”164
The strong
position on human rights issues means that proportionality acts as one of the most
significant principles affecting immigration and asylum law, the two branches of law that
are close to the Schengen acquis.165
The widespread application and long history ensure that the nature and content of the
proportionality principle are well established and rarely subject to speculation.166
Flexibility and thoroughness are the main strengths of proportionality, but the extensive
application of proportionality also has its downsides,167
as they can easily lead into vague
situations and unsystematic application, making proportionality the most complex of the
general principles.168
Even though the principle of proportionality requires that measures
are appropriate and necessary to achieve their objects,169
there is no one uniform way for
161
Tridimas 2006, p. 6. 162
Treaty on European Union, Article 5(4). 163
Horspool – Humphreys 2010, p. 147. 164
Charter of Fundamental Rights of the European Union. Official Journal C 364, 18.12.2000, p. 1–22. 165
Hailbronner – Thym 2016, “Constitutional Framework and Principles for Interpretation ”. In Hailbronner,
Kay and Thym, Daniel (Eds.): EU Immigration and Asylum Law. Commentary, 2nd
edition, p. 13. 166
Rosas - Armati 2016, p. 186. 167
Tridimas 2006, p. 173. 168
Groussot 2006, p. 145. 169
Tridimas 2006, p. 138.
27
measuring proportionality that would apply to all situations where different interests might
require protection.170
The case law of the CJEU does not offer a clear answer to this question. A traditional
method for the Court to test the proportionality of a measure has included dividing
proportionality into two parts: suitability and necessity.171
In this two part test, suitability
refers to the connection between the means and the end objective. In order to pass the
suitability test, the means of the measure should be considered appropriate for reaching the
end objective. The second part of the test is estimating the necessity of the measure, which
refers to determining whether the means are necessary and therefore legitimate in order to
reach the objectives being pursued. This includes examining possible alternative measures
that could be used to reach the same objectives with less restrictive means.172
This traditional two part test was developed further in the case Fedesa (C-33/88),173
which
introduced that the proportionality of a measure could be tested with a higher standard by
using a three-pronged test; introducing proportionality stricto sensu (in a narrow sense), as
the third element.174
This three part proportionality test was inspired by German law,
where proportionality consists of suitability, necessity and reasonableness, referring to
proportionality in a narrower stance. Reasonableness, or proportionality stricto sensu,
requires that if the means are causing disadvantages to the affected parties, these negative
effects must be in proportion to the advantages that the general population will gain from
the measure.175
In Fedesa, it was argued that Directive 88/146/EEC176
dealing with hormonal substances in
livestock farming infringed upon proportionality in all of these three respects. In its
assessment, the ECJ first defined that the directive in question was not considered suitable,
because it was impossible to apply in practice and it led to negative side effects; such as
the creation of a dangerous black market. Secondly, the measure was not considered
170
Ibid. p. 173. 171
Chalmers, Davies and Monti 2014, p. 400. 172
Groussot 2006, pp. 146-147. 173
C-331/88 The Queen v Minister of Agriculture, Fisheries and Food and Secretary of State for Health, ex
parte: Fedesa and others, [1988], ECLI:EU:C:1990:391.[Later Fedesa]. 174
Groussot 2006, p. 146. 175
Robbers 2003, ”An Introduction to German Law”, p. 54. 176
Council Directive 88/146/EEC of 7 March 1988 prohibiting the use in livestock farming of certain
substances having a hormonal action. Official Journal L 70, 16.3.1988, pp. 16–18.
28
necessary, because there were less restrictive alternatives, such as spreading information.
Thirdly, the directive at issue caused disadvantages and financial losses to the parties
involved that were not proportionate to the aims pursued.177
This connection between
financial losses and proportionality in a narrow sense was addressed clearly by AG Mischo
as “weighing of damage caused to individual rights against the benefits accruing to the
general interest”.178
Although Fedesa introduced proportionality stricto sensu as the third element for
measuring proportionality, the ECJ is not obliged to apply this three-pronged method in its
judgments,179
as it has been pointed out by AG van Gerven in the case Conforama (C-
312/89).180
However, if the three-pronged proportionality test is chosen, but the measure in
question fails to pass the first part of the test, for example the element of suitability, then
no further testing is required to declare the measure disproportionate, as noted by AG
Fennelly in the case Tobacco Advertising (C-376/98).181
In addition, cases such as Stoke-
on-Trent (C-169/91)182
have shown that in some cases only one element from the three-
fold test can be selected for inspection, making testing proportionality even more flexible
for the CJEU.183
Article 45(3) TFEU states that the free movement of persons can be a limited on the
grounds of public policy, public security or public health.184
In these situations,
proportionality plays an important part in protecting the free market from unnecessary
restrictions created by the Member States. When determining the proportionality of such
measures, the CJEU tends to be stricter than when testing the necessity of Union
177
Fedesa, para 12. 178
C-331/88 The Queen v Minister of Agriculture, Fisheries and Food and Secretary of State for Health, ex
parte: Fedesa and others, [1988], ECLI:EU:C:1990:391, Opinion of Advocate General Mischo, para. 42. 179
Groussot 2006, p. 149. 180
See C-312/89 & Case C-332/89 Joined Opinions of Advocate General van Gerven, [1990], para. 14,
where AG van Gerven takes the view that “that the absence of any reference to the criterion of
proportionality---is not of fundamental importance and that the reason for the omission lay in the specific
circumstances of the case, from which it was clear that any obstacles which might be created were not
particularly serious.” 181
C-376/98 Federal Republic of Germany v European Parliament and Council of the European Union,
[2000], ECLI:EU:C:2000:324. 182
C-169/91 Council of the City of Stoke-on-Trent and Norwich City Council v B & Q plc.,[1992],
ECLI:EU:C:1992:519. 183
C-169/91 Council of the City of Stoke-on-Trent and Norwich City Council v B & Q plc., [1992],
ECLI:EU:C:1992:519, Opinion of Advocate General Fennelly, para. 149. 184
Treaty on the Functioning of the European Union, Article 45(3).
29
measures.185
However, the Court may be more inclined to approve restrictions to the free
movement created by Member States, if the measures have been justified with certain types
of sensitive interests; namely public policy, public morality or public security.186
Public security holds a special importance as a ground for justification concerning
restrictions to the freedom of movement, as preserving it remains one of the core functions
of the Member States. This means that in a situation where there is a genuine risk to public
security, a Member State has a strong authority to defend it.187
The reintroduction of border
control at internal borders seems to fall under the category of sensitive national interests, as
Article 23 SBC states that border controls may be reintroduced where there is a “serious
threat to public policy or internal security in a Member State”.188
Groussot has stated that “it is a mistake to think that the Member States measures are
always subject to a uniform and strict review”.189
The case law of the CJEU has shown that
there is no uniform way for testing the proportionality of Union or national measures and
that testing proportionality can be flexible but unreliable at the same time. Measuring
proportionality can be scaled according to the case at hand, and it can be applied with
varying extent depending on multiple factors.190
Despite these obscurities, proportionality
remains the most important tool for drawing the line between lawful and unlawful
impediments to free movement.191
3.2 Proportionality in the Schengen Borders Code
Checks within the territory and the temporary reintroduction of border control are
measures that can both create limitations to the free movement of persons. The former
cannot create major restrictions to the free movement between Member States, but it can
limit a person‟s freedom to move in the border areas by creating a requirement to hold or
carry documents or an obligation to present them to authorities when asked.192
The latter is
185
Tridimas 2006, p. 193. 186
Groussot 2006, p. 158. 187
Tridimas 2006, p. 226. 188
Schengen Borders Code, Article 23. 189
Groussot 2006, p. 158. 190
Ibid. p. 152. 191
Tridimas 2006, p. 207. 192
Van der Woude 2015.
30
clear restriction to the free movement of persons, as the objective of temporary
reintroduction of border control is to reinstate border checking procedures at internal
borders.193
Because both measures can create restrictions to one of the four freedoms of the
EU, it is presumable that the principle of proportionality is connected to their application.
The principle of proportionality is mentioned multiple times in the SBC. The human rights
side of the proportionality principle, as part of border checking procedures, is taken into
account in the opening recital 7 SBC, which states that border control “should be carried
out in a professional and respectful manner and be proportionate to the objectives
pursued.”194
Proportionality and human rights are also connected in Article 6 SBC, which
states that border guards are obliged to fully respect human dignity in their duties and that
these duties shall be proportionate to the objectives pursued.195
The proportionality principle is also mentioned in recital 19 SBC, which states that
establishing rules for the movement of persons across borders is better achieved at
Community level, rather than by the Member States. This is why the Community has the
power to adopt measures in accordance with the principles of subsidiarity and
proportionality as long as these measures do not cross what is necessary in order to achieve
its objective.196
3.2.1 Proportionality in temporary reintroduction of border control
Most of the mentions related to the principle of proportionality in the SBC are connected to
the temporary reintroduction of border control. The requirement to respect proportionality
is established in recital 15 SBC, which states that the conditions and procedure for the
temporary reintroduction of border control should be laid down by law “to ensure that any
such measure is exceptional and that the principle of proportionality is respected.”197
The
requirement to respect proportionality applies to all three situations where temporary
border controls can be reintroduced described in Chapter 2: foreseeable events (Article 23
193
European Commission, COM(2016) 120 final, p. 4. 194
Schengen Borders Code, recital 7. 195
Epiney – Egbuna-Joss 2016, p. 86. 196
Schengen Borders Code, recital 19. 197
Ibid. recital 15.
31
SBC), unforeseeable circumstances (Article 25 SBC) and exceptional circumstances
(Article 26 SBC).
