Disputed borders

What will change

Under the version of the Schengen rules adopted by home-affairs ministers last Thursday (7 June), evaluations of how national authorities are meeting the requirements of the EU's area of borderless travel are to be co-chaired by a representative of a member state and an expert from the European Commission. The Commission had proposed giving the Commission the leadership role. At present, evaluations are carried out as ‘peer reviews' among member states.

The ministers also rejected the Commission's demand for a role in deciding whether to re-impose checks at internal borders in emergencies. Such decisions are to be taken on the basis of an initial evaluation and a follow-up evaluation that has to take place within three months. Border checks can as a last resort (following a defined sequence of alternative policy responses) be re-instated for up to two years by a decision of the member states, voting with a weighted majority – without any decision-making role for either Commission or the European Parliament.

The legal basis

The European Commission based its initial proposal of 2011 on Article 77 of the Lisbon treaty. The article states that the Union will develop a policy with a view to “ensuring the absence of any controls on persons...when crossing internal borders”. It says that the European Parliament and the Council, using the standard co-decision procedure...“shall adopt measures concerning...the absence of any controls on persons”.

The legal services of the Council of Ministers argues that the proper legal basis is Article 70, which says that the Council may, on a proposal from the Commission, adopt measures laying down arrangements for member states “in collaboration with the Commission” to “conduct objective and impartial evaluation of the implementation of Union policies”.

It concludes: “The European Parliament and national parliaments shall be informed of the content and results of the evaluation.”