the principle of proportionality in exceptions to the...

The principle of proportionality in exceptions to the abolition of

internal border control in the EU

University of Eastern Finland

UEF Law School

Master‟s thesis

12.08.2017

Samu Pätilä, 264101

Supervisor: Kim Talus

II

Abstract UNIVERSITY OF EASTERN FINLAND

Faculty

Faculty of Social Sciences and Business Studies

Department

Law School

Author

Samu Pätilä

Title

The principle of proportionality in exceptions to the abolition of internal border control

in the EU

Major subject

European Union Law

Work type

Master’s thesis

Time

Autumn

2017

Pages

XIII+66

Abstract

The migratory crisis of 2015 created an unforeseen challenge for the Schengen system. As a

response to serious threats to public policy and internal security, temporary border controls at

the internal borders of eight Member States were reintroduced in accordance with the

Schengen Borders Code (SBC) Articles 23–26. Meanwhile, the Netherlands opted to intensify

checks within the territory, with the purpose of migration control, in accordance with Article

21 SBC and leaving a question of what was the difference between these two measures.

The principle of proportionality limits the application of Articles 23–26 SBC, but it is not

included in SBC Article 21. Proportionality can still restrict checks within the territory at

national level, if the application of Article 21 in the Member States‟ legislation is pushed too

far. Assessing these measures is hindered by the fact that there is no uniform way for

measuring proportionality in the EU.

The Commission considered temporary border controls a legitimate and proportionate response

to large migratory flows, even though in 2013 the EU legislator disagreed with this view. At

the same time, national courts in the Netherlands disagreed on the legality of intensified

internal controls, as their grounds for justification were left unclear.

When border control and immigration control are entwined and criminalising illegal entry of

migrants is becoming more common, the EU should redefine the rules on the exceptions to the

abolition of internal border control in order to maintain legitimate and non-discriminatory

controls at the internal borders and to prevent the abuse of loopholes in the SBC.

Key words

Schengen area, border control, checks within the territory, proportionality

III

Tiivistelmä ITÄ-SUOMEN YLIOPISTO

Tiedekunta

Yhteiskuntatieteiden ja kauppatieteiden tiedekunta

Yksikkö

Oikeustieteiden laitos

Tekijä

Samu Pätilä

Työn nimi

Suhteellisuusperiaate Schengen-alueen sisärajojen rajavalvonnan palauttamisessa

Pääaine

Eurooppaoikeus

Työn laji

Pro gradu-tutkielma

Aika

Syksy

2017

Sivuja

XIII+66

Tiivistelmä

Vuoden 2015 siirtolaiskriisi loi ennenäkemättömän haasteen Schengen-alueelle. Vastauksena

yleiseen järjestykseen ja sisäiseen turvallisuuteen kohdistuneisiin uhkiin, väliaikainen

rajavalvonta palautettiin kahdeksassa jäsenvaltiossa Schengenin rajasäännöstön artikloiden 23–

26 mukaisesti. Samaan aikaan Alankomaat tehosti alueen sisällä tehtäviä tarkastuksia

maahanmuuton kontrolloimiseksi rajasäännöstön artiklan 21 mukaisesti, herättäen kysymyksen

näiden kahden toimenpiteen eroista.

Suhteellisuusperiaate rajoittaa rajasäännöstön artikloiden 23–26 toimeenpanoa, mutta se ei ole

läsnä artiklassa 21. Suhteellisuusperiaate voi silti olla rajoittava tekijä alueen sisällä tehtävissä

tarkastuksissa, jos artiklan 21 soveltaminen viedään kansallisessa lainsäädännössä liian

pitkälle. Näiden toimenpiteiden arvioimista vaikeuttaa se, että sen suhteellisuuden

mittaamiselle ei ole yhtä selkeää menetelmää EU:ssa.

Euroopan komissio totesi väliaikaisen rajavalvonnan olevan lainmukainen ja sopusuhtainen

vastaus suuriin siirtolaisvirtoihin, vaikka vuonna 2013 EU lainsäätäjä ei hyväksynyt tätä

näkökantaa. Samanaikaisesti Alankomaiden kansalliset tuomioistuimet olivat eri mieltä

tehostettujen tarkastusten laillisuudesta epäselvien oikeusperusteiden takia.

Kun rajavalvonta ja maahanmuuton kontrollointi alkavat muistuttaa toisiaan ja maahanmuuton

kriminalisointi yleistyy, EU:n pitäisi määritellä uudelleen sisärajojen valvonnan palauttamista

koskevat säännöt, taatakseen laillisen ja syrjimättömän valvonnan sisärajoilla ja estääkseen

rajasäännöstön porsaanreikien hyödyntämisen.

Avainsanat

Schengen alue, rajavalvonta, alueen sisällä tehtävät tarkastukset, suhteellisuusperiaate

IV

TABLE OF CONTENTS

ABBREVIATIONS ............................................................................................................. V

BIBLIOGRAPHY .............................................................................................................. VI

1 INTRODUCTION ............................................................................................................ 1

1.1 Framework: Schengen borders in a time of crisis ....................................................... 1

1.2 Research question, methodology and structure ........................................................... 7

2 BORDERLESS EUROPE .............................................................................................. 11

2.1 Schengen area and cooperation ................................................................................. 11

2.2 Schengen Borders Code............................................................................................. 14

2.2.1 Checks within the territory: Article 21 SBC ...................................................... 15

2.2.2 Temporary reintroduction of internal border control: Articles 23–26 SBC ....... 21

3 PROPORTIONALITY AND INTERNAL BORDER CONTROL ........................... 25

3.1 General principle of proportionality .......................................................................... 25

3.2 Proportionality in the Schengen Borders Code ......................................................... 29

3.2.1 Proportionality in temporary reintroduction of border control ........................... 30

3.2.2 Proportionality in checks within the territory ..................................................... 34

4 MANAGING INTERNAL BORDERS IN TIMES OF CRISIS ................................ 39

4.1 Effects of the migratory crisis ................................................................................... 39

4.2 Reintroduction of temporary border control in 2015................................................. 41

4.2.1 Prolongation of temporary border controls ........................................................ 45

4.2.2 Commission opinion on the German and Austrian measures............................. 48

4.3 Intensified checks within the territory in the Netherlands ......................................... 50

4.4 Migratory flows as justification ................................................................................. 54

4.4.1 Changes in the concept of asylum ...................................................................... 54

4.4.2 Expansion of migration control .......................................................................... 56

5 CONCLUSION ............................................................................................................... 61

V

ABBREVIATIONS

AG Advocate General

CISA Convention Implementing the Schengen

Agreement

CJEU, the Court Court of Justice of the European Union

Commission, COM European Commission

Council Council of the European Union

ECJ European Court of Justice

EU European Union

Frontex European Border and Coast Guard Agency

MSM Mobile Security Monitor (Mobiel Toezicht

Veiligheid)

SBC Regulation (EC) No 562/2006 of the European

Parliament and of the Council of 15 March 2006

establishing a Community Code on the rules

governing the movement of persons across

borders (Schengen Borders Code)

SIS Schengen Information System

TCN Third country national

TEU Treaty on European Union

TFEU Treaty on the Functioning of the European Union

US United States of America

VI

BIBLIOGRAPHY

LITERATURE

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VII

Guild, Elspeth – Brouwer, Evelien – Groenendijk, Kees – Carrera, Sergio: What is

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Peers, Steve: The Future of the Schengen System. SIEPS 2013.