As mentioned in Chapter 2, the primary requirement for reintroducing border control under
any of the three circumstances is “a serious threat to public policy or internal security in a
Member State”.198
In addition, Article 23 SBC refers to the requirement to respect
proportionality by mentioning that the scope and duration of these measures “shall not
exceed what is strictly necessary to respond to the serious threat.”199
This has been
interpreted by Member States in a way that these measures should not last any longer than
necessary and that the actions taken should not be any more restrictive than required by the
threat.200
In addition to the primary conditions set out in Article 23 SBC, Article 23a introduces
further criteria that need to be fulfilled in a situation where a Member State wishes to
reintroduce border control or to prolong a measure that has been applied in accordance
with Article 23 SBC (foreseeable events) or Article 25 SBC (unforeseeable
circumstances).201
The first criteria is that a Member State shall “assess the extent to which
such a measure is likely to adequately remedy the threat to public policy or internal
security”,202
which refers to assessing the necessity of the measure and whether it is likely
to address the threat at hand.203
The second requirement is that the Member State shall
“assess the proportionality of the measure in relation to that threat.”204
Simply put, the requirement to assess the proportionality of the measure means ensuring
that the previously mentioned scope and duration of the temporary reintroduction of border
control do not exceed what is strictly necessary.205
To further clarify what assessing the
necessity and proportionality means in this context, Article 23a paragraphs (a) and (b)
describe what should be taken into consideration, in particular, when making these
assessments. The first thing to consider is “the likely impact of any threats to its public
policy or internal security, including following terrorist incidents or threats and including
198
Schengen Borders Code, Article 23. 199
Ibid. 200
Jorgensen – Sorensen 2012, p. 8. 201
Schengen Borders Code, Article 23a. 202
Ibid. 203
Epiney – Egbuna-Joss 2016, p. 103. 204
Schengen Borders Code, Article 23a. 205
Jorgensen – Sorensen 2012, p. 8.
32
those posed by organised crime”.206
Secondly, this assessment should take into account
“the likely impact of such a measure on free movement of persons within the area without
internal border control.”207
When the 2013 SBC amendment was being drafted, it was proposed that this criterion
would also include taking into account any technical or financial support measures that
could be or have been resorted at national or Union level, including support from Union
bodies such as Frontex or Europol.208
It was also suggested that the Member States should
consider “the current and likely future impact of any serious deficiencies related to external
border control or return procedures identified by Schengen evaluations”209
; these two
criteria, however, did not make it to the final version of the amended SBC.
In foreseeable events, the requirement to assess the necessity and proportionality of the
measure is closely connected to the obligation to provide information about the planned
reintroduction. As it was mentioned in Chapter 2, Article 24(1) SBC requires the Member
State wishing to reintroduce border control to notify other Member States and the
Commission about the reasons, scope, duration and scale of the planned measure 4 weeks
beforehand.210
Therefore, in foreseeable events, when there is no need to rush the
reintroduction of border control, Member States are required to provide vast amounts of
information about the planned measure before the actual reintroduction.
The requirement to respect the principle of proportionality also applies to Article 25 SBC.
How proportionality should be taken into consideration in unforeseeable circumstances,
however, is not as clear as in foreseeable events. The rules for applying Article 25 SBC do
not mention proportionality directly. Instead, it is stated that the Member States applying
Article 25 “shall supply the information referred to in Article 24(1), including the reasons
that justify the use of the procedure set out in this Article.”211
As Article 24(1) SBC did not
include assessing proportionality, the only requirement that could refer to assessing
proportionality when applying Article 25 SBC are the reasons that justify the use of the
procedure, which are not clarified further.
206
Schengen Borders Code, Article 23a, paragraph (a). 207
Ibid. 208
Peers 2013, pp. 32-33. 209
European Commission, COM(2011) 561 final, p. 6. 210
Schengen Borders Code, Article 24. 211
Ibid. Article 25.
33
The requirement to respect the proportionality principle is not mentioned in Article 25
SBC directly until a Member State wishes to prolong the border controls reintroduced in
accordance with it. Then the Member State in question “shall take into account the criteria
referred to in Article 23a, including an updated assessment of the necessity and the
proportionality of the measure, and shall take into account any new elements.”212
However,
the wording “updated assessment” implies that the initial justification of the specific
procedure should also contain some kind of an assessment concerning proportionality.
The requirement to assess proportionality also applies to exceptional circumstances and
Article 26 SBC. If the Council recommends one or more Member States to reintroduce
border control based on serious deficiencies related to the management of the external
borders, the responsibility to assess the proportionality of these measures belongs to the
Council. For these situations, Article 26a SBC provides criteria similar to foreseeable
events that should be fulfilled in order to ensure that the proportionality principle is taken
into account.213
This criteria in Article 26a SBC includes assessing the likely impact of the reintroduction
procedure on the free movement of persons and the two considerations that were left
outside Article 23a SBC (foreseeable events) in the 2013 amendment: assessing the
availability of alternative technical or financial support measures that could be resorted at
national or Union level and the impact of serious deficiencies relating to external border
control that could constitute a serious threat to public policy or internal security in the
Schengen area.214
The responsibility to make these assessments does not solely rely on the
Council, as they should be based on information provided by the Member States concerned
and the Commission.215
The notification letters provided by Member States in foreseeable events and unforeseeable
circumstances, containing information referred to in Article 24(1) and assessments on the
necessity and proportionality, are subject to review by other Member States and the
212
Ibid. 213
Ibid. Article 26. 214
See Peers 2013, p. 39 and Epiney – Egbuna-Joss 2016, p. 104. 215
Schengen Borders Code, Article 26.
34
Commission. Some of this information can be classified to other Member States, but the
Commission should always have full access to it.216
In addition to shortening the timeframe when notifications should be provided, the 2013
SBC amendment gave the Commission the power to request additional information from
the Member States if necessary.217
If the Commission has concerns regarding the necessity
or proportionality of the planned measure, or consultation on some aspect of the
notification is considered appropriate, it shall issue an opinion to that effect.218
This power
has been used during the migratory crisis on 23 October 2015, when the Commission
delivered its opinion regarding the reintroduction of border control in Germany and
Austria,219
which will be examined closer in Chapter 4.
3.2.2 Proportionality in checks within the territory
The requirement to respect the principle of proportionality is not present in checks within
the territory in the same way as it is present in the temporary reintroduction of border
control. In fact, the proportionality principle is not mentioned once in Article 21 SBC.
This, however, does not mean that the proportionality principle could not affect the
application of checks within the territory, as this section aims to prove. The absence of the
proportionality principle in checks within the territory can be explained with the different
nature of the measure if compared to the temporary reintroduction of border control, as the
purpose of Article 21 SBC is not to regain the control of internal borders in predetermined
situations, but to compensate for the lack of control at internal borders when border
controls were lifted.220
Instead of creating an obligation for the Member States to assess the proportionality of the
measures when applying Article 21 SBC, the exercise of police powers in border areas is
limited in other ways, as examined in Chapter 2. Prohibiting police measures from having
an equivalent effect to border checks is the most important restriction provided by Article
216
Ibid. Article 24. 217
See Peers 2013, p. 37 and Schengen Borders Code, Article 24. 218
Schengen Borders Code, Article 24(4). 219
European Commission, Commission opinion on the on the necessity and proportionality of the controls at
internal borders reintroduced by Germany and Austria, C(2015) 7100. 23.10.2015. [Later European
Commission, C(2015) 7100 final]. 220
Epiney – Egbuna-Joss 2016, p. 96.
35
21(a) SBC.221
Although, the case law of the CJEU has demonstrated that sometimes
determining what can be considered as “equivalent” is rather complicated, strengthening
the fearful presumptions of the EU legislator when the SBC was drafted, concerning the
blurriness in the relationship between internal border controls and border checks.222
Even though Article 21(a) SBC introduced the 4-part list of measures that may not, in
particular, be considered equivalent, cases such as Melki and Abdeli and Adil have
demonstrated that this list is not exhaustive and there are many ways to interpret it. The
attempts of the CJEU to standardize the application of Article 21(a) in Melki and Abdeli
and Adil have clarified the interpretation of Article 21(a), but at the same time they have
extended the applicability of police performed identity checks.223
Attaching new objectives under Article 21 SBC, such as immigration control in case Adil,
has given the Member States a growingly flexible tool for controlling persons‟ movements
in the border areas.224
The fact that Member States now have extensive amounts of
discretion on how to perform SBC proof identity checks that are not connected to the
temporary reintroduction of border control, has raised concerns. These concerns should be
taken into consideration, especially in times when negative attitudes towards migration in
Europe are on the rise.225
Since Adil, more Member States have started looking for alternative ways to maintain
control over their internal borders without resorting to the temporary reintroduction of
border control. This has increased the popularity of checks within the territory as a form of
control that has a lighter impact on the Schengen system. In the year 2015, France,
Germany, Latvia, Austria, Italy and the Netherlands were implementing some kind of
police performed identity checks in their border areas. Due to the given flexibility, the
types of these checks vary, as some Member States perform them in more detail than
others.226
221
Schengen Borders Code, Article 21. 222
Guild, Brouwer, Groenendijk and Carrera 2015, p. 16. 223
Epiney – Egbuna-Joss 2016, p. 96. 224
Adil. 225
Van der Woude - Van Berlo 2015,”Crimmigration at the Internal Borders of Europe? Examining the
Schengen Governance Package.” p. 77. 226
Ibid. pp. 77-78.
