The European Union’s home- affairs ministers have provoked a confrontation with the European Parliament and the European Commission over decision-making on the Schengen area of borderless travel. It is a dispute that seems destined to be argued over at the European Court of Justice (ECJ) because MEPs and the Commission accuse the member states of seeking to re-nationalise decision-making on Schengen.
The dispute is about the circumst-ances under which a national government could re-impose border controls inside the Schengen zone – as France threatened in 2011, when it saw refugees coming into Italy from the north African coast.
At a meeting in Luxembourg last Thursday (7 June), the home-affairs ministers took a decision that in emergencies national governments should be allowed to re-impose checks at internal Schengen borders for up to two years – without needing the consent of the Commission or the Parliament.
The Council meeting, which was chaired by Morten Bødskov, Denmark’s justice minister, agreed to a change in legal procedure that in effect cuts out the Parliament and the Commission from decision-making, a move that was seen as political provocation by MEPs and by the Commission, which had been responsible for initiating a proposal on how to evaluate member states’ compliance with the Schengen rules. Evaluation is a required first step on the way to the possible re-introduction of temporary border checks.
During a debate in the Parliament on Tuesday (12 June), the leaders of the main political groups announced that they would suspend co-operation with Denmark on justice and home affairs matters. Although Denmark’s presidency of the Council of Ministers runs until 30 June, Joseph Daul, the leader of the centre-right European People’s Party group, said that Denmark’s presidency had ended on the evening of 7 June.
He told a red-faced Bødskov, who had agreed to attend the debate: “By coming forward with this initiative, you have broken the relationship of trust with this Parliament. You have destroyed the community method.” His comments were echoed by Hannes Swoboda, leader of the Socialists and Democrats group, and by Guy Verhofstadt, the leader of the Alliance of Liberals and Democrats in Europe group.
National diplomats said that cutting out the Commission and the Parliament was a legal move that merely corrected the Commission’s error in making the initial proposal under a different article of the treaty. They said that the Council was not taking powers away from either the Commission or the Parliament; it was just giving them less power than the Commission had proposed.
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.”
Bødskov told MEPs that the member states had followed “very clear” advice from the Council of Ministers’ legal service. “This decision is a legal decision only, based on content not on politics,” he said. But the ministers were well aware that the move would not be seen as a mere technicality by MEPs.
The MEPs and the Commission interpreted the move as a bid to claw back some of the powers that the Council had shared since the advent of the EU’s Lisbon treaty, which came into effect in December 2009.
They admitted to being taken by surprise. Swoboda said that the Parliament’s legal service had not been consulted before the Council took its decision, because the idea had surfaced very late, at a meeting of the member states’ ambassadors last week.
In the immediate aftermath of the Council decision, Daul had called on Helle Thorning-Schmidt, Denmark’s centre-left prime minister, to go to Strasbourg to explain her thinking. In the event, it fell to Bødskov to defend the Council presidency.
Bødskov said: “It would be wrong to turn this into a struggle between Council and Parliament. Nothing could be more wrong and destructive because we all want this strengthened evaluation mechanism.”
Everyone on board
The MEPs were clearly upset that no member state had opposed the move, which would have been stopped if just one state had been prepared to vote against it. The Danish presidency managed to win round Romania, which had opposed the idea, but which is hoping to be allowed to join the Schengen area this autumn, after a year-long delay.
In a pre-emptive bid to appease the MEPs, the ministers had stressed that both the Commission and the Parliament would be more involved in managing the Schengen area than at present, albeit less than the Commission had proposed. But this failed to make an impression on MEPs.
“What the Council is doing here is simply not acceptable,” said Martin Schulz, the president of the Parliament.
Swoboda said the Parliament would be looking to challenge the move at the ECJ. It seems probable that until the judges rule, the current, inter-governmental system of evaluation will continue.
Even though the ministers’ decision does not require the Parliament’s consent, it was not made in legally binding form, to allow for informal consultations with the Parliament.
But with MEPs now threatening to hold up the entire justice and home- affairs area, the chances of such consultations appear slim. Officials said that there is some uncertainty over whether a referral to the ECJ is possible before the Council has acted in legally binding form.