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VIII

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Singh Bhui, Hindpal: Humanizing Migration Control and Detention. In Franko Aas, Katja

and Bosworth, Mary (Eds.): The Borders of Punishment: Migration, Citizenship and Social

Exclusion. Oxford University Press 2013, pp. 1-21.

Spencer, John R: EU Criminal Law. In Bernard, Catherine and Peers, Steve (Eds.):

European Union law. Oxford University Press 2014, pp. 751-777.

Thym, Daniel: Legal Framework for Entry and Border Controls. In Hailbronner, Kay and

Thym, Daniel (Eds.): EU Immigration and Asylum Law. Commentary, 2nd edition (C.H.

Beck/Hart/Nomos, 2016), pp. 31-52.

Tridimas, Takis: The general principles of EU law. Oxford University Press 2006.

Weber, Leanne: Policing Non-Citizens. Routledge 2013.

Zaiotti, Ruben: Cultures of Border Control. The University of Chicago Press 2011.

Zedner, Lucia: Is the Criminal Law Only for Citizens? A Problem at the Borders of

Punishment. In Franko Aas, Katja and Bosworth, Mary (Eds.): The Borders of

Punishment: Migration, Citizenship and Social Exclusion. Oxford University Press 2013,

pp. 40-58.

Articles

Campesi, Giuseppe: The Arab Spring and the Crisis of the European Border Regime:

Manufacturing Emergency in the Lampedusa Crisis. European University Institute (2011),

EUI Working Paper RSCAS 2011/59. Available online:

[https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2481918]

Gibbs, Alun Howard: Reasoned „Balance‟ in Europe‟s Area of

Freedom, Security and Justice. European Law Journal (2011), Vol, 17, No. 1, pp. 121-137.

Greenhill, Kelly M: Open Arms Behind Barred Doors: Fear, Hypocrisy and Policy

Schizophrenia in the European Migration Crisis. European Law Journal (2016), Vol. 22,

No. 3, pp. 317–332.

Jorgensen, Carsten – Sorensen, Karsten: Internal border controls in the European Union:

recent challenges and reforms. European Law Review (2012), 37(3), pp. 249-268.

Kaca, Elżbieta: Schengen‟s Future in Light of the Refugee Crisis. PISM (2016) No. 2 (83).

IX

McCreight, Matilde Ventrella: Smuggling of Migrants, Trafficking in Human Beings and

Irregular Migration on a Comparative Perspective. European Law Journal (2006), Vol. 12,

No. 1, pp. 106-129.

Menéndez, Agustín José: The Refugee Crisis: Between Human Tragedy and Symptom of

the Structural Crisis of European Integration. European Law Journal (2016), Vol. 22, No.

4, pp. 388–416.

Romano, Andrea: Schengen at the Crossroads Between Dublin‟s Failure and the Rising

Populism in the EU. Constitutional and Political Scenarios in the Context of the Current

Refugee Crisis. Institute of European Democrats (2016). Research project: Migration,

borders control and solidarity: Schengen at stake? Available online:

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Union? Main Features, Deficiencies and Challenges of the new Mobility Rights in the Area

of Freedom, Security and Justice. European Law Journal (2009), Vol. 15, No. 6, 791–805.

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LEGISLATION

Primary legal sources

UN Convention Relating to the Status of Refugees 1951. Geneva, 28.7.1951.

Convention Implementing the Schengen Agreement of 14 June 1985 between the

Governments of the States of the Benelux Economic Union, the Federal Republic of

Germany and the French Republic on the gradual abolition of checks at their common

borders, Official Journal L 239 , 22.9.2000, pp. 19-62.

Charter of Fundamental Rights of the European Union. Official Journal C 364, 18.12.2000,

pp. 1-22.

Treaty Establishing the European Community. Official Journal C 325, 24.12.2002, pp. 33-

184.

Consolidated version of the Treaty on the Functioning of the European Union. Official

Journal C 202. 7.6.2016, pp. 47-199.

Consolidated version of the Treaty on European Union, Official Journal C 202, 7.6.2016,

pp. 13-45.

X

Secondary legal sources

Council Directive 88/146/EEC of 7 March 1988 prohibiting the use in livestock farming of

certain substances having a hormonal action. Official Journal L 70, 16.3.1988, pp. 16–18.

Joint Action of 24 February 1997 adopted by the Council on the basis of Article K.3 of the

Treaty on European Union concerning action to combat trafficking in human beings and

sexual exploitation of children. Official Journal L 63, 4.3.1997, pp. 2-6.

Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March

2006 establishing a Community Code on the rules governing the movement of persons

across borders (Schengen Borders Code). Official Journal L 105, 13.4.2006, pp. 1-32.

Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June

2013 establishing the criteria and mechanisms for determining the Member State

responsible for examining an application for international protection lodged in one of the

Member States by a third-country national or a stateless person. Official Journal L 180,

29.6.2013, pp. 31–59.

Regulation (EU) No 1051/2013 of the European Parliament and the Council of 22 October

2013 amending Regulation (EC) No 562/2006 in order to provide for common rules on the

temporary reintroduction of border control at internal borders in exceptional

circumstances. Official Journal L 295, 6.11.2013, pp. 1-10.

Netherlands

Netherlands Aliens Act 2000.

OFFICIAL SOURCES

European Union documents

European Commission. Scientific Report on the Mobility of Cross-Border Workers within

the EU-27/EEA/EFTA Countries. European Commission DG Employment and Social

Affairs January 2009.

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application of Title III (Internal Borders) of Regulation (EC) No 562/2006 establishing a

Community Code on the rules governing the movement of persons across borders

(Schengen Borders Code), COM(2010) 554 final, 13.10.2010.

Communication from the Commission to the European Parliament, the Council, the

European Economic and Social Committee and the Committee of the Regions, Schengen

governance - strengthening the area without internal border control, COM(2011) 561, 16.9.

2011.

Council adopts the Schengen Governance legislative package. 14441/13, 7.10.2013.

Temporary reintroduction of border controls at the German internal borders in accordance

with Article 25 of Regulation (EC) No 562/2006 establishing a Community Code on the

XI

rules governing the movement of persons across borders (Schengen Borders Code),

11986/15, 14.9.2015.

Temporary reintroduction of border controls at the Austrian internal borders in accordance

with Article 25 of Regulation (EC) No 562/2006 establishing a Community Code on the

rules governing the movement of persons across borders (Schengen Borders Code),

12110/15, 17.9.2015.

Temporary reintroduction of border controls at the Slovenian internal borders in

accordance with Article 25 of Regulation (EC) No 562/2006 establishing a Community

Code on the rules governing the movement of persons across borders (Schengen Borders

Code), 12111/15, 17.9.2015.

