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The Commission to Revise the Schengen Borders Code Amidst National Threats to the System

On 15 December 2015 the European Commission presented a comprehensive package of measures aimed at securing the EU’s external borders and at managing migration flows more effectively. This came in response to the migration pressures and the latest terrorist attacks in Paris and security threats looming over Europe, which have prompted Member States to temporarily re-establish their borders and to take measures to deter migrants’ inflows, as a link between the two has quickly (and sometimes mistakenly) been made.

In particular, the package includes a proposal for a targeted revision of the Schengen Border Code to provide for mandatory systematic controls of EU nationals, in order to verify that such persons do not represent a threat to public order and internal security. Systematic checks of EU citizens enjoying the right to free movement under Union law are today possible only in relation with the authenticity and validity of their travel documents. Under the new Commission’s proposal they would also include the verification of biometric information (i.e. facial image and fingerprints) and checks against relevant databases – measures which so far are only applicable to third-country nationals. While this has raised concerns that it could hamper the right to free movement of EU nationals, the proposal foresees that such an obligation of carrying out systematic checks could be waived whenever it is proven that it could lead to a disproportionate impact on the traffic flow at the border.

Another new measure concerns the reinforcement of the mandate of Frontex agency with the creation of a European Border and Coast Guard, which will be responsible for ensuring the effective application of strong common border management standards and will provide operational support to Member States to respond to emerging crises at the external border, being able to intervene when a Member State is unable to do so or even against its will where necessary. This could for instance apply to a Member State like Greece, which was recently reprimanded for not fulfilling its border control obligations (see Commission evaluation report on Greece).

Whilst these measures are aimed at reinforcing the EU common borders and thereby the EU’s internal security, they raise concerns as to the concrete implications they could have for one of the biggest achievements of European integration process, namely the Single Market, and more concretely the freedom of movement of people (see Standard Eurobarometer Survey 81 – Spring 2014). The supporters of the proposed measures present them as the trade off for saving the Schengen agreement as giving it up totally would be the worst-case scenario. Indeed, as projected by a recent study from the French think tank France Stratégie, a rollback of the Schengen agreement could cost Europe over EUR 100 billion in the next decade, a price that EU citizens should have to pay.

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