36
Germany is a good example of how the application of Article 21 SBC varies between
Member States, even after the two landmark judgments of the ECJ. In Germany, police
authorities are allowed to carry out identity checks on persons within 30 kilometre radius
from land borders.227
This border area is significantly larger than in France and the
Netherlands, where it has been limited to 20 kilometres following the judgment of Melki
and Abdeli, which clarified that the 20 kilometre radius used by the French authorities was
considered reasonable, but a larger 50 kilometre radius was considered to breach Article
21(a) SBC, as the territorial scope became too specified.228
This larger territorial scope
used in Germany is currently questioned as one of the preliminary questions in the pending
CJEU case of Amtsgericht Kehl v A (C-9/16).229
The problem with the current development of Article 21 SBC and the lack of
standardization is that police performed identity checks are slowly taking steps towards
actual border checks carried out by border guards. In some cases, the line between the
temporary reintroduction of border control and checks within the territory has been blurred
to a point where a question can be asked: “what exactly is the difference between police
checks within the border area and internal border controls”?230
If police performed identity
checks under Article 21 SBC are in fact starting to resemble the temporary reintroduction
of border control, then another question which should be asked is whether the principle of
proportionality should also be taken into closer consideration when applying Article 21
SBC.
These two questions have become topical especially in the Netherlands, which acts as a
trendsetter when it comes to the application of Article 21 SBC among the Member
States.231
Checks within the territory in the Netherlands are carried out in the form of
Mobile Security Monitor (MSM) introduced in 1994, with a purpose of limiting
illegitimate entry and stay of foreigners. MSM checks are carried out by the Royal
Netherlands Marechaussee, which acts as Border Police. Since the introduction of MSM,
227
Ibid. p. 77. 228
Melki and Abdeli, para. 72. 229
C-9/16, Request for a preliminary ruling in Amtsgericht Kehl v A lodged on 7.1.2016. Official Journal C
136, 18.4.2016, pp. 8-9. 230
Guild, Brouwer, Groenendijk and Carrera 2015, p. 16. 231
Van der Woude 2015.
37
their scope has expanded to fight different types of cross-border crime; such as identity
fraud and smuggling.232
The Netherlands is one of the few Member States that took action following the ECJ
judgment of Melki and Abdeli and updated their national legislation according to the
recommendation of the Court to guarantee that the MSM remained non-equivalent to
border checks.233
After these amendments, section 50(1) of the Netherlands Aliens Act of
2000 combined with the Netherlands Aliens Decree allows the Border Police to stop any
person based on reasonable suspicion, in order to check their identity, nationality or
residence status.234
MSM checks can be performed to any persons entering the Netherlands
territory by plane, train or vehicle in a border area reaching 20 kilometres from land
borders, similar to the territorial scope described in Melki and Abdeli.235
Before 2010, MSM checks could be performed widely without major restrictions on roads,
railways and airports, but after Melki and Abdeli they were limited to 6 hours a day with a
maximum of 90 hours a month.236
The amended legislation concerning the application of
the MSM was reviewed by the ECJ in 2012 in the Dutch originated judgment of Adil,
which clarified these amendments sufficient and that the national legislation in the
Netherlands was detailed enough to guarantee that the practical exercise of MSM checks
remained non-equivalent to border checks.237
The judgment of Adil and acceptance of the CJEU towards Dutch national legislation
encouraged the Netherlands to push even further amendments into their application of
Article 21(a) SBC. During 2014, the frequency of MSM checks was increased. In July
2014, a new Article 4.17a was introduced into the Netherlands Aliens Decree, enabling
intensifying MSM checks temporarily, in a situation where there is solid proof of a
significant increase in illegal border crossing that can lead into increase in illegal
residence. This new rule enabled the doubling of the previously mentioned limitations.
232
Van der Woude - Van Berlo 2015, p. 77. 233
Van der Woude 2015. 234
Netherlands Aliens Act, Section 50(1). 235
Van der Woude - Van Berlo 2015, p. 77. 236
Van der Woude 2015. 237
Adil, para. 39.
38
MSM checks could now be carried out up to 12 hours a day and 180 hours a month on all
land, air and sea borders.238
The possibility to intensify MSM controls under special circumstances gave the
Netherlands a powerful new tool to control migration flows into its territory and created a
situation where the law in practice was becoming very different from the law in books, if
looking solely at the Article 21 in the SBC.239
Despite these significant changes, this new
legislation did not oblige the Netherlands to assess the proportionality of the intensifying
measure, as it has never been part of Article 21 SBC. The omission of the principle of
proportionality and the vagueness of the conditions that were required to be fulfilled in
order to apply intensified MSM controls would prove to be problematic later during the
migratory crisis of 2015 which will be examined in the following Chapter 4.
238
Van der Woude 2015. 239
Ibid.
39
4 MANAGING INTERNAL BORDERS IN TIMES OF CRISIS
4.1 Effects of the migratory crisis
The migratory crisis that began in 2015 when over 1.82 million illegal border-crossings
were detected along the external Schengen borders, over 6 times more than in the previous
year, is the main reason for the recent limitations to the free movement within the
Schengen area and the tightening control of the internal borders.240
Despite recent crises
with shared similarities, such as the Arab Spring situation in 2011, migratory flows of this
scale have not been seen in Europe since the Second World War, creating an unforeseen
challenge for the modern Schengen system.241
Most of the illegal border crossings in 2015 were detected on 3 main routes: Western
Balkan, Eastern Mediterranean and Central Mediterranean routes, consisting mainly of
Syrian, Afghan and Iraqi nationals.242
Greece and Italy were particularly troubled, as the
Mediterranean border between Turkey and Greece was a major chokepoint for migrants
making their way to Europe.243
The European Asylum Support Office reported a total of
1.35 million registered asylum applications in 2015, the highest number since the
collection of this data had begun in 2008.244
This was a challenge for the new EU asylum
acquis, which entered into force in July 2015.245
The basic rules for receiving and processing asylum seekers can be found in the Dublin III
Regulation, under which the Member State of first entry had the responsibility to register
and accommodate asylum applicants entering the EU.246
Attempts to register and
accommodate all of the arriving migrants in Greece and Italy resulted in failure, leading
into a situation where the rules of the Dublin Regulation could no longer be obeyed.
Because of these failures, separation between refugees seeking for international protection
and economic migrants looking for better living conditions could no longer be made, also
allowing unwanted persons to enter Europe, increasing the threat of terrorism. 247
240
Frontex 2016, p. 16. 241
European Commission, COM(2016) 120 final, p. 2. 242
Frontex 2016, p. 16. 243
Ibid. p. 14. 244
Ibid. p. 30. 245
Ibid., p. 31. 246
Dublin Regulation. 247
Kaca 2016, p. 2
40
The collapse of the asylum system in the southern Member States of first entry created a
requirement to give away the Dublin Regulation rules, and the Commission introduced a
new approach to the situation, allowing the relocation of 160,000 asylum applicants
staying in Italy and Greece. Early relocations struggled as Member States did not share a
common consensus on how the crisis should be solved. Some Member States started
favouring their national interests over harmony in the EU, which fuelled political debate
over the issue.248
The beginning of the migratory crisis pressured the external border and asylum systems of
the Member States of first entry. When the management of the external borders and
receiving migrants started to fail, this pressure shifted into massive secondary movements
inside the Schengen area, challenging the management of internal borders as well. Because
many of the migrants were left unregistered, instead of having their asylum applications
processed by the Member State of first entry under the Dublin Regulation rules, they could
continue their way deeper into Europe and towards the Member State of their choice.249
This resulted in about a million migrants travelling through Europe without proper
travelling documents, mostly towards Germany, causing chaos and leaving the Member
States in their way puzzled over how to deal with this situation.250
During 2015, Member States applied different measures to control secondary movements
into their territories. In Hungary, a fence was raised on the border with Serbia, also acting
as the external border of the Schengen area. Raising a wall with a non-EU state was not
strictly contrary to EU law, but it raised questions about the proportionality of measure and
internationally guaranteed fundamental rights of the refugees, particularly the principle of
non-refoulement.251
The principle of non-refoulement is closely connected to the measures that create
limitations to the freedom of movement, and balancing it has been required during the
migratory crisis of 2015. The non-refoulement principle is internationally regarded as one
of the cornerstone principles of refugee protection, as it prevents refugees from being
248
Greenhill 2016, p. 317 249
European Commission, COM(2015) 675, p.5. 250
Frontex 2016, p. 32. 251
European Commission, COM(2015) 675, p. 2.
41
turned away or returned to areas where their lives or freedom could be threatened.252
Despite the good intensions of non-refoulement, its downside on a global scale has been
that many states have experienced it as a back door mechanism that allows any migrant to
become an asylum seeker, leaving little or no power for the states to decide who is eligible
for asylum.
The desire to maintain state sovereignty in deciding who is allowed to enter and who is
not, coupled with the fact that returning rejected asylum seekers can turn out to be a
difficult process, due to the lack of nationality identifications and difficulties in finding
countries that would be willing to accept them, has led to a situation where states would
rather prevent migrants from reaching their territory in the first place.253
4.2 Reintroduction of temporary border control in 2015
Since the beginning of the migratory crisis in 2015, a total of eight Member States have
reintroduced temporary border controls at their internal borders, for variable periods of
time, in response to a serious threat to public policy or internal security created by
secondary movements of irregular migrants: Germany, Austria, Hungary, Slovenia,
Sweden, Norway, Denmark and Belgium.254
During these reintroductions, all three situations where temporary border controls can be
applied have been represented. In all of the eight Member States the initial decisions to
reintroduce internal border control were made in accordance with unforeseeable
circumstances and Article 25 SBC. As the situation developed, some of the Member States
prolonged their border controls based on foreseeable events and Article 23 SBC.255
Finally,
Article 26 SBC was applied by the Council in May 2016 to recommend Germany, Austria,
Sweden, Norway and Denmark to continue border controls at their internal borders based
on exceptional circumstances putting the overall functioning of the Schengen area at
risk.256
252
See Gammeltoft-Hansen 2011, ”Access to Asylum”, p. 44 and The UN Refugee Agency, Note on Non-
Refoulement (Submitted by the High Commissioner), EC/SCP/2, 23.8.1977. 253
Gammeltoft-Hansen 2011, p. 15. 254
European Commission 2017, section: Temporary Reintroduction of Border Control. 255
European Commission, COM(2016) 120 final, p. 10. 256
Council Document, 8835/16, p. 4.