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borders reintroduced by Germany and Austria, pursuant to Article 24(4) of Regulation No

562/2006 (Schengen Borders Code), C(2015) 7100 final. 23.10.2015.

Temporary reintroduction of border controls at the Swedish internal borders in accordance

with Article 23 and 25 of Regulation (EC) 562/2006 establishing a Community Code on

the rules governing the movement of persons across border (Schengen Borders Code),

14047/15, 12.11.2015.

Prolongation of the temporary reintroduction of border controls at the Norwegian internal

borders in accordance with Article 25 of Regulation (EC) 562/2006 establishing a

Community Code on the rules governing the movement of persons across borders

(Schengen Borders Code), 14996/15, 4.12.2015.

Communication from the Commission to the European Parliament and the Council, Eighth

biannual report on the functioning of the Schengen area, COM(2015) 675, 15.12.2015

European Parliament‟s Policy Department for Citizen‟s Rights and Constitutional Affairs:

Internal border controls in the Schengen area: is Schengen crisis-proof? 2016. Available

online [http://www.europarl.europa.eu/supporting-analyses]

Frontex risk analysis unit: Risk Analysis for 2016.

Communication from the Commission to the European Parliament, the European Council

and the Council, Back to Schengen – A Roadmap. COM(2016) 120 final, 4.3.2016.

Council Implementing Decision setting out a Recommendation for temporary internal

border control in exceptional circumstances putting the overall functioning of the

Schengen area at risk. 8835/16, 12.5.2016.

European Parliament. Briefing EU Legislation in Progress July 2016: Smart Borders: EU

Entry/Exit System.

XII

INTERNET SOURCES

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XIII

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CASE LAW

The Court of Justice of the European Union

C-331/88 The Queen v Minister of Agriculture, Fisheries and Food and Secretary of State

for Health, ex parte: Fedesa and others, [1988], ECLI:EU:C:1990:391

C-331/88 The Queen v Minister of Agriculture, Fisheries and Food and Secretary of State

for Health, ex parte: Fedesa and others, [1988], ECLI:EU:C:1990:391, Opinion of Mr

Advocate General Mischo.

C-312/89 & Case C-332/89 Joined opinion of Advocate General van Gerven, [1990],

ECLI:EU:C:1990:418

C-169/91 Council of the City of Stoke-on-Trent and Norwich City Council v B & Q plc.,

[1992], ECLI:EU:C:1992:519

C-169/91 Council of the City of Stoke-on-Trent and Norwich City Council v B & Q plc.,

[1992], ECLI:EU:C:1992:519, Opinion of Advocate General Fennelly.

C-120/94 Commission of the European Communities v Hellenic Republic, [1996],

ECLI:EU:C:1996:116, Opinion of Advocate General Jacbobs.

Joined cases C-188/10 and C-189/10 Aziz Melki and Sélim Abdeli, [2010],

ECLI:EU:C:2010:363

Joined cases C-188/10 and C-189/10 Aziz Melki and Sélim Abdeli, [2010],

ECLI:EU:C:2010:319, View of Advocate General Mazák.

C-278/12 A. Adil v Minister voor Immigratie, Integratie en Asiel, [2012],

ECLI:EU:C:2012:508

C-9/16 Request for a preliminary ruling in Amtsgericht Kehl v A lodged on 7 January

2016. Official Journal C 136, 18.4.2016, pp. 8-9.

1

1 INTRODUCTION

1.1 Framework: Schengen borders in a time of crisis

In 2015 more than one million migrants entered the European Union (EU) fleeing from

conflicts in their home regions and seeking protection, marking the beginning of the so

called migratory crisis of 2015.1 During 2015, the European Border and Coast Guard

Agency (Frontex) reported over 1.82 million detections of illegal border crossings along

the external borders of the Schengen area, over six times more than in the previous year,

creating immense pressure on the management of the external borders.2 Europe was now

facing the largest migratory crisis since the Second World War, as uncontrolled migratory

flows shook the foundations of the modern Schengen system, which is one of the key

achievements of European integration.3

The majority of the illegal border crossings in 2015 were detected on the Eastern

Mediterranean route between Turkey and the Greek islands,4 making Greece and Italy

particularly affected by the migratory flows.5 Greece and Italy were troubled, because as

Member States of first entry for large numbers of migrants, they were obliged by the

Dublin III Regulation6 to register all applicants for international protection entering their

territory and to provide them reception conditions acceptable under EU law as well as

fundamental rights.7

In 2015, The European Asylum Support Office reported over 1.35 million registered

asylum applications, which was the highest number recorded since the collection of this

data began in 2008.8 Due to the excessive migratory pressure, registering all asylum

1 Greenhill 2016, “Open Arms Behind Barred Doors: Fear, Hypocrisy and Policy Schizophrenia in the

European Migration Crisis”, European Law Journal (2016), p. 317. 2 Frontex 2016, “Risk Analysis for 2016”, p. 16.

3 European Commission 2016, Communication from the Commission to the European Parliament, the

European Council and the Council: Back to Schengen – A Roadmap, COM(2016) 120 final, 4.3.2016, p. 2.

[Later European Commission, COM(2016) 120 final]. 4 Frontex 2016, p. 18.

5 Greenhill 2016, p. 319.

6 Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing

the criteria and mechanisms for determining the Member State responsible for examining an application for

international protection lodged in one of the Member States by a third-country national or a stateless person.

Official Journal L 180, 29.6.2013, pp. 31–59. [Later Dublin Regulation]. 7 European Commission, Eighth biannual report on the functioning of the Schengen area, COM(2015) 675,

15.12.2015, p. 5. [Later European Commission, COM(2015) 675]. 8 Frontex 2016, p. 30.

2

seekers in Greece and Italy resulted in a failure. Separation between legitimate asylum

seekers and so called economic migrants could no longer be made, creating a possibility

for unwanted persons to enter into the European territory.9 As the rules of the Dublin

system could no longer be obeyed, uncontrolled migratory flows at the external borders

shifted to secondary movements of migrants inside the Schengen area, when registered and

unregistered migrants continued their way into Europe and the Member States of their

choice.10

The secondary movements of migrants were enabled by the ideal of a borderless Europe,

created by the modern Schengen system. The Schengen Agreement in 1995 was a big step

for the free movement of persons, as it created the concept of external and internal

Schengen borders by removing the need for visa or passport checks when crossing the

internal borders of Schengen States, concentrating border controls on the external border.11

The Schengen agreement did not only benefit EU citizens, but it also developed short stay

conditions for third country nationals (TCN), granting the right of free movement to all

persons inside the Schengen area regardless of nationality.12

This freedom, however, did

not come without consequences, as now the European borders were only as strong as the

weakest section of the external border.13

The migratory crisis of 2015 was not completely unpredictable, as the numbers of migrants

entering Europe had been increasing steadily since 2013.14

The memory of the so called

Arab Spring situation in 2011 was still fresh,15

when 30,000 Tunisians entered Italy and

were issued temporary residence cards, allowing them to continue onwards to other

