According to the Commission, the new rules take the lessons learned during the Covid-19 pandemic in reference to travel restrictions, border closures, and other restrictions on the freedom of movement inside of the Schengen Area.
In actuality, the new rules give Member States expanded power to impose longer and stricter internal border controls on other Member States.
After many Member States have abolished, reintroduced, and sustained travel restrictions with other Member States since March 2020 and the growing humanitarian crisis on Poland’s border with Belarus, the Commission has finally addressed this issue, but not in the way that many would have hoped for.
The question now is, to what extent is the Commission proposing that Member States can go against the fundamental values of the Schengen Agreement? Schengen-Visa.com will try to answer this question in the paragraphs following.
The Current Schengen Rules for Travel Restrictions
There are currently two articles of the Schengen Agreement that can be used to introduce border closures, internal border controls, and travel restrictions on other Schengen Member States:
Article 28: In cases requiring immediate action, Member States can introduce temporary border controls on other Member States for a limited period of up to 10 days. This measure can be extended to 20 days and for a maximum total of two months.
Article 25: In situations that are foreseeable, Member States can impose internal border controls for an initial period of 30 days, with a maximum renewal period of 6 months.
The Proposed Changes to the Schengen Rules
Most notably, the new proposed changes facilitate longer periods of internal border controls and closures. These include:
Unforeseen events: Under the new rules, Member States can impose border controls for an initial period of up to 30 days, with a maximum renewable period of three months.
Under the old rules, Article 28 only allows a Member State to enact internal border controls for unforeseen events for 10 days, renewable to 20, with a maximum extension period of two months.
By extending the initial period from 10 to 30 days for unforeseen events, the Commission is proposing to triple the power of individual Member States to impose internal border controls.
Foreseeable events: The new rules would allow Member States to impose internal border controls for an initial period of 6 months, with the ability to extend these controls for a maximum of two years.
However, in “exceptional situations,” Member States can decide that “border controls need to be maintained longer” than two years.
The old rules under Article 25 allow a Member State to impose internal border controls for an initial period of 30 days with a maximum extension period of 6 months. The initial period for these new rules has been expanded by a multiple of 6, with the maximum period being quadrupled without extension.
More Notifications, Safeguards, Mitigating Measures, and a Possible Coordinated Resonse
On a positive note, the Commission proposes requiring Member states to give more detailed notifications when imposing internal border controls as well as requiring that Member States justify why their border controls are being imposed and/or prolonged.
The Commission is also proposing that Member States take more risk mitigation measures before imposing border controls.
Finally, the Commission proposes creating a system that would force Member States to assess with the Union whether their response is proportionate to the threat and create a more coordinated response when measures are needed. This, however, is something that to date has not been observed to have even been attempted at any point since March 2020.
In Spring and Summer 2020, European countries started imposing blanket travel bans and other harsh restrictions on the freedom of movement despite the core value of the Schengen Area being to facilitate freedom of movement. French President Emmanuel Macron called it “the death of Schengen.”
Was Macron correct?