42
Germany was the first Member State to reintroduce temporary border controls on 13
September 2015, taking effect immediately on all land, air and sea borders.257
On the
following day, the Commission received a letter from the German federal minister of
interior Thomas de Maizière, concerning the report on the measure and containing
reasoning that justified the use of the immediate procedure, as required by Article 25 SBC.
In this letter, de Maizière stated that the uncontrolled flow of TCNs into German territory
had made it impossible to determine who was entering and staying in Germany, to a point
where any further arrivals were considered to endanger the public order and internal
security. In order to respond to this threat, the decision to apply border controls at borders
was made after careful consideration and given the lack of alternatives.258
Border controls in Germany were focused on the German-Austrian land border. To
emphasize the exceptionality of this measure, de Maizière stated that “[t]hese border
controls will be only as extensive and intense as needed to ensure security.”259
The last part
of this letter emphasized that, despite the challenging situation in the southern Member
States, the Dublin III Regulation was still intact and Member States of first entry were
responsible for registering and processing any asylum seekers entering their territory. The
German view was that asylum seekers should not expect to have the possibility to choose
which Member State they wished to seek protection from and Germany should not be held
responsible for the large groups of migrants who have illegally entered its territory.260
Two days after the application of Article 25 SBC in Germany, Austria also informed that it
would be reintroducing temporary border controls beginning from 16 September 2015. The
Austrian measure was justified in a manner similar to Germany: the application of Article
25 SBC was seen necessary in order to “prevent a threat to public order and internal
security and a continuous overburdening of the police, emergency services and public
infrastructure, and to allow the Austrian Federal Police bodies to perform their duties
257
Guild, Brouwer, Groenendijk and Carrera 2015, p. 5. 258
Temporary reintroduction of border controls at the German internal borders in accordance with Article 25
of Regulation (EC) No 562/2006 establishing a Community Code on the rules governing the movement of
persons across borders (Schengen Borders Code), 11986/15, 14.9.2015, p. 2. 259
Ibid. 260
Ibid. pp. 2-3.
43
thoroughly at the internal borders.”261
In addition, the Austrian notification included an
almost word-for-word copy from Germany‟s note, regarding the role and state of Dublin
III Regulation stating that, like Germany, Austria should not be held responsible for the
large majority of illegal immigrants in its territory.262
Slovenia and Hungary were the next Member States to apply Article 25 SBC on 17
September 2015. It appeared that the initial reintroduction of border control in Germany
had started a domino effect that was spreading fast through its neighbouring Member
States in Central Europe.263
The influence of the neighbouring Member States could be
noticed in the notifications provided to the Commission, as Slovenian delegation justified
the application of Article 25 SBC with “uncontrollable migration flows in the region,
coupled with the measures recently adopted by the neighbouring countries”.264
A similar domino effect of a smaller scale could be noticed in Northern Europe, when
Sweden reintroduced border controls on 12 November, followed by Norway on 26
November 2015. This was not the first time Norway and Sweden followed each other‟s
example when reintroducing temporary border controls, as noted in Chapter 2, as a similar
effect was seen following the bomb explosion in Oslo and shooting on the island of Utøya
on 22 July 2011, when Sweden applied Article 25 SBC only five and a half hours after
Norway.265
Border controls in Sweden and Norway were justified in a manner similar to preceding
Member States.266
In addition, the Swedish delegation was concerned that mixed migratory
flows could include victims of human trafficking who were not seeking to legalize their
stay in Sweden and therefore constituted as “easy targets for perpetrators ready to abuse
261
Temporary reintroduction of border controls at the Austrian internal borders in accordance with Article 25
of Regulation (EC) No 562/2006 establishing a Community Code on the rules governing the movement of
persons across borders (Schengen Borders Code), 12110/15, 17.9.2015. 262
Council Document 12110/15. 263
Kaca 2016, p. 4. 264
Temporary reintroduction of border controls at the Slovenian internal borders in accordance with Article
25 of Regulation (EC) No 562/2006 establishing a Community Code on the rules governing the movement of
persons across borders (Schengen Borders Code), 12111/15, 17.9.2015. 265
European Commission 2017, section: Temporary Reintroduction of Border Control. 266
Prolongation of the temporary reintroduction of border controls at the Norwegian internal borders in
accordance with Article 25 of Regulation (EC) 562/2006 establishing a Community Code on the rules
governing the movement of persons across borders (Schengen Borders Code), 14996/15, 4.12.2015.
44
their vulnerable situation.”267
This presumption was justifiable, because economic migrants
have been seen as potential victims for human smugglers.268
This addition strengthened the
argument to introduce border controls, as human trafficking has been labelled as a form of
unauthorized immigration and criminalized in the EU since 1997.269
In early 2016, internal border controls were also introduced in Denmark on 4 January,
focusing on ferries and the land border with Germany, and in Belgium on 23 February,270
further strengthening the theory that border controls were spreading through Europe from
one neighbouring Member State to another. It should be noted that during this time period,
internal border controls were reintroduced also in Malta and France, but these measures
were not solely based on the migratory crisis, but on the threat of terrorism and smuggling
of illegal immigrants. In France, border controls were introduced on 13 November 2015
for the duration of the UN Conference on Climate Change, but they were prolonged due to
the terrorist attacks in Paris on the same day, leading France into an emergency state that is
still continuing in July 2017.271
The notification letters provided to the Commission by the eight Member States were
relatively short in length, similar in content and had no direct mentions related to the
principle of proportionality.272
As the application of Article 25 SBC in unforeseeable
circumstances did not yet require fully assessing the proportionality of the measures, the
most significant content of these letters were the reasons justifying the use of the specific
procedure for cases requiring immediate action.
Following the example set by the German delegation, all eight Member States justified
their measures on the massive and uncontrolled flow of TCNs into their territory, forcing
the reintroduction of border control in order to prevent further serious threats to public
267
Temporary reintroduction of border controls at the Swedish internal borders in accordance with Article 23
and 25 of Regulation (EC) 562/2006 establishing a Community Code on the rules governing the movement
of persons across border (Schengen Borders Code), 14047/15, 12.11.2015. 268
McCreight 2006, “Smuggling of Migrants, Trafficking in Human Beings and Irregular Migration on a
Comparative Perspective”, European Law Journal (2006), Vol 12, No. 1, p. 107. 269
Joint Action of 24 February 1997 adopted by the Council on the basis of Article K.3 of the Treaty on
European Union concerning action to combat trafficking in human beings and sexual exploitation of children.
Official Journal L 63, 4.3.1997, pp. 2-6. 270
European Commission 2017, section: Temporary Reintroduction of Border Control. 271
See European Commission, COM(2016) 120 final, p. 10 and European Commission 2017, section:
Temporary Reintroduction of Border Control. 272
See the above-mentioned notification letters of Member States.
45
order and internal security.273 The fact that this large number of migrants was used as the
main reason for justifying these measures was surprising, because when the SBC was
amended in 2013, the European Parliament and the Council stated that “Migration and the
crossing of external borders by a large number of third-country nationals should not, per
se, be considered to be a threat to public policy or internal security”.274
Based on recital 5 of the amending SBC regulation of 2013, actions taken by the Member
States during the migratory crisis of 2015 were clearly contrary to the will of the EU
legislator presented only two years earlier. However, at this point when border controls
were reintroduced in accordance with the specific procedure for cases requiring immediate
action described in Article 25 SBC, there was little the Commission or other Member
States could do, as there were no opportunities for discussing or criticizing the measures in
joint meetings.
4.2.1 Prolongation of temporary border controls
Because temporary border controls in the eight Member States were reintroduced in
accordance with Article 25 SBC, their initial duration was limited to only 10 days. As the
uncertain situation at the external and internal borders continued, it was clear that border
controls would need to be prolonged to safeguard public policy and internal security. These
prolongations would need to be made either under the specific procedure described in
Article 25 SBC, limiting the maximum duration of the measures to two months, or under
Article 23 SBC, which allowed carrying out controls up to six months.
As the initiators of the so called domino effect of internal border control, Germany and
Austria were the first Member States where the prolongation of internal border control
became topical. In both Germany and Austria, border controls were prolonged twice in line
with Article 25 SBC for the duration of 20 days, after which the authorities of both
273
Ibid. 274
Regulation (EU) No 1051/2013 of the European Parliament and the Council of 22 October 2013 amending
Regulation (EC) No 562/2006 in order to provide for common rules on the temporary reintroduction of
border control at internal borders in exceptional circumstances. Official Journal L 295/1, 6.11.2013, recital 5.
[Later the SBC amendment].