Member States, violating the Schengen rules.16

To prevent a similar crisis from happening,

Frontex responded to the developing threat level in the Central Mediterranean area by

9 Kaca 2016, “Schengen‟s Future in Light of the Refugee Crisis”, p. 2.

10 See Romano 2016, “Schengen at the crossroads between Dublin‟s failure and the rising populism in the

EU. Constitutional and political scenarios in the context of the current refugee crisis”, p. 4 and Menéndez

2016, “The Refugee Crisis: Between Human Tragedy and Symptom of the Structural Crisis of European

Integration”, p. 388. 11

Davies 2016, “Understanding European Union Law” p. 143. 12

Rosas - Armati 2016, “EU Constitutional Law”, p. 186. 13

Karanja 2008, “Transparency and Proportionality in the Schengen Information System and Border Control

Co-operation”, p. 51. 14

Menéndez 2016, p. 388. 15

Peers 2014, “Immigration and asylum”, In Bernard, Catherine and Peers, Steve (Eds.): European Union

law, pp. 781-782. 16

Epiney – Egbuna-Joss 2016, “Schengen Borders Code Regulation No 562/2006”, In Hailbronner, Kay and

Thym, Daniel (Eds.): EU Immigration and Asylum Law. Commentary, 2nd

edition, p. 103.

3

launching Operation Triton in November 2014,17

with an objective of boosting the

surveillance of maritime borders.18

However, Operation Triton alone was not enough to

restrain the flow of migrants in 2015, consisting mostly of Syrian nationals fleeing civil

war.19

In September 2015, the European Commission (Commission) and the Council of the

European Union (Council) tried to ease the situation in Greece and Italy by relocating

160,000 asylum applicants to other EU Member States.20

The spreading of the migratory

pressure did not provide the wanted solutions for the crisis, and obscurities in the

application of the Dublin system generated heated arguments between Member States.

Different policy responses to the question of who should take the responsibility of the

unregistered migrants led to a situation where various Member States chose their national

interests over the commonweal of the Union.21

During late 2015 and early 2016, the secondary movements of migrants inside the

Schengen area were used as a reason to declare a serious threat to internal security and

public policy in eight Schengen States: Germany, Austria, Hungary, Slovenia, Sweden,

Norway, Denmark and Belgium.22

These threats justified making an exception to the

abolition of internal border control provided by the Schengen Borders Code23

(SBC),

which acts as the main regulation in the EU concerning rules on border control.24

Articles

23–26 SBC cover three different situations where temporary border controls may be

reintroduced. Now one of these means was applied, as temporary border controls were

reintroduced at the internal borders of these eight Member States in accordance with

Article 25 SBC, which provided a specific procedure for cases requiring immediate action.

17

Frontex 2016, “Joint Operation Triton (Italy)”. 18

Jumbert 2015, “A Close Look at Border Security in the Mediterranean”. 19

Kaca 2016, p. 1. 20

European Commission, COM(2015) 675, p. 3. 21

See European Parliament’s Policy Department for Citizen’s Rights and Constitutional Affairs: “Internal

border controls in the Schengen area: is Schengen crisis-proof?”, p. 50 and Greenhill 2016, p. 317. 22

European Commission 2017, Member States‟ notifications of the temporary reintroduction of border

control at internal borders pursuant to Article 25 et seq. of the Schengen Borders Code. 23

Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006

establishing a Community Code on the rules governing the movement of persons across borders. Official

Journal L 105, 13.4.2006, pp. 1-32. [Later Schengen Borders Code]. 24

Europa 2014, section: Schengen Borders Code.

4

Before 2013, temporary reintroduction of border control used to be a privilege of the

Member States, but the SBC was amended following the Arab Spring situation introducing

Article 26 SBC, empowering the Council to recommend the reintroduction of internal

border control in a situation where the overall functioning of the area without internal

border control is at risk due to serious deficiencies relating to external border control.25

The Council used this power in May 2016, when it suggested that Germany, Austria,

Denmark, Sweden and Norway prolong their application of temporary reintroduction of

border control.26

The temporary reintroduction of border control in the eight Member States was not the

only exception made to the abolition of internal border control during 2015, as the

Netherlands searched the SBC for a more creative solution to the migratory crisis.27

This

was provided by Article 21 SBC: checks within the territory, which defines that even

though Schengen States have agreed upon the removal of border control, they have not

given up on all forms of control at internal borders.28

Despite the abolition of internal

border control, Article 21(a) SBC allows Member States to continue exercising police

powers in border areas, as long as they do not have an effect equivalent to border checks.29

Instead of reintroducing temporary border controls to control the movements of migrants, a

decision was made in the Netherlands to intensify the frequency and intensity of the

exercise of police powers in border areas, with the purpose of migration control. This

national measure was the first of its kind and enabled by a recent 2014 addition to the

Dutch national legislation concerning the implementation of Article 21 SBC. Intensifying

the exercise of police powers allowed the Netherlands to reach similar objectives pursued

in the eight Member States applying temporary border controls, but it did not create similar

obligations to the Netherlands, nor create similar pressure on the Schengen system, raising

the question: what was the actual difference between police performed identity checks and

border checks?30

25

Schengen Borders Code, Article 26. 26

Council of the European Union, Council Implementing Decision setting out a Recommendation for

temporary internal border control in exceptional circumstances putting the overall functioning of the

Schengen area at risk. 8835/16. 12.5.2016. [Later Council Document, 8835/16]. 27

Van der Woude 2015, “The Dutch Response to the Refugee Crisis”. 28

Karanja 2008, p. 387. 29


Guild, Brouwer, Groenendijk and Carrera, “What is happening to the Schengen borders?”, pp. 16-17.

5

Border control in the EU, alongside with immigration and asylum policies, falls under the

Area of Freedom Security and Justice, which is one of the shared competences between the

EU and its Member States.31

As part of the shared competences, border control related

matters shall comply with the principles of subsidiarity and proportionality.32

The principle

of proportionality acts as one of the general principles of EU law restraining legislative and

administrative acts.33

The proportionality principle is defined on a Treaty level in the

Treaty on European Union (TEU) Article 5(4) in a way that “the content and form of

Union action shall not exceed what is necessary to achieve the objectives of the

Treaties.”34

In the area of free movement, reintroduction of border control should remain an exception

and a last resort measure.35

Article 23 SBC states that “[t]he scope and duration of the

temporary reintroduction of border control at internal borders shall not exceed what is

strictly necessary to respond to the serious threat.”36

To highlight this exceptional nature,

the EU legislator has included the requirement to respect the principle of proportionality

into Articles 23–26 SBC regarding temporary reintroduction of border control.37

This

requirement applies to all situations where temporary border controls may be introduced.38

Having proportionality as a restricting factor when it comes to tightening the control of

internal borders is important, because exceptions to the abolition of internal border control

create limitations to the free movement of persons,39

which is one of the four freedoms of

the EU, based on TEU Article 3(2).40

EU citizens have enjoyed the freedom to move freely

within the territory of the Member States since the Treaty of Maastricht in 1992 and the

