Zuzanna Warso est avocate auprès de Europe of Human Rights.
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"Recently the European Council reached a controversial agreement concerning the Schengen zone. In Council conclusions of 24 June one reads about a mechanism that 'should be introduced in order to respond to exceptional circumstances putting the overall functioning of Schengen cooperation at risk'. The said mechanism could encompass a safeguard clause that would allow 'the exceptional reintroduction of internal border controls in a truly critical situation where a member state is no longer able to comply with its obligations under the Schengen rules'.
The phrase 'reintroduction of internal borders' echoed in the Polish media. Journalists and human rights activists were vigorously expressing their concern, while politicians [did] their best to calm the public's anxieties. There were speculations concerning criteria that would be used in order to identify those who do not deserve the right to move freely around the EU.
The question of how to find non-Europeans was asked, and the obvious answer was that the route chosen by the Council will inevitably lead to discrimination. Some claimed that the tinkering with Schengen is nothing more than a smokescreen that is supposed to distract public opinion from the economic problems the EU is struggling with.
In this context of general anxiety it is important to clarify a couple of points. First of all, already now a temporary reintroduction of internal borders is possible. According to the Schengen Borders Code it is allowed for a member state to reintroduce border control at its internal borders for a limited period of time 'where there is a serious threat to public policy or internal security'. Just to give an example, in the period between 2006 and 2010 there were 23 instances of the reintroduction of border controls.
The proposed change would mean that now all member states would agree on the introduction of a specified mechanism towards another member state that failed to fulfill its Schengen obligations. At this stage it remains unclear how that would work in practice and it is the Commission's job to give [the] Council's idea a specific shape.
It seems that the entire turmoil around Schengen is a sign of deeper problems. A sign all the more disturbing [in] that its motivation runs counter to values the EU is based on and which it should promote. These include respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.
The solution proposed by the Council is in no respect a satisfactory answer to the lack of a common European asylum system, the inefficient evaluation mechanism Schengen is based on or [the] problems with integration of immigrants [that] the [whole of] Europe has been struggling with for years. At the same time, [the] current debate will be painfully felt by Bulgaria and Romania, whose participation in the Schengen zone has been postponed, despite these countries' fulfilling of all formal requirements and the consent of the European Parliament.
Concern caused by the recent proposals is therefore very well-founded. However, it should not spring from a particular nation's fear for the future of the freedom of movement, but the motivation behind the proposed attempt to reform Schengen. Motivation which in essence is a disquieting expression of the lack of ability to cope with a number of EU internal problems and external circumstances that shape the current geopolitical situation.
Mixed reactions which the proposal awakens in the European Parliament suggest that the vision of the restored passport control is not very realistic. According to the ALDE leader, Mr Guy Verhofstadt, 'the EP will never approve the proposed changes to the Schengen area rules, restricting passport free travel in cases of uncontrollable migratory flows'.
Conservatives are more cautious. In the opinion of the British MEP Timothy Kirkhope: 'The challenges we face in the present movement of people are really serious and they cannot be simply wished away with clichés… border controls must be maintained where necessary.'
At the same time it is difficult to predict whether the position of politicians will not change. In September, the European Commission will present a concrete proposal for the mechanism. Even if the EU institutions adopt a controversial piece of legislation, allowing border control on the basis of discriminatory criteria, incompatibility of such an act with the Charter of Fundamental Rights can be declared by the Court of Justice of the European Union (at this point it is worth recalling that Poland is still bound by the British protocol, which may limit application of the Charter…).
Moreover, when the EU becomes a party to the European Convention on Human Rights, the legality of discriminatory border control may be challenged by the European Court of Human Rights."