46
Member States informed that prolongations were intended to continue under Articles 23
and 24 SBC, if the situation at the borders did not change.275
As mentioned in Chapter 3, the reintroduction of border control in accordance with Article
25 SBC obliged the eight Member States to provide information referred to in Article 24(1)
SBC (reasons, scope, names of affected border crossing-points and planned duration) and
reasons justifying the use of the specific procedure. This, however, did not include
assessing the proportionality of the measure, which was reserved for situations when these
controls were prolonged. Now that Germany and Austria wished to continue border
controls in accordance with Article 25 SBC, they were required to take into account the
full criteria referred to in Article 23a, including the detailed proportionality assessment.276
Now, as Germany and Austria announced their plans to prolong controls in accordance
with Article 25 SBC, the Commission had its first possibility to address the necessity and
proportionality of the measures. The starting point was that the Commission was not
pleased with the quality and coverage of the initial notification letters. A request was made
that Germany and Austria would need to provide additional information about their
measures, containing figures that would better demonstrate their necessity. The
Commission was especially interested in the numbers of TCNs entering the Member
States‟ territories via the relevant border sections targeted by temporary border controls
and whether this data could be used to pinpoint threats to public policy or internal
security.277
The reply of the German delegation stated that so far in October 2015, some 527,000
TCNs had been registered as asylum seekers, which was twice as much as in the whole
previous year. Thousands of new migrants, not yet screened by any other Member State,
continued to enter Germany through the German-Austrian border daily, which was seen as
a sufficient reason to focus border controls on this section of the border.278
In its defence,
Germany had been overloaded with migrants even before border controls were introduced,
due to its policy of open borders in the beginning of the crisis. Estimates of people who
275
European Commission, C(2015) 7100 final, pp. 3-5. 276
Schengen Borders Code, Article 25(3). 277
European Commission, C(2015) 7100 final, pp. 3-5. 278
Ibid. p. 4.
47
had already been sheltered during open borders varied from tens of thousands to hundreds
of thousands.279
Temporary border controls in Germany were considered proportionate, as free movement
had only been limited to the extent that was necessary on grounds of security. Border
checks were not carried out at all German borders, but they were concentrated on the
border sections along the German-Austrian border, which had proved to be the most
problematic. Even if border checks were now applied, the possibility to cross borders was
not limited, apart from some suspended cross-border train connections with Austria.280
In Austria, the number of migrants seeking for protection was not as huge, but dealing with
the crisis had overloaded authorities‟ resources to a point, where border controls were seen
necessary in order to continue screening and registering migrants that were entering the
Austrian territory on a daily basis. So far, there had not been direct evidence of extremist
groups abusing the movement of the migrants, but the large number of refusals of entry in
Austria and numerous SIS and Interpol hits in Slovenia suggested that immigration flows
of this size were likely to contain unwanted individuals, such as lone extremists or those
who were linked to criminal organisations or military groups.281
Similar to the reasoning in Germany, Austria considered its reintroduction of border
control proportionate, as controls were concentrated on the Slovenian and Hungarian
borders, leaving other land borders and airports untouched. An interesting mention in the
Austrian response was that suspending international trains and closing down motorway
sections were not considered as border control measures, but as measures protecting the
“physical integrity of the arriving persons and of the local population”.282
Despite these replies, the Commission was still not pleased with the information it had
received. After the second prolongation of border control in Germany, the Commission
requested further and even more detailed information from the German authorities. After
repeating what had already been said, the German authorities supplemented their
justification with warnings they had received from Austria and Slovenia related to
279
Menéndez 2016, p. 400. 280
European Commission, C(2015) 7100 final, p. 4. 281
Ibid. pp. 3-6. 282
Ibid. p. 5.
48
unwanted persons, with connections to criminal or militant groups, hiding among asylum
seekers.283
As the situation at the internal borders saw no change, the Member States continued
prolonging their measures in accordance with Articles 23 and 24 SBC.284
These
prolongations were supported by the Council‟s Implementing Decision on 12 May 2016,
setting out a recommendation for temporary internal border control in exceptional
circumstances putting the overall functioning of the Schengen area at risk. In this decision
the Council recommended Germany, Austria, Sweden, Norway and Denmark to “maintain
proportionate temporary border controls for a maximum period of six months, starting
from the day of the adoption of this Implementing Decision”,285
giving these five member
states an opportunity to prolong their internal border controls for another 6 months, as long
as the guidelines regarding necessity and proportionality were followed.
In July 2017, one year and nine months after Germany had first applied Article 25 SBC,
five Member States – Germany, Austria, Denmark, Sweden and Norway – were still
carrying out border controls at their internal borders. In Hungary and Slovenia, border
controls lasted only for 10 days and no further prolongations were considered necessary,
despite the similar reasoning for implementing these controls.286
At the same time, the
majority of the 26 Schengen States did not take any action to limit the arrival of
migrants.287
Differences between Member States‟ reactions to the migratory crisis and the
fact that border controls in Germany and Austria remained rather limited in their fashion to
ensure the minimal effect on the freedom of movement, raised questions over whether
border controls were really as necessary as thought.
4.2.2 Commission opinion on the German and Austrian measures
The Commission published its opinion on the necessity and proportionality of the controls
at internal borders reintroduced by Germany and Austria on 23 October 2015. This opinion
was based on the initial notification letters provided by Germany and Austria and the
283
European Commission, C(2015) 7100 final, p. 4. 284
European Commission, COM(2015) 675, p. 6. 285
Council Document, 8835/16, p. 8. 286
European Commission 2017, section: Temporary Reintroduction of Border Control. 287
Guild, Brouwer, Groenendijk and Carrera 2015, p. 8.
49
replies it had received to its inquiries. The way the Commission had reacted to the
prolongation of border control in Germany and Austria signalled that it was not fully
pleased with the limitations to free movement. Therefore, it was surprising that in this
opinion the Commission came to a fairly quick conclusion that temporary border controls
at the internal borders of Germany and Austria, as well as their prolongations, were made
in compliance with the SBC.288
The Commission found the application of Article 25 SBC in Germany and Austria
necessary and proportionate, even though it reminded that the reintroduction of border
control should not be justified with large migratory flows, as stated in recital 5 of the
amending Regulation.289
What made the Commission steer away from the earlier view of
the EU legislator was the sheer amount of migrants entering German and Austrian
territories. Border controls were considered as “an adequate response to the identified
threat to the internal security and public policy, consisting of the uncontrolled influx of
exceptionally large numbers of undocumented/improperly documented persons and the
risk related to organised crime and terrorist threats.”290
What the Commission did not agree with, however, was using the threat of high-risk
individuals hiding among asylum seekers as the sole reason to declare a serious threat to
public policy and internal security. The Commission stated that doing so would first
require “quantifying the warnings on persons who may have had contacts to or fought with
militant groups in crisis regions.”291
This, however, highlighted the need for systematically
screening and registering migrants, something that could not be performed without border
checking procedures, further supporting the temporary reintroduction of border control.292
The application of Article 25 SBC in Germany and Austria was considered proportionate
for a couple of reasons. Firstly, border controls helped in screening and registering
migrants without impinging the right to seek international protection in the form of asylum.
Secondly, border controls were performed in a limited fashion, concentrated on the border
sections identified as the main routes used by migrants, further indicating their limited
288
See Ghimis 2015, “The refugee crisis: Schengen‟s slippery slope”, p. 1. and Guild, Brouwer, Groenendijk
and Carrera 2015, p. 9. 289
European Commission, C(2015) 7100 final, pp. 7-9. 290
Ibid, p. 7. 291
Ibid. 292
Ibid.
50
effect on free movement. Thirdly, border controls did not seem to have a big impact on the
normal traffic flows in and out of Germany and Austria. Even the temporary suspensions
of train connections between these two countries were considered proportionate, as these
destinations could be reached via other transport means.293
One detail worth noticing in this assessment was that, when speaking of border controls in
Germany, the Commission noted that it had “not received so far any complaints from [EU]
citizens about the way border controls are carried out in practice”;294
further proving
Germany‟s attempts to limit the negative effects of applying Article 25 SBC. This was
surprising, because even though these controls had a negative impact on the free movement
of both Union citizens and TCNs, the main purpose of these controls was to restrict the
entry of migrants from third countries. Still the Commission considered the opinions of EU
citizens worthwhile on this issue, even though it was not the Union citizens‟ task to
safeguard the four freedoms.
To conclude the proportionality assessments, the Commission stated that “The overall
number, location and frequency of the controls do not seem to impede on the freedom of
movement in the areas concerned.”295
Disappointing in this assessment was the fact that it
did not explain how the proportionality of these two measures was actually measured.
Necessity and proportionality are mentioned multiple times, but there is no mention of the
traditional ways for measuring proportionality, such as the two part or three part tests
examined in Chapter 2. There were also no mentions related to the suitability of
proportionality in the strict sense, leaving these assessments hollow.
4.3 Intensified checks within the territory in the Netherlands
The Netherlands was another Member State to strengthen its grasp of its national borders
during the migratory crisis of 2015, but unlike in the above-mentioned eight Member
States, controls in the Netherlands were not based on temporary reintroduction of internal
border control and Articles 23–26 SBC, but on checks within the territory as described in
Article 21 SBC.
293
Ibid. pp. 7-8. 294
Ibid. p. 8. 295
Ibid.
51
In September 2015, the Netherlands applied for the first time the new Article 4.17a of the
Netherlands Aliens Decree, introduced in the aftermath of case Adil, allowing intensifying
the intensity and frequency of MSM checks and doubling their numbers from 6 hours a day
and 90 hours a month up to 12 hours a day and 180 hours a month.296
Intensifying MSM controls in accordance with Article 4.17a was restricted to situations
where there was concrete proof of increase in irregular migration that could lead into the
growth of unlawful residence.297
This condition was considered to be fulfilled and the
introduction of intensified MSM was justified with the attempt to control the rising
numbers of migrants and to prevent human smugglers from taking advantage of the
vulnerable position of asylum seekers.298
The duration of the intensified MSM checks was prolonged for the first time in October
and the second time in November 2015. Simultaneously with the first prolongation, the
justification of these controls was updated by the Netherlands Secretary of State for
Security and Justice and three main goals for the intensified MSM were listed. The first
goal of the three was the fight against irregular migration and human smugglers, which
sounded similar to the justification of temporary border control in the eight Member States.