31

Gibbs 2011, “Reasoned „Balance‟ in Europe‟s Area of Freedom, Security and Justice”. European Law

Journal (2011), Vol. 17, No 1, p. 121. 32

Thym 2016, “Legal Framework for Entry and Border Controls”, In Hailbronner, Kay and Thym, Daniel

(Eds.): EU Immigration and Asylum Law. Commentary, 2nd edition, pp. 36. 33

Bradley 2014, “Legislating in the European Union”. In Bernard, Catherine and Peers, Steve (Eds.):

European Union law. Oxford University Press, pp. 98-139. 34

Treaty on European Union, Article 5(4). 35

Schengen Borders Code, recital 17. 36

Ibid. Article 23. 37


Jorgensen – Sorensen 2012, “Internal border controls in the European Union: recent challenges and

reforms”, European Law Review (2012), p. 8. 39

European Commission, COM(2016) 120 final, p. 3. 40

See Treaty on European Union, Official Journal C 202, 7.6.2016, pp. 13–45 and Chalmers, Davies and

Monti 2014. “European Union Law”, p. 475.

6

establishment of Union citizenship,41

which is guaranteed by Article 21 of the Treaty on

the Functioning of the European Union (TFEU).42

As mentioned earlier, the right to free movement inside the Schengen area is not just for

Union citizens. The free movement of TCNs is based on TFEU Article 77(1), which states

that the Union shall develop a policy with a view to ensure “the absence of any controls on

persons, whatever their nationality, when crossing internal borders”43

, which was realised

with the Schengen Agreement in 1995.44

The reintroduction of temporary border control is not considered as a last resort option

only because it creates limitations to the freedom of movement, but it also creates major

economic costs to the EU by damaging the functioning of the Single European Market.45

One of the main reasons for expanding free moment to also include TCNs was to improve

the functionality of the Single Market, because a situation where only Union citizens

benefitted from the free movement would not be the best from an economical point of

view.46

The Commission has estimated that carrying out internal border controls on a full

scale would cost the EU from €5 to €18 billion annually, including only direct costs.47

Because exceptions to the abolition of internal border control have such notable

consequences, the application of temporary border control and checks within the territory

are tightly regulated in the SBC.48

The SBC amendment of 2013 increased the significance

of the proportionality principle as one of these limiting factors.49

However, the problem

with the principle of proportionality in assessing both of the two exceptions to the abolition

of internal border control is that, even though proportionality is considered to be a general

principle of EU law, there is no uniform way for measuring it in the case law of the Court

of Justice of the European Union (CJEU).50

41

Davies 2016, p. 142. 42

Treaty on the Functioning of the European Union. Official Journal C 202. 7.6.2016, pp. 47-199. 43

Treaty on the Functioning of the European Union, Article 77(1). 44

Rosas - Armati 2016, p. 186. 45


Sánchez 2009, “Free Movement of Third Country Nationals in the European Union? Main Features,

Deficiencies and Challenges of the new Mobility Rights in the Area of Freedom, Security and Justice.”

European Law Journal (2009), Vol. 15, No. 6, pp. 791–805. 47

European Commission, COM(2016) 120 final, p. 3 48

Jorgensen – Sorensen 2012, p. 251. 49

Peers 2013, “The Future of the Schengen System”, p. 44 50

Tridimas 2006, ”The General Principles of EU Law”, p. 173.

7

1.2 Research question, methodology and structure

The aim of this master‟s thesis is to provide understanding of how the principle of

proportionality affects the application of the two exceptions to the abolition of internal

border control provided by the SBC: Article 21 SBC (checks within the territory) and

Articles 23–26 SBC (temporary reintroduction of internal border control). The migratory

crisis of 2015 acts as a starting point for this thesis. The exceptions made to the abolition of

internal border control during the migratory crisis make examining proportionality in this

context the current and important topic that it is. Because of this, measures taken by

Member States and EU institutions during the migratory crisis will be used as an example

in this thesis to examine what significance the principle of proportionality holds in

practice.

Any legal research should begin by identifying the specific research questions.51

The

research question of this thesis is: how does the principle of proportionality restrict the

application of temporary reintroduction of border control and checks within the territory?

In order to answer this question, a comprehensive understanding of the two exceptions to

the abolition of internal border control in the EU and proportionality, as a general principle

of EU law, is required. Chapter 2 of this thesis will provide the necessary background

information by covering the Schengen acquis and the rules on which Schengen cooperation

is based.52

This will include a general overview of the SBC as the main EU regulation

concerning the rules on border control and present temporary reintroduction of border

control and checks within the territory in detail.53

As a traditional and well suited method for examining valid and binding law,54

a study

method of legal dogmatics has been chosen for this master‟s thesis. This choice shows up

in Chapter 3, which will examine the principle of proportionality closer and present the

traditional ways used to assess the proportionality of a measure. After this overview,

Chapter 3 will examine in more detail how the proportionality principle is included in

51

McConvville – Chui, “Research Methods for Law”, p. 33. 52

European Commission 2011, Communication from the Commission to the European Parliament, the

Council, the European Economic and Social Committee and the Committee of the Regions: Schengen

governance - strengthening the area without internal border control, COM(2011) 561 final, 16.9.2011. [Later

European Commission 2011, COM(2011) 561 final]. 53

Council adopts the Schengen Governance legislative package. 14441/13, 7.10.2013. 54

Hirvonen 2011, ”Mitkä metodit? Opas oikeustieteen metodologiaan”, p. 23.

8

Articles 21 and 23–26 SBC. Because reviewing the SBC alone would not provide a full

picture of how proportionality affects the application of these two measures, relevant case

law of the CJEU will also be examined, which is a typical research method in legal

dogmatics to gain a better understanding of written law.55

Case law of the CJEU concerning temporary reintroduction of border control is scarce, but

there are two significant landmark cases connected to the application of checks within the

territory in the Member States. These two judgments of the European Court of Justice

(ECJ) will link Chapters 3 and 4 to the Netherlands, which will be used as the main

example in this thesis when it comes to the application of Article 21 SBC. The reason

behind this choice is that the Netherlands has a long history and the most advanced

national legislation among the Member States when it comes to the application of Article

21 SBC.56

Chapter 4 will examine the consequences of the migratory crisis in more detail, divided

between temporary border control and checks within the territory. Chapter 4.2 concentrates

on the former and describes the situation in the eight Member States that applied Articles

23–26 SBC because of the uncontrollable migratory flows, focusing on the initiators of

these measures: Germany and Austria. Chapter 4.3 will explain how the application of

Article 21 SBC was used to restrict the arrival of migrants into Dutch territory in 2015.

Chapters 4.2 and 4.3 will examine how these measures were justified, what kind of

consequences they had and why the principle of proportionality should be taken into

account in their application. The remainder of Chapter 4, before the conclusions of this

thesis, will examine the changes that have happened in the concept of asylum and attitudes

towards large migratory flows, which have eventually led into the expansion of migration

control and changes in how restrictions to the freedom of movement can be justified.

