Camino Mortera-Martinez / Oct 2020
Ever since the EU’s members began closing their borders to contain transmission of the novel SARS-CoV-2 virus, many have heralded Schengen’s demise. But the EU’s borderless area is more resilient than it may appear. This is because Schengen was devised with the idea that man-made problems or natural catastrophes will happen and that member countries may sometimes need to close their borders. Few people have paid attention to the effects the pandemic may have on Europe’s single market. And yet, while Schengen will survive its umpteenth crisis, the internal market may not. Or at least it will look different than it does today.
The pandemic has led to three very different, and unequally complex, problems for the EU. First, member-states have restored passport checks; second, the EU as a whole has issued a travel ban for non-EU citizens; and third, EU countries have imposed quarantines or refused entry to fellow European citizens. The first two problems relate to Europe’s border-free area of Schengen and are comparatively less serious. The third touches upon the heart of the EU’s internal market and may inflict longer-lasting damage on Europe.
At the peak of the pandemic, internal border controls were inevitable. Whereas there is mixed scientific evidence on the effect of protracted travel restrictions on curbing transmission, it would have been a tough political sell to demand that member-states keep their frontiers open while requiring their residents to stay at home. Schengen’s governing law, the Schengen Borders Code (SBC), allows for such restrictions, although they have to be temporary. But member-states have been clumsy and at times inconsistent in their use of the rules. At the time of writing, eight member-states still have border controls in place. All countries have exceeded the deadline for when they had to end border checks; many had no legal justification to begin with.
Because there is no central Schengen authority with direct enforcement competences, the Commission has very little power to ensure Schengen countries comply with the law. It can bring them to court, which it has understandably not done in the midst of the pandemic. But closing and opening borders seemingly at random creates uncertainty for citizens and business. The EU needs to streamline internal border controls, if they are needed to contain second or third waves of COVID-19. For that, the Commission should make sure countries co-ordinate their border closures with one another, as per a recent Franco-German initiative, which focuses on facilitating regular contact between border authorities.
If the European Commission has been unable, or unwilling, to call member countries to order, it may be because it is finding it difficult to navigate coronavirus politics. Only four days after criticising Donald Trump for imposing a travel ban on Schengen countries, the Commission “invited” member-states to stop non-European citizens who do not permanently reside in the EU from entering the Schengen area. The Commission has no competences to shut access to the Schengen area. Nor has it ever asked member-states to close the bloc’s external borders. The SBC allows member countries to deny entry to non-European citizens for public health reasons. But it does not provide for a blanket entry ban. Here, too, co-ordination is vital. The EU institutions cannot and should not police Schengen’s external borders. But they can help Schengen’s functioning by avoiding heat-of-the-moment decisions and making sure that they follow their own rules.
A more serious problem is that, with their travel restrictions, member-states have virtually stopped the free movement of people within the EU. The EU’s citizens’ directive allows countries to exceptionally limit the free movement of Europeans if the World Health Organisation declares a pandemic. But restrictions have been uneven and, at times, arbitrary. To put an end to this, the EU is asking member-states to use a traffic light system based on numbers and percentage of COVID-19 positive cases to apply, or lift, limits on the free movement of people. If member-states do not set clear criteria soon, the current restrictions may persist for longer than necessary, threatening the functioning of the EU’s single market. Curbing the free movement of people also seemingly echoes the idea that foreigners bring problems home, fuelling nativism and populism.
The pandemic will not be the end of Schengen. But it threatens to further erode member-states’ trust in each other’s governments, citizens, and their ability to deal with crises, be they health-, migration- or economy-related. Mutual trust is the single most important element of European cohesion. Without it, the single market could unravel.