The Commission has put forward a proposal for improving the institutional framework of the Schengen area. First, the Commission proposes a strengthening of the Schengen evaluation mechanism. Announced and unannounced monitoring visits to a given Member State by Commission-led teams with experts from other Member States and Frontex will verify the application of the Schengen rules. Second, the Commission tackles the problem of unilateral reintroduction of borders. Such a decision for the reintroduction of internal border controls for foreseeable events (such as an important sporting event or a major political meeting) would be taken at the European level on the basis of a proposal by the European Commission backed by a ‘qualified majority’ of Member States’ experts. If a Member State fails to adequately protect a part of the EU’s external border, support measures including technical and financial support from the Commission, from Member States, from FRONTEX or other agencies like Europol or the European Asylum Support Office (EASO), can be taken.
The proposed measures are a big step forward for the European border security policy. However, a few Member States have already expressed skepticism, citing the national sovereignty as the main reason. They seem to have forgotten the very poor response of France and Italy to the wave of sea-borne migrants due to the Arab Spring revolutions in North Africa.
It will be very interesting to observe the debate on the Commission proposals, since border security is one of the factors that will define the viability of the European project.
France and Italy have signaled their desire to push for a reform of the Schengen framework for border control. One of the most important proposals is the procedural right to temporarily re-establish border controls between two countries. The European Commission is scheduled to present its own plans for amending the Schengen rules next week (4 May).
The Schengen border security legal framework is now part of the EU acquis. Any revision of the Schengen framework goes through a codecision procedure, where the European Parliament is a co-legislator with the Council (see art. 77, para. 2 TFEU). More, the Commission is the only body that can propose legislation on border checks, asylum and immigration (see a contrario art. 76 TFEU). Whatever France and Italy propose is of no relevance; the Member States do not have a right of initiative on these matters.
On all these accounts I am quite skeptical that Italy and France will succeed to push an amendment of the Schengen framework that seriously undermines the principles of the current regime. Any significant policy overhaul must be accompanied by a careful impact assessment and discussions not only among governments of Member States, but also with relevant stakeholders. It will take more than a bilateral summit to do that.
The new set of reports under the Cooperation and Verification Mechanism (CVM) for Bulgaria and Romania were published by the Commission. The mechanism is used by the Commission to monitor the progress of both countries in the fields of judicial reform, corruption and organised crime. But does the mechanism matter?
It’s difficult to say. The CVM was an instrument used to extend conditionality beyond the accession date for Bulgaria and Romania. For three years after the accession the EU could impose safeguard clauses, including a specific safeguard clause in the area of justice and home affairs (art. 36 of the Accession Treaty). However, this period has expired. It the strict sense of the word CVM is no longer a conditionality instrument. Eli Gateva has written a very good paper on this, explaining that the absence of accession rewards combined with toothless explicit threats for sanctioning non-compliance produce very weak negative incentive structure.
On the other hand both the Bulgarian and Romanian governments pay attention to the recommendations in the reports and at least try to act on them. One reason for this can be the difficulty of acceding to the Schengen area. Both France and Germany have linked the two issues, although they are not legally dependent. So one may argue that the accession to the Schengen area is now a new conditionality tool, used to push reforms of the judiciary in Bulgaria and Romania.
There is also another interpretation – that “old” Member States have given up hope of achieving effective structural reforms of the judiciary in Bulgaria and Romania, and are trying to mitigate the damage by denying access to the Schengen area. This strategy will fail. Neglecting the structural deficits of law enforcement and the judiciary in Bulgaria and Romania can have wide-ranging implications for the whole European Union. It is not possible to “isolate” both countries in some sort of a triage. Their weaknesses impact negatively the overall security of the EU, and of the separate Member States.
That is why the CVM is still useful – at least as an instrument for diagnosis.
Posted in Bulgaria, Justice and Internal Affairs
Tagged Bulgaria, Cooperation and Verification Mechanism, Corruption, France, Germany, judiciary, law enforcement, organized crime, Romania, Schengen
The news that Italy and Malta are pressing for special summits to deal with the “epic emergency” immigration resulting from the upheaval in North Africa did not surprise me. Back in 2009 I wrote to the Reflection Group on the Future of Europe 2020-2030, proposing a specific initiative for a common EU border security policy using the instruments of the Lisbon Treaty. I developed my arguments in an article that I presented at a UACES conference in the beginning of 2010, and it was published in the journal European Security.
My argument was that:
1. EU border security is not effective enough due to uneven policy implementation, and
2. Future challenges and threats may overwhelm the present institutional setting.
I went on to discuss some of the challenges based on the assumption of fundamental factors affecting human security – the changing climate (Stern 2007) and the global demographic trends (Lee 2003). I outlined a number of impending threats and concluded that the development of a true common European border security policy is urgently needed in order to develop and implement adequate holistic solutions for mitigating those threats. Sergio Carrera from CEPS has written an excellent paper on the possible creation of a common European border security service.
Now, it is true that some Member States have their own views about border security. But a strategic review of the EU’s border security policy is obviously and urgently needed. It may or may not result in a common border security service, as Carrera proposes. But it should create a comprehensive action plan that goes much beyond technological standards and ad hoc assistance.
If my analysis is even partially correct, there is no time to lose.
France and Germany have officially announced that they will block the accession of Bulgaria and Romania to the Schengen area, Euractiv reports. The main deficiencies in both countries that they outline are the absence of a satisfactory juridical and administrative environment in the fields of security and justice, persisting corruption at different levels and worrying levels of organised crime.
This letter does not come as a surprise to this blogger. I have time and again noted that both Bulgaria and Romania are facing significant challenges in the reform of the judiciary and the fight against corruption and organized crime. Two questions, however, linger on.
The first question is whether Bulgaria and Romania were fit to become Member States in 2007. The European Commission believed so, and so did France and Germany at the time. However, this leads to the logical conclusion that both countries in fact experienced a deterioration of the rule of law since accession.
The second question is whether Bulgaria and Romania can actually, at any point in the future, join the Schengen area. This is not an absurd question, since if separate Member States reaffirm their right of individual assessment of the quality of the judicial systems of candidates, it may turn out that both Bulgaria and Romania are assessed against unachievable standards that surpass the present level of rule of law in the Schengen area. Again, this is a logically derived possibility.
France and Germany should understand that answering both questions will have its consequences for the level of solidarity and cohesion in the European Union.
Posted in Enlargement, Institutional Affairs, Justice and Internal Affairs
Tagged accession, Bulgaria, Corruption, France, Germany, organised crime, Romania, rule of law, Schengen
Regulation (EC) No 810/2009 establishing a Community Code on Visas (Visa Code) has been published in the Official Journal.
The regulation establishes the procedures and conditions for issuing visas for transit and stays in the territory of the Member States not exceeding three months in any six-month period.
The Visa Code applies from 5 April 2010.
The European Commission has adopted a proposal for granting visa free travel to the citizens of Macedonia, Montenegro and Serbia. The proposal enables the citizens of these three countries to travel to the Schengen countries with the new biometric passports. The Commission’s proposal needs to be approved by the Council after having consulted the European Parliament.
A critique from an interesting angle to this proposal is that the consequence of offering visa-free travel to the three Western Balkan countries will penalize Muslim Bosniaks and the citizens of Kosovo. The claim is by the Young European Federalists. Strangely enough, they failed to recognize that Turkey is a candidate for membership, too.