This thesis approaches its topic from a border security point of view. The focus is on the

free movement of persons, leaving out any questions related to free movement of goods. It

is important to understand the effects of the migratory crisis to the Schengen system when

examining the proportionality of the Member States‟ restrictive measures; the purpose of

55

Ibid. 2011, p. 23. 56

Van der Woude 2015.

9

this thesis, however, is not to focus on the migratory crisis, human rights, or asylum related

questions. Despite the significant effects of the migratory crisis for the Schengen borders,

asylum legislation is not part of the Schengen acquis protocol.57

When talking about migrants, refugees and asylum seekers, it should be noted that these

terms can hold multiple meanings.58

To clarify the terminology used in this thesis, the term

„migrant‟ is used when talking about persons who are on the move, not because their safety

is threatened in their own region, but to improve their living conditions, reunite with their

families or to find work. The definition „refugee‟ is used on persons who cross national

borders to seek protection from persecution or armed conflict.59

The definition „asylum seeker‟ is used on persons who seek acceptance to another state by

claiming to be a convention refugee under the United Nations Convention Relating to the

Status of Refugees, but whose asylum decision is not yet made.60

„Irregular‟ or „illegal‟

immigrant refers to migrants whose presence in a territory is against the law; being

irregular involves crossing borders without permission, bypassing border crossing points or

lacking valid travel documents or papers.61

When talking about the terminology related to the control of the external and internal

borders, this thesis uses corresponding definitions with the SBC, where the term „border

control‟ refers to means carried out at borders in response to intentions to cross the border,

consisting of border checks and border surveillance62

and „border check‟ refers to checks

carried out at border crossing points in order to ensure that persons may be authorised to

enter or to leave the territory of the Member States.63

As the Schengen area has been expanding since the 90‟s, it is worth mentioning that not all

EU Member States are signatory states to Schengen Agreement and that Schengen co-

operation consists of European countries that are not EU Member States. To keep a

uniform style with the existing EU legislation concerning Schengen cooperation in this

57


Price 2009, “Rethinking Asylum: History, Purpose and Limits”, p. 17. 59

Geneva 2016. ”UNHCR viewpoint: „Refugee‟ or „migrant‟ – Which is right?” 60

See Price 2009, p. 17 and UN Convention Relating to the Status of Refugees 1951. Geneva, 28.7.1951. 61

Johnson 2014: “Borders, Asylum and Global Non-Citizenship”, p. 4. 62

Schengen Borders Code, Article 2(9). 63

Ibid. Article 2(10).

10

thesis, the definition of „Member States‟ is still used when referring to countries

participating in the Schengen co-operation. The definition of „Schengen States‟ is still used

when it is necessary to refer to the signatory states of the Schengen agreement.

The legislation used in this thesis has been observed as it stood at the end of July 2017.

11

2 BORDERLESS EUROPE

2.1 Schengen area and cooperation

The right to cross Member States‟ borders without having to undergo border checks

derives from the free movement of persons, which is one of the four core freedoms of the

EU introduced in the EEC treaty of 1957.64

These four freedoms have supported the

development of the internal market area without frontiers, which has been one of the main

goals for the EU, since its introduction with the Singe European Act in 1986.65

EU citizens

have enjoyed the right of free movement as one of the basic rights provided by Union

citizenship since its establishment with the Treaty of Maastricht in 1992.66

The general

guideline for this freedom can be found in TFEU Article 21, which states that “Every

citizen of the Union shall have the right to move and reside freely within the territory of

the Member States”67

.

The area without internal borders known as the Schengen area, where the four freedoms

can be fully utilised, is one of the finest achievements of European integration.68

The

Schengen area is a product of the Schengen Conventions of 1985 and 1990, which created

the Schengen Agreement and the Convention Implementing the Schengen Agreement

(CISA).69

Throughout history, European borders have gone through many cultures of

border control with their unique features, but the Schengen Conventions arranging the new

rules of border control have been undoubtedly the clearest turning point for a new culture

of border control in Europe.70

The Schengen Conventions redefined the meaning of borders by introducing the concepts

of internal and external borders.71

Article 1 CISA defined internal borders as “the common

land borders of the [Schengen States], their airports for internal flights and their sea ports

for regular ferry connections exclusively from or to other ports within the territories of the

64

Treaty Establishing the European Community. Official Journal C 325, 24.12.2002, pp. 33–184. 65

Chalmers, Davies and Monti 2014, p. 22. 66

Davies 2016, p. 142. 67

Treaty on the Functioning of the European Union. Article 21. 68

Davies 2016, p. 143. 69

Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the

States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the

gradual abolition of checks at their common borders, Official Journal L 239 , 22.09.2000, pp. 19-62. [Later

CISA]. 70

Zaiotti 2011, “Cultures of Border Control”, pp. 25-27 and p. 71. 71

Ibid. p. 71.

12

[Schengen States] and not calling at any ports outside those territories”.72

External borders

were defined with a simple reverse definition as “land, sea land and sea borders and their

airports and sea ports, provided that they are not internal borders”.73

The signatory states of these two agreements, including EU Member States and non-EU

states, agreed upon speeding the development of the internal market area by removing

border checking procedures at the internal borders of the new Schengen area.74

Schengen

cooperation entered into force in 1995 and border control shifted to the external borders of

the Schengen area, where all persons entering or leaving were to undergo a border check

regardless of their nationality.75

The Treaty of Amsterdam entering into force on 1 May 1999 was another big step for the

free movement of persons, as it created the Area of Freedom, Security and Justice and

reorganised the now abandoned EU pillar structure by moving rules concerning

immigration, asylum and border control under the first pillar,76

placing these subjects under

the control of the Commission for the first time.77

With the Treaty of Amsterdam, the

Schengen Agreement and Schengen acquis were incorporated into the EU legal

framework.78

The Schengen acquis protocol set the newly formed Schengen area under

parliamentary and judicial scrutiny, placing it under democratic parliamentary control, and

gave Union citizens access to legal remedies in case their rights were violated.79

Benefits relating to the free movement of persons created by the Schengen Agreement

were not only meant for EU citizens, but for all persons regardless of their nationality. This

was established with Article 19 CISA, stating that “[a]liens who hold uniform visas and

who have legally entered the territory of a Contracting Party may move freely within the

territories of all the Contracting Parties during the period of validity of their visas”.80

This

72

CISA, Article 1. 73

Ibid. 74

Chalmers, Davies and Monti 2014, pp. 521-522. 75

Europa 2009, section: the Schengen area and cooperation. 76

Craig 2014, ”Development of the EU”. In Bernard, Catherine and Peers, Steve (Eds.): European Union

law, pp. 23-24. 77

Lang 2008, “Third Pillar Developments from a Practitioner‟s Perspective”. In Guild, Elspeth and Geyer,

Florian (Eds.): Security versus Justice? Ashgate Publishing Company, p. 265. 78


Europa 2009, section: the Schengen area and cooperation. 80

CISA, Article 19.