The second goal was to prevent humanly degrading incidents,299
which referred to an
incident in Austria where 71 refugees had died on board an abandoned truck.300
The third goal was to prevent incidents from threatening public order and national security
in the Netherlands, resembling the wording “public policy or internal security”, used in
Article 23 SBC in connection with temporary border control. The latter decision to prolong
MSM in November was also affected by the terrorist attacks that happened in Paris in the
same month and the declaration of an emergency state in France.301
Intensified MSM checks were not introduced without any objection. The intensity and
frequency of MSM had been limited after Melki and Abdeli for a reason to ensure that they
296
Van der Woude 2015. 297
See Van der Woude 2015 and Guild, Brouwer, Groenendijk and Carrera 2015, p. 16. 298
Guild, Brouwer, Groenendijk and Carrera 2015, p. 17. 299
Ibid. 300
Ghimis 2015, p. 1. 301
Guild, Brouwer, Groenendijk and Carrera 2015, p. 17.
52
remained non-equivalent to border checks. Now, as these restrictions were suddenly
removed and the intensity of the MSM doubled, there were concerns about the legality of
this measure and whether the situation at the internal borders could be used to prove a
considerable increase in unlawful residence.302
Despite the fact that Article 4.17a was now applied for the first time, doubts concerning its
legality were not completely new. When the Aliens Decree was amended in 2014, the
Netherlands Advisory Committee on Migration Affairs had expressed its concerns
regarding the vagueness of grounds for justification of the intensified MSM, which could
lead into applying the new article based on illegitimate grounds.303
These doubts reminded
of the fears the EU legislator had when the SBC was being drafted, concerning checks
within the territory becoming an alternate form of border control.304
The concerns of the
Advisory Committee were taken into account in drafting Article 4.17a, and it was
supplemented with the requirement to specify the reasons justifying its application in a
way that allows the lawfulness of the measure to be reviewed by a judge.305
Not long after the intensified MSM controls were applied, two Dutch lower courts were
required to provide decisions on the lawfulness of apprehensions performed to migrants
under this new measure. On 16 November 2015, a lower court in Groningen found
intensified MSM checks to be in line with the national legislation and the SBC, while
another court in Rotterdam declared the measure insufficient few weeks later on 3
December 2015. The judgment of the Rotterdam court was strict, as it stated that
intensified MSM checks were conflicting with the national legislation and to be nullified
immediately and any migrants put into detention during these checks released.306
The decision of the Rotterdam court was reasoned with insufficient information provided
by the Netherlands government, which did not give enough reasons that would have
justified intensifying the MSM. This judgement made a separation between asylum
seekers, who were considered to be lawfully resident in the Netherlands, and irregular
migrants, who were not. Even though the numbers of asylum seekers entering the Dutch
302
See Van der Woude 2015 and Adil, para. 86. 303
Van der Woude 2015. 304
Guild, Brouwer, Groenendijk and Carrera 2015, p. 16. 305
Van der Woude 2015. 306
Guild, Brouwer, Groenendijk and Carrera 2015, p. 17.
53
territory were higher than usual, they were still considered to be legally present and their
high number alone was not considered serious enough a reason to intensify the MSM.307
The fact that these two national courts came to opposite conclusions concerning the
legality of the MSM showcased how uncertain the legal basis for intensifying the MSM
was, even though the national legislation concerning the implementation of Article 21 SBC
was the most advanced among the Member States.308
The disapproval of the Rotterdam
court towards the justification of the intensified MSM was surprising, because at the same
time very similar reasons were used to justify temporary border controls in the eight
Member States applying Article 25 SBC.
Despite the similarities in the justification of temporary reintroduction of border control
and checks within the territory, one significant difference between these measures was that
Article 21 SBC did not oblige the Netherlands to notify other Member States or the
Commission, or to provide assessments concerning the proportionality of the measure.309
Even if these two measures were applied for similar reasons and/or to reach similar goals,
their strain on the Schengen system was very different, as checks within the territory could
be considered as a lighter alternative for temporary border control.
Intensified MSM controls in the Netherlands showed that despite the earlier judgements
regarding the interpretation of Article 21 SBC, Member States still enjoyed large amounts
of discretion when it came to implementing the rules of the SBC in their national
legislation.310
This can be worrying when looking at the recent development of
immigration control and how mass migration is being treated at external and internal
Schengen borders.
307
Guild, Brouwer, Groenendijk and Carrera 2015, p. 17. 308
Ibid. 309
Brouwer 2015. 310
Van der Woude 2015.
54
4.4 Migratory flows as justification
4.4.1 Changes in the concept of asylum
It appears that the ultimate reason for both exceptions to the abolition of internal border
control in the EU during 2015 were made to restrict the arrival of immigrants, regardless of
the wordings in the Member States‟ notification letters or in the opinions of the
Commission.311
If the view of the EU legislator presented in 2013 was that large numbers
of TCNs crossing external borders should not be considered as a threat to public policy or
internal security, then a question can be asked: why were these restrictions to the freedom
of movement suddenly considered as an adequate and proportionate response to the
migratory crisis?312
The Commission opinion on the necessity and proportionality of the border controls in
Germany and Austria found these measures to be in line with the SBC based on the sheer
amount of undocumented migrants entering German and Austrian territory.313
Large
numbers of arriving migrants were used as an excuse to move away from the rules laid out
in the amending Regulation of 2013, even though these numbers of migrants should not
have come as a surprise after the Arab Spring situation in 2011, despite its smaller scale.
The sudden reconsideration of what should be seen as a serious threat to public policy or
internal security suggested that something had changed in a relatively short time, making
uncontrolled migratory flows a greater threat to the EU than they used to be in the
aftermath of the Arab Spring. Reasons for this turnaround can be searched from the recent
changes in the concept of asylum.
The UN Refugee Convention of 1951 describes a refugee as someone who is “unable or
unwilling to return to their country of origin owing to a well-founded fear of being
persecuted for reasons of race, religion, nationality, membership of a particular social
group, or political opinion.”314
This so called persecution requirement was well suited for
the Cold War era, when the concept of asylum was introduced and the majority of refugees
seeking protection in the West were fleeing oppressive states. Nowadays the reasons for
seeking asylum are much more diverse, creating pressure on the traditional focus of
311
Guild, Brouwer, Groenendijk and Carrera 2015, p. 10 312
The SBC amendment, recital 5. 313
European Commission, C(2015) 7100 final, pp. 5-7. 314
UN Convention Relating to the Status of Refugees 1951, p. 3.
55
asylum: refugees fleeing from civil war, famine or poverty might need protection as much
as persecuted people, but they might not fulfil the original persecution requirement.315
Two recent trends for asylum policy include granting asylum for those who would not be
accepted, if the traditional persecution requirements were still interpreted in a strict sense,
and restricting the entry of migrants, supported by the view that the numbers of asylum
seekers are growing too high.316
High numbers of asylum seekers bring up negative public
opinions on migration, which are fuelled by the media that in times of mass migration
often describes immigrants as uninvited guests and a threat to the modern society.317
Negative opinions on migration benefit politicians with strong anti-immigration stances,
agitating discussion related to stricter border policies and further restrictions to free
movement; this is something that has been seen in the Netherlands in the 2010s.318
Fear of migration is often connected to the fear of terrorism. In many Western countries,
discussing migration has become overly concerned about security issues since the terrorist
attacks of 11 September in the United States (US).319
In the US, negative attitudes towards
migration and the pursuit for high security borders has led into militarising the US-
Mexican border area, where violence has become a legitimate answer to illegal
immigration.320
Current development in the US has led to the increase in the use of
biometrics and other surveillance technologies that allow tracking a person‟s movements
and help determining whether they should be allowed to enter the US or not.321
After 9/11, EU relations with third countries have also become more security oriented,
which can be noticed in developing more proactive border control policies in order to fight
the threat of terrorism.322
Increase in the use of surveillance technologies can also be
noticed at EU level, and legislative proposals, such as the Smart Borders package, seek to
315
Price 2009, p. 4. 316
Ibid. p. 11. 317
See Singh Bhui 2013, ”Humanizing Migration Control and Detention”, p. 2 and Zedner 2013, ”Is the
Criminal Law Only for Citizens?”. In Franko Aas, Katja and Bosworth, Mary (Eds.): The Borders of
Punishment: Migration, Citizenship and Social Exclusion. Oxford University Press, p. 48. 318
Franko Aas 2013, ”The Ordered and the Bordered Society”. In Franko Aas, Katja and Bosworth, Mary
(Eds.): The Borders of Punishment: Migration, Citizenship and Social Exclusion. Oxford University Press, p.
34. 319
Barnard 2013, p. 539. 320
Singh Bhui 2013, p. 4. 321
Zaiotti 2011, p. 200. 322
Ibid. p. 178.
56
strengthen the security of the external Schengen borders by increasing the use of
biometrics and providing more information of TCNs‟ movements.323
Managing migration nowadays requires dividing migrants into groups of desirable and
undesirable migrants.324
When asylum systems are overloaded with many different types of
migrants seeking for protection, making this division becomes much harder. Suddenly
strengthening control over national borders appears a tempting opportunity to maintain
control over those who are allowed to enter and to keep economic refugees, human
traffickers, terrorists and other criminals out. This thought process could be seen in the
letters provided to the Commission by Germany and Austria, even though there was no
concrete evidence of extremists hiding among the refugees.325
When different forms of control are introduced at internal borders, there is always a risk
that they hinder the possibility of legitimate asylum seekers to have their claims heard,326
even when Member States applying such controls report that the right to seek international
protection is left untouched, like in the case of Germany and Austria in 2015.327
Still, both
exceptions to the abolition of external border control in the EU appear to be legitimate
ways of controlling migration, which at the same time, is continuously expanding and
finding new forms.
