Peter Hobbing is a former official of the European Commission (Justice & Home Affairs) and is an associate senior research fellow at the Centre for European Policy Studies in Brussels. He provided this commentary exclusively to EurActiv.
"The Danish episode of re-instating border controls in May lasted no more than 90 days, but it still tested how firmly attached we are to the highly valued freedom of movement in a borderless Europe.
Since 4 October, when the new Danish government revoked the measures taken by its predecessor in terms of customs houses, video surveillance and other permanent border devices, everything has seemed fine again.
But is it really? With the True Finns, Marie Le Pen, Vlaams Belang and other anti-immigrant movements on the rise, couldn’t similar scenarios arise elsewhere in the Union? If pension reforms or other national priorities are at stake, even smaller right-wing parties may be able to impose their border concepts on governments run by mainstream parties.
And yet, the post-Denmark situation is slightly different to what we encountered in May, when Brussels seemed caught on the wrong foot by the unprecedented and straightforward challenge to established liberties and its reactions appeared somewhat hesitant and delayed, especially the sudden switch to the customs regulation as the alleged legal basis helped the Danish to dodge any immediate retaliation. By now we have learned our lessons and checked the legal context, so any similar plots could be countered with the appropriate legal and argumentative tools right from the start. These lessons are:
Lesson No. 1 is that the EU Treaty language is clear: it does not tolerate any systematic controls at internal borders between member states and it does not accept substitutes either. The Schengen Borders Code (2006) firmly excludes spot checks under general police law taking place right on the border or close to it, if designed as “equivalent to the exercise of border checks”. And the Danish argument of their selective controls not being “systematic” was not convincing, as any modern control strategy would rely on such selectivity.
Lesson No. 2 tells us that the customs regulation is by no means less stringent than Schengen. On the contrary, the common customs territory – being the trade-oriented nucleus of the Union and predecessor of both the Single Market and the Schengen area – relied to such an extent on the free movement of commodities that it just could not afford any exceptions to the rule. The trade and profit-oriented discussions of the 1980s (especially the 200 billion ECU argument of the Cecchini report) set the tome for ensuring that the unconditional opening of borders left no more room for national discretion.
Under Lesson No. 3, one would pay due attention to the revealing discrepancies between the arguments and facts employed to support the border closure. It is striking that the Danish authorities justified customs-based measures with non-customs arguments (to “stop economic migrants” and “brutal criminality”), while the measures taken appeared inconsistent with the objectives pursued (could the export of stolen goods be tackled by mere import controls?). The apparent disconnect with the current security discourse in border matters indicated that it was not really crime-combating concerns that had dictated the move, but other motives in the sense of passing a message on to foreigners in general.
Lesson No. 4 would shift the focus from Denmark to the European context in general. There is unrest in other parts of the EU as well, as seen in the recent Franco–Italian affair on migrants from North Africa. Beyond populist agitation, such incidents have their origin also in the inconsistent management of the external border as caused by the multitude of national authorities involved.
The EU would do well to intensify its efforts to streamline border practices towards a more coherent EU-wide approach. The goal of ‘Europeanising’ border controls, as set by the European Commission in Communication COM(2011) 561 final, is a good one and should be pursued with utmost urgency. Further support is definitely needed to develop appropriate tools to reduce migratory pressure on European borders, such as the new circular migration schemes in the framework of EU neighbourhood strategies."