13

gave TCNs the same right to move freely within the Schengen area as Union citizens, once

they had entered it.81

On Treaty level, the TCNs right to free movement is guided by Article 77(1) TFEU, which

states that the Union shall develop a policy that ensures “the absence of any controls on

persons, whatever their nationality, when crossing internal borders”.82

Article 77(1) TFEU

instructs actions of the EU to support efficient monitoring of the crossing of external

borders and indicates that border control is no longer guided by the single market, but it

has become self-sufficient in itself.83

Even though EU citizens and TCNs started to enjoy similar rights of movement inside the

Schengen area, they were still separated by border checking procedures at the external

border: EU citizens were to go through a so called minimum check, while TCNs were

required to pass a more detailed thorough check to ensure they fulfilled entry conditions set

for them.84

In order to confirm the fulfilment of these entry conditions, harmonisation of

visa policy among the signatory states was necessary.85

For this purpose, Article 10 CISA

introduced a uniform visa system. Uniform visas would be issued in accordance with

common conditions, regardless of the issuing member state, and the visas would be valid in

the entire territory of the Schengen area for short stay visits not exceeding 3 months.86

Visas that were issued for longer periods of time would be national visas and no subject to

Schengen rules.87

The removal of internal border control did not come without consequences. Focusing

border control on the external border made it easier for law-breakers and unwanted persons

to move inside the Schengen area without being stopped once they had entered it.88

Illegal

overstaying became easier because border checks on exit happened only when leaving the

Schengen area.89

To prevent the decline of security, cross-border cooperation was

81

Peers 2013, p. 9. 82

Treaty on the Functioning of the European Union. Article 77. 83

Thym 2016, “Legal Framework for Entry and Border Controls”, In Hailbronner, Kay and Thym, Daniel

(Eds.): EU Immigration and Asylum Law. Commentary, 2nd edition, pp. 35-36 84


Barnard 2013, “The Substantive Law of the EU”, p. 555. 86

CISA, Article 10. 87

Barnard 2013, p. 555. 88

Peers 2013, p. 9. 89

Frontex 2016, p. 27.

14

strengthened and new ways of exchanging information between Member States‟ authorities

were introduced, such as the Schengen Information System (SIS).90

Schengen cooperation in 2017 consists of 23 EU Member States and 3 non-EU states:

Iceland, Norway and Switzerland.91

Since the Treaty of Amsterdam, the EU legislator has

been actively building new legislation related to border control and visa policies on the

Schengen acquis that have replaced relevant parts of the Schengen Agreement and CISA.92

Schengen cooperation, in all of its broadness, cannot be covered with a single legislative

measure. This is why different parts of the Schengen acquis, such as visa policies and

information systems like SIS, are covered in their own regulations, while rules on border

control can be found in the SBC. 93

2.2 Schengen Borders Code

The Schengen Border Code was created to fill any legislative gaps left by the Schengen

Conventions and has been acting as the main regulation concerning rules on border control

in the Schengen area since it was introduced in 13 October 2006.94

The two main functions

of the SBC are established in its Article 1, which states that the regulation provides for the

absence of border control of persons crossing the internal borders between the Member

States and establishes rules governing border control of persons crossing the external

borders.95

The scope of application for the SBC is described in Article 7(1), which states

that any movement of persons at external borders shall result in border checks performed

by border guards, making SBC applicable to all persons entering or leaving the Schengen

area.96

The above-mentioned Article 77(1) TFEU stated that the Union shall develop policies to

ensure the absence of border control while crossing internal borders of the Schengen area

for all persons regardless of nationality. This promise and the objectives of the Schengen

Agreement are carried out with Article 20 SBC, which highlights the equivalence of EU

90

Spencer 2014, “EU Criminal Law”. In Bernard, Catherine and Peers, Steve (Eds.): European Union law.

Oxford University Press, p. 765. 91

Schengen Visa Info 2017, section: Schengen Area Countries List. 92

Peers 2014, p. 781. 93

Schengen Visa Info 2017, section: Schengen Area Countries List. 94

Europa 2014, section: Schengen Borders Code. 95


Ibid. Article 7.

15

citizens and TCNs by stating that “Internal borders may be crossed at any point without a

border check on persons, irrespective of their nationality, being carried out.”97

In brief,

Article 20 SBC leaves no room for internal border control as it establishes free movement

of persons within the Schengen area. This freedom, however, is a subject to limitations.

Even though the main purpose of the SBC is to remove internal border control, it takes into

account that in some situations different forms of control at the internal borders can be

justified or even necessary. This is why the SBC includes the two exceptions to the

abolition of internal border control: temporary reintroduction of border control and checks

within the territory.

2.2.1 Checks within the territory: Article 21 SBC

If reading the SBC in order, the first exception to the abolition of internal border control

can be found in Article 21 SBC, checks within the territory, which describes measures

competent authorities of the Member States can carry out under national law without

interfering with the free movement of persons established by Article 20 SBC.98

This means

that even though the Schengen States have agreed upon removing border checks at internal

borders, there is still room for other types of control that can be carried out on persons near

border areas.99

The nature of controls performed under Article 21 SBC is continuous:

competent authorities of Member States are allowed to exercise their powers as described

in Article 21 SBC without further announcements as long as the exercise of these powers

does not infringe upon Articles 20 or 21 SBC.

The idea for an alternative way of internal control originates from France, where mobile

patrols near internal borders started as early as 1994, with the purpose of searching illegal

immigrants. In 1996, The Schengen Executive Committee agreed to the creation of mobile

patrols and mobile frontiers that could be carried out in cooperation between the Member

States, as suggested by France, creating a clear connection between the abolition of

97


Peers 2013, p. 19. 99

Van der Woude 2015.

16

internal border control and the birth of these new types of controls that could be carried out

in different forms.100

Article 21 SBC is divided into four paragraphs (a)-(d). This thesis will focus on paragraph

(a), which gives the Member States‟ competent authorities the right to exercise police

powers under the national law, as long as the exercise of these powers does not have an

equivalent effect to border checks performed by border guards.101

This gives Member

States a general guideline on how the application of police powers should be carried out

near border areas, a definition which has been interpreted in different ways by the Member

States, as can be seen in later examples.

“Article 21

Checks within the territory The abolition of border control at internal borders shall not affect:

(a) the exercise of police powers by the competent authorities of the Member States under national

law, insofar as the exercise of those powers does not have an effect equivalent to border checks;

that shall also apply in border areas. Within the meaning of the first sentence, the exercise of police

powers may not, in particular, be considered equivalent to the exercise of border checks when the

police measures:

(i) do not have border control as an objective,

(ii) are based on general police information and experience regarding possible

threats to public security and aim, in particular, to combat cross-border crime,

(iii) are devised and executed in a manner clearly distinct from systematic checks on

persons at the external borders,

(iv) are carried out on the basis of spot-checks;”102

The other three paragraphs (b)-(d) are shorter in length and have so far not required

interpretation from the CJEU. These paragraphs clarify that the abolition of border control

at internal borders shall not affect: security checks on persons at ports or airports, provided

that these checks are also performed to persons travelling within a Member State

(paragraph b), the possibility for a Member State to provide by law for an obligation to

hold or carry papers and documents (paragraph c) and the possibility for a Member State to

provide by law for an obligation of TCNs to report their presence in a territory of a

Member State (paragraph d).103

100

Karanja 2008, p. 387. 101

Schengen Borders Code, Article 21(a). 102

Ibid. 103

Ibid. Article 21(b)-(d).