4.4.2 Expansion of migration control
In 2009, the Commission estimated that about 780,000 people in the EU were cross-border
commuters, who crossed borders daily due to work or other reasons.328
Mass border
crossing has become an essential feature for the modern world, pushed by globalism and
capitalist economies that depend on the free movement of goods and currencies. Therefore
crossing borders, in itself, can hardly be classified as a crime.329
Border crossing related
323
European Parliament, “Smart Borders: EU Entry/Exit System”, briefing July 2016, p. 2. 324
Barnard 2013, p. 551. 325
European Commission, C(2015) 7100 final, p. 4. 326
Price 2009, p. 233. 327
European Commission, C(2015) 7100 final, pp. 7-8. 328
European Commission 2009, ”Scientific Report on the Mobility of Cross-Border Workers within the EU-
27/EEA/EFTA Countries”, p. VII. 329
Bowling 2013, ”The Borders of Punishment: Towards a Criminology of Mobility”. In Franko Aas, Katja
and Bosworth, Mary (Eds.): The Borders of Punishment: Migration, Citizenship and Social Exclusion.
Oxford University Press, p. 292.
57
infractions however, such as unlawful entry, overstaying or providing fraudulent
documents, have been specified as criminal offences.330
Migrants committing criminal offences have traditionally been labelled as illegal
immigrants, but the definition of „immigration offender‟ has also been used when referring
to migrants who are not only subject to removal or visa restrictions, but are to undergo
criminal prosecution and punishment prior to their deportation.331
The overlapping of
migration control and imprisonment can be seen as evidence of criminalising migration, or
so called „crimmigration‟, which connects migration, criminality and terrorism.332
Crimmigration has been criticised as being against the principles of international law and
creating a contrast to the human rights focus of refugee law.333
Crimmigration as a term has been around since 2006, but prior to the migratory crisis of
2015 there was no suspicion that criminalising migration had played a part in the
temporary reintroductions of border control in the EU. A lot has changed since then, as the
measures prior to 2015 remained limited in their duration, ensuring that the principle of
proportionality was properly safeguarded.334
Hints of crimmigration were visible during
the Arab Spring situation in 2011, but as the migratory flows remained controllable,
migrants were treated without distinction.335
In a time where temporary border controls are
continuously prolonged and Member States are looking for alternative ways to maintain
control of internal borders, sings of crimmigration are easier to find.
The power to decide how national borders are controlled and secured remains one of the
key aspects of national sovereignty in many developed countries. The growing importance
of border security has also increased the significance of migration control, which has been
moving further away from physical borders and its traditional site of enforcement. At the
330
Bowling 2013, p. 294. 331
Ibid. 332
Kaufman 2013, “Hubs and Spokes: The Transformation of the British Prison”. In Franko Aas, Katja and
Bosworth, Mary (Eds.): The Borders of Punishment: Migration, Citizenship and Social Exclusion. Oxford
University Press, p. 174. 333
See Barker 2013, ”Democracy and Deportation: Why Membership Matters Most”, p. 245 and Dauvergne
2013, ”The Troublesome Intersections of Refugee Law and Criminal Law”. In Franko Aas, Katja and
Bosworth, Mary (Eds.): The Borders of Punishment: Migration, Citizenship and Social Exclusion. Oxford
University Press, p. 77. 334
Van der Woude - Van Berlo 2015, p. 73. 335
Campesi 2011, “The Arab Spring and the Crisis of the European Border Regime: Manufacturing
Emergency in the Lampedusa Crisis”, p. 17.
58
same time, migration control has also found new forms, such as ensuring the departure of
the unwanted.336
Even though the criminal prosecution of migrants has become more
common, states under heavy migratory flows are still more often interested in getting rid of
unwanted individuals, rather than making them responsible for their wrongdoings.337
Policing borders and controlling migration in the modern world requires activities on both
sides of the physical border.338
The uniform Schengen visa system is an example of how
migration can be controlled in the representative offices of Member States before any
actual borders are crossed. The privatisation of migration control, beyond physical borders,
can be seen at international airports, where passengers‟ identities can be checked multiple
times before they enter the Schengen area.339
When talking about migration control that happens inside the physical borders, Article 21
SBC plays an important role at EU level. The exercise of police powers in border areas,
with the purpose of migration control, as enabled since case Adil, strengthen the
assumption that migration control is not only present at physical borders, but at every step
of the journey that immigrants have to take in order to reach their destination.340
Controls
such as the intensified MSM in the Netherlands take this assumption even one step further,
as migration control does not stop when migrants reach their final destination, but continue
even after the physical borders have been crossed.
A similar development of inland migration control outside the EU can be seen in Australia,
where the growing pressure in securing borders has drawn many governmental and non-
governmental organisations into the field of policing migrants.341
The ideology behind
Australian immigration policies has been that, as a sovereign country, Australia has the
right to decide who can enter and stay in its territory; therefore Australian immigration
policies have traditionally been rather strict.342
336
Weber 2013, ”Policing Non-Citizens”, p. 1. 337
Franko Aas 2013, p. 24. 338
Pickering - Weber 2013, ”Policing Transversal Borders”. In Franko Aas, Katja and Bosworth, Mary
(Eds.): The Borders of Punishment: Migration, Citizenship and Social Exclusion. Oxford University Press, p.
93. 339
Gammeltoft-Hansen 2011, p. 37. 340
Ibid. p. 16. 341
Pickering - Weber 2013, p. 95. 342
Weber 2013, p. 62.
59
Australian police officers have the authority to check the identity of any person suspected
of being non-citizen at all times and they are required to detain migrants if there is a
suspicion of unlawful stay.343
Australian police and immigration authorities work closely
together and their duties have become more and more overlapping, even to a point where
immigration authorities have become more police-like. Straightforward immigration
policies, combined with the fact that Australia is an island, have made Australia one of the
most advanced policy regimes revolving around control.344
The influence of Australian immigration policies can also be noticed at EU level, as they
have been used as an example in Spain, where the arrival of illegal immigrants from
Morocco has been causing concerns for some time.345
Controlling borders in Europe,
however, is not as simple as in Australia. Long land borders with the east and a relatively
short distance between the southern Member States and Africa create unique challenges for
European border control. In the southern Member States such as Spain, the main goal for
migration control for a long time has been to prevent irregular migration, not to guarantee
protection of the refugees who want to apply for asylum.346
In migration control, determining the risk level of a nationality correlates directly with the
deviance of their home country.347
Separation between wanted and unwanted migrants is
easier to do when migrants are categorized into groups based on their nationality and threat
level. This kind of profiling is carried out by the Frontex risk analysis unit, which provides
yearly „top ten‟ lists of nationalities that have the highest risk of illegal entry, illegal stay or
provide most fraudulent documents, among other categories.348
This can sound surprising
because non-discrimination on grounds of nationality has been one of the cornerstones of
the EU when it comes to things such as applying for citizenship.349
When nationalities, countries or ethnicities are started to be categorized into risk groups
based on their assumed threat level, a new kind of risk profiling industry is created. This
includes targeting most resources on the most threatening groups and using information
343
Weber 2013, p. 62. 344
Johnson 2014, p. 67. 345
Ibid. p. 38. 346
Ibid. p. 87. 347
Franko Aas 2013, p. 30. 348
Frontex 2016, pp. 63-72. 349
Thym 2016 “„Citizens‟ and „Foreigners‟ in EU Law. Migration Law and its Cosmopolitan Outlook”, p.
314.
60
based strategies to assess and anticipate different forms of danger, contributing to the
further development of biometrics and other surveillance technologies.350
In a world where criminalising migration is becoming more common and controlling
migration requires dividing migrants into groups of wanted and unwanted, the significance
of maintaining control of the external borders becomes more notable. In a situation where
the security of the external border is breached, the position of the principle of free
movement inside the Schengen area becomes unclear. If Member States are left with no
alternative measures to protect their national sovereignty and to maintain control over
those who are allowed to enter their territory, then the fear of illegal immigration and
terrorism might lower the threshold for making exceptions to the abolition of internal
border control.
At the same time, assessing the necessity and proportionality of these measures becomes
more difficult. If the three part proportionality test introduced in Fedesa is used as an
example, verifying suitability of internal controls is difficult, as regaining full control of
the external border might be considered more appropriate for reaching the end objective
that is restraining the flow of migrants. Secondly, necessity of the controls is hard to
demonstrate, as the majority of Schengen States took no action to limit the arrival of
migrants in 2015 and 2016. Thirdly, assessing proportionality stricto sensu is challenging,
because known disadvantages of internal controls to the affected parties cannot be
compared with their advantages to the general population, if the negative effects that could
happen, if these measures were not applied, remain unknown.
Despite the current development of migration control, in emergency situations where
structural limits are pushed aside, the legal limits should stay.351
If more Member States
begin looking for alternative ways in the SBC to maintain control over their internal
borders, and the application of Article 21 SBC becomes more common and starts to find
new forms, it is growingly important that the Member States‟ ways of managing
crimmigration remain under strict supervision in order to prevent overreaction and the
exploitation of the Schengen rules.352
350
Weber 2013, p. 6. 351
Menéndez 2016, p. 397. 352
Van der Woude - Van Berlo 2015, p. 77.
61
5 CONCLUSION
The principle of proportionality is connected to both exceptions to the abolition of internal
border control in the EU. The requirement to respect the principle of proportionality does
not only affect the temporary reintroduction of border control, as described in Articles 23–
26 SBC, but it can also have an impact on the application of checks within the territory, as
described in Article 21 SBC, in a situation where the generally limited frequency and
intensity of the exercise of police powers by the competent authorities of a Member State
are intensified in accordance with national legislation, such as the MSM checks in the
Netherlands during the migratory crisis of 2015.
The requirement to respect the principle of proportionality applies to all three situations
where temporary border controls may be reintroduced. In foreseeable events (Article 23
SBC) and unforeseeable circumstances (Article 25 SBC), the requirement to assess the
proportionality of the measure belongs to the relevant Member State, while in exceptional
circumstances (Article 26 SBC), this responsibility shifts to the Council. However, when
border controls are reintroduced in accordance with the specific procedure for cases
requiring immediate action, the application of Article 25 SBC postpones the requirement to
fully assess the proportionality of the measure until such controls are prolonged.
The migratory crisis of 2015 and the secondary movements of unregistered TCNs inside
the Schengen area created an unforeseen challenge for the modern Schengen system. The
reintroduction of temporary border control, in accordance with Article 25 SBC, was
considered necessary in eight Member States to restrain the uncontrolled flow of migrants.
Critics have pointed out that defensive border control policies are a poor answer to the
fundamental challenges of contemporary governance, as they are often ineffective and
inhumane, yet physical borders preserve their status as a significant site for risk-based
governance.353
The Commission has handled the initial reintroductions of border control and their
prolongations gently. In its opinion on the necessity and proportionality of the controls at
internal borders reintroduced by Germany and Austria, the Commission approved the
353
Weber 2013, p. 1.
62
reintroduction of border control and limitations to the freedom of movement based on the
threat caused by the unexceptionally large migratory flows, even though the EU legislator
stated in 2013 that large migratory flows should not be considered as a serious threat to
public policy or internal security.354
The temporary border controls in Germany and Austria were considered proportionate by
the Commission in view of simplifying the procedure of receiving and registering
migrants. Because these controls were limited to specific border sections, they were not
considered to significantly hinder free movement.355
The case law of the CJEU has proven
that the proportionality of a measure can be evaluated in different ways and that there is no
uniform way for measuring proportionality. In its assessment, the Commission did not
refer to the traditional ways of measuring proportionality or define how the proportionality
of the German and Austrian measures was evaluated, diluting the value of these
assessments and leaving them bland.
The requirement to respect the principle of proportionality is strongly visible in the SBC
concerning temporary reintroduction of border control, but this is not the case with checks
within the territory. This can be explained with the differences between these two
measures, as the purpose of Article 21(a) SBC is not to replace missing border controls,
but to allow police authorities to continue exercising their powers in border areas, as long
as these controls may not be considered as equivalent to border checks.356
Another major
difference between these measures is that checks within the territory can be applied
continuously, without the need to inform other Member States or EU institutions or being
required to assess the proportionality of the measure.
The territorial scope, intensity and frequency of checks within the territory have been
limited by the ECJ judgments of Melki and Abdeli and Adil. Member States are also
required to describe their application of Article 21(a) SBC in their national legislation to
ensure the non-equivalent effect to border checks. Yet Member States enjoy notable
discretion when it comes to deciding how Article 21 SBC can be applied nationally.
Controls, such as the intensified MSM in the Netherlands in 2015, have shown that when
354
The SBC amendment, recital 5. 355
European Commission, C(2015) 7100 final, p. 7. 356
Schengen Borders Code, Article 21.
63
the application of Article 21(a) SBC is pushed to its limits, problems can arise concerning
the legality of these measures.
In a situation where the national legislation of a Member State allows intensifying the
intensity and frequency of checks within the territory, with a purpose of migration control,
based on a serious threat to public policy or internal security, it leaves an impression that
these controls are justified and carried out to reach similar goals with the temporary
reintroduction of border control. By doing so, controls such as the intensified MSM in the
Netherlands risk being on the edge where the application of Article 21(a) SBC becomes an
alternate form of border control.
If the difference between temporary border control and checks within the territory becomes
more indistinct, a question arises whether the application of Article 21 SBC should be
legislated more strictly, or whether the requirement to assess proportionality should be
included. These questions have been under debate in the Dutch lower courts, where the
legality of the intensified MSM has proved to be problematic, despite the fact that the
national legislation in the Netherlands concerning the application of Article 21 SBC is one
of the most advanced among the Member States and has been reviewed by the ECJ in the
case of Adil.357
On a global scale, border control, migration control and methods of domestic law
enforcement are becoming more and more similar. Checking travel documents, refusing
entry and detaining persons for further questioning have traditionally been associated with
the work of border guards, stationed along the physical borders. With the help of
developing technology, criminal investigation and growing detention capabilities, the
jurisdiction of border control agencies is expanding outside the physical borders. At the
same time, police authorities are becoming more involved in inland migration control and
more similarities can be seen between traditional police work and the police-like activities
of border control agencies.358
357
Guild, Brouwer, Groenendijk and Carrera, p.17 358
Bowling 2013, pp. 296-297.
64
Border control remains the heart of the regulatory effort in order to retain national
sovereignty.359
If securing the external Schengen border results in a failure, it is likely that
the Schengen States will be looking for means provided by the SBC to maintain control
over their national borders. The reintroduction of border control in the eight Member States
during the migratory crisis has shown that when the situation is serious enough, the rules of
the SBC regarding what should be considered as a serious threat to public policy or
internal security can be flexible. Even though the principle of proportionality restricts the
application of Articles 23–26 SBC, it is not clearly defined how proportionality should be
assessed or measured, leaving the proportionality principle in danger of being overlooked
and overshadowed by other interests, such as protecting the integrity of internal borders.
Even in times of mass migration, crossing borders and seeking asylum should not be
considered as criminal offences. However, the political and public support for asylum is
decreasing, as its loopholes continue to be exploited.360
Tightening the control of internal
borders in fear of illegal immigration has proven to be ineffective, and objectives pursued
with it are often left unaccomplished.361
At the same time, crimmigration corrodes the
principles of international law and often results in human tragedies. Still, criminalizing the
illegal entry of migrants appears to be a growing concern at both external and internal
Schengen borders, endangering the possibility of legitimate asylum seekers to have their
claims heard.
The straightforward idea of dividing the Schengen borders into external borders, where
border checks are enforced, and internal borders, where they are not, has not proved to be a
success without hardship. The Schengen system is based more on the principle of mutual
recognition, rather than pure harmonisation, enabling differences between Member States
for instance when determining what should be considered as a serious risk to public policy
or internal security.362
This lack of uniformity among the Member States has prevented the
creation of a homogenous territory where similar rules could be enforced without the need
for multiple exceptions.363
359
Sassen 1996, ” Losing Control?: Sovereignty in an Age of Globalization”, p. 3. 360
Price 2009, p. 234 361
See Barker 2013, p. 245 and Van der Woude - Van Berlo 2015, p. 63. 362
See Barnard 2013, p. 556 and Zaiotti 2011, p. 229. 363
Bigo 2008, ”EU Police Cooperation: National Sovereignty Framed by European Security?”. In Guild,
Elspeth and Geyer, Florian (Eds.): Security versus Justice? Ashgate Publishing Company, p. 99.
65
The rules of the Schengen Agreement and how they are implemented in the SBC are
highly detailed, especially when it comes to the temporary reintroduction of border control.
On the other hand, there is very little case law concerning limiting the free movement of
persons, if compared to the existing case law on border control of goods, which are based
on more general and not as detailed provisions of the TFEU.364
The interpretation of
Article 21(a) SBC has been clarified by the CJEU, but despite these two landmark cases,
Member States have still failed to find common answers to fundamental questions, such as
what should be considered as „border area‟.
Despite the gentle treatment Germany and Austria received from the Commission, the
reintroduction of border control in the eight Member States and the intensified MSM
control in the Netherlands during the migratory crisis of 2015 have received a lot of
criticism. The disapproval of the EU legislator towards the Member States‟ actions that
limited the freedom of movement during the Arab Spring situation in 2011 led to amending
the SBC in a way that restricted the Member States‟ opportunities to reintroduce temporary
border controls. One of these changes was highlighting the significance of the requirement
to assess the necessity and proportionality when applying Articles 23–26 SBC.365
Depending on the outcomes of the current migratory crisis, it is possible that the EU
legislator will be looking again at the possibilities to restrict the application of Articles 23–
26 SBC in the Member States. If the role of the Member States in the temporary
reintroduction of internal border control is further diminished, then more Member States
might be tempted to search for alternative ways for monitoring their internal borders
provided by the SBC, increasing the popularity and creative application of Article 21
SBC.366
Unmanageable migratory flows at external borders and secondary movements inside the
Schengen area have revealed serious weaknesses in the modern Schengen system, leading
borderless Europe and the principle of free movement into a spin. It is unlikely that the
culture of European border control is undergoing such a major change that the era of open
364
Jorgensen – Sorensen 2012, p. 13. 365
Peers 2013, p. 44. 366
Van der Woude - Van Berlo 2015, p. 79.
66
borders is coming to its end, but if the EU wants to maintain the credibility of a borderless
Europe, some changes might be necessary.
The role of the proportionality principle in the exceptions to the abolition of internal border
control appears to be fickle, despite its strengthening in 2013. Temporary border controls
are introduced, prolonged and accepted without elaborate assessments concerning
proportionality. At the same time, new forms of migration control, such as the MSM in the
Netherlands, are introduced, sharing the objectives with the reintroduction of border
control, while being free from the requirements to assess proportionality or to notify other
Member States or EU institutions.
The European asylum system is undergoing legislative changes due to the migratory
crisis.367
In a same way, the two exceptions to the abolition of internal border control
should be given a look by the EU legislator. The temporary reintroduction of border
control needs clear rules for when it can be applied, how long it can be prolonged and how
the principle of proportionality should affect its application. Checks within the territory
require standardisation to prevent it from functioning as a loophole in the SBC, allowing
controls similar to border checks without any supervision. Having clear and uniform rules
on the two exceptions to the abolition of internal border control in the EU are necessary to
safeguard the freedom of movement inside the Schengen area, as well as to maintain
legitimate and non-discriminatory controls at internal borders when they are needed.
367
European Union 2017: ”A European Agenda on Migration: State of Play March 2017”, p. 4.