17

Despite the fact that these three paragraphs are not in the focus of this thesis, paragraphs

(c) and (d) are significant for the exercise of police powers under paragraph (a), as they

clarify that even though EU citizens are not required to possess passports or identity cards

while crossing internal borders of Member States, they might still be required to present

identification documents inside the territory of Member States.104

When the SBC was first drafted, there was a lot of discussion about the relationship

between internal police controls and border checks. One of the main concerns of the EU

legislator was that identity checks performed under Article 21 SBC would become an

alternate form of border checks, if checks within the territory were not legislated and

restricted clearly enough.105

To prevent this from happening and to help Member States

distinguish measures that might be considered having an equivalent effect to border

checks, a 4-part list of police measures that may not, in particular, be considered having

equivalent effect to border checks, was included into Article 21(a) SBC.

The first point on this 4-part list is that police measures that do not have border control as

an objective should not be considered having equivalent effect to border checks (i). This

wording leaves discretion to the Member States to decide what kind of objectives can be

pursued with the exercise of police powers in their border areas, as long as their primary

objective is not related to border control. This vagueness left in this point is clarified in the

ECJ case Adil (C‑278/12) of June 2012,106

which is one of the landmark cases concerning

interpretation of Article 21 SBC.107

The judgment of Adil is significant because it clarified that the wording „in particular‟ used

in paragraph (a) means that the 4-part list of measures that may not be considered having

an equivalent effect to border checks, is not exhaustive.108

Therefore the exercise of police

powers in Member States under Article 21(a) SBC could have more objectives than the

ones included in the 4-part list and still be considered as non-equivalent. In Adil, this was

applied in a way which allowed police powers to be exercised in the Netherlands, not only

104

Karanja 2008, p. 51. 105

Guild, Brouwer, Groenendijk and Carrera 2015, p. 16. 106

C-278/12 PPU Adil [2012], ECLI:EU:C:2012:508. [Later Adil]. 107

Brouwer 2015, “Migration flows and the reintroduction of internal border controls: assessing necessity

and proportionality”. 108

Adil, para. 65.

18

for law enforcement purposes, but also for the purposes of immigration control.109

The

judgment of Adil clarified that the ECJ was willing to broaden the applicability of Article

21 SBC by separating immigration control from border checks and leaving room for

possible future additions to the 4-part list of applicable measures.

The second point on the 4-part list is that police measures should be considered as non-

equivalent, as long as they “are based on general police information and experience

regarding possible threats to public security and aim, in particular, to combat cross-border

crime”110

(ii). This point was also further clarified in the judgment of Adil, where the ECJ

stated that national police authorities can carry out identity checks in order to obtain such

general information and experience-based data, as long as obtaining this data is subject to

limitations concerning their intensity and frequency.111

The third point on the 4-part list clarifies that police measures that are planned and

executed clearly distinct from systematic border checks at the external borders, should be

considered as non-equivalent (iii).112

In Adil, the Commission highlighted selectivity as a

decisive factor, when it comes to separating identity checks performed by police

authorities from border checks. This meant that if only a selected group of individuals are

subject to identity checks performed under Article 21 SBC, it is more probable that these

checks are also non-equivalent to border checks.113

The last point on the 4-part list further

clarifies this assumption by stating that police measures that are carried out on the basis of

spot-checks and thus are not fixed, should be considered as non-equivalent (iv).114

When talking about checks within the territory, it should be specified what this „territory‟

where police performed identity checks can be carried out actually is. The territorial area

where Article 21 SBC can be applied varies between the four paragraphs (a)-(d). The

territorial scope of paragraph (b) is rather clear, as it simply states that security checks on

persons can be carried out at ports and airports.115

The territorial scope of paragraph (a),

however, is more unclear as it states that the exercise of police powers “shall also apply in

109

Adil, para. 88. 110


Adil, para. 88. 112


Adil, para. 44. 114


Ibid.

19

border areas”.116

The problem with this statement is that what is considered as border area

is no further defined in the SBC.

In the national legislation of the Member States, border area is understood as a territorial

scope, measured in kilometres, starting from land borders where police authorities are

allowed to carry out their predetermined tasks.117

The precise definition of a border area

has been debated among the Member States for a long time, but so far no agreement has

been reached, complicating various legislative proposals on the EU level.118

Because there

is no one clear definition of a border area, the territorial scope of Article 21(a) SBC varies

between the Member States.119

This situation is clarified in another landmark case

concerning the interpretation of Article 21 SBC: joined cases Aziz Melki (C-188/10) and

Sélim Abdeli (C-189/10).120

Melki and Abdeli was the first time when the CJEU had the opportunity to address the

application of police powers under Article 21 SBC.121

In Melki and Abdeli, the question

was about the legality of the detention of two Algerian nationals illegally staying in

France, who were stopped by the French police near the land border with Belgium, under

the French Code of Criminal Procedure, which allowed the French police to perform

identity checks on persons within an area of 20 kilometres from land borders.122

In its

judgment, the ECJ clarified that Articles 20 and 21 SBC together precluded national

legislation, which allows police authorities to check the identity of any person irrespective

of his behaviour within 20 kilometres of land borders, if the national legislation does not

provide the necessary framework to guarantee that these checks do not have an equivalent

effect to border checks.123

116

Ibid. 117

Atger, Anaïs Faure: The Abolition of Internal Border Checks in an Enlarged Schengen Area: Freedom of

movement or a web of scattered security checks? CEPS 2008, p. 10. 118

Hobbing 2008, “Uniforms without Uniformity: A Critical Look at European Standards in Policing”. In

Guild, Elspeth and Geyer, Florian (Eds.): Security versus Justice? Ashgate Publishing Company, p. 247. 119

Joined cases C-188/10 and C-189/10 Melki & Abdeli, [2010], ECLI:EU:C:2010:319, View of Advocate

General Mazák, para. 35. 120

Joined cases C-188/10 & C-189/10 Melki & Abdeli [2010] ECLI:EU:C:2010:363. [Later Melki and

Abdeli]. 121


Melki and Abdeli, para. 59. 123

Ibid. para. 75.

20

Melki and Abdeli was a significant case for two reasons. Firstly, the ECJ did not

disapprove the French legislation, which allowed police authorities to perform identity

checks on persons within a 20 kilometre radius from the French land borders.124

However,

where the ECJ started to disagree with the view of the French Government, was the fact

that when these checks were performed aboard international trains or at motorway

tollbooths, the radius could be extended up to 50 kilometres from the land borders. In its

judgment, the ECJ stated that having rules this detailed on the territorial scope of identity

checks could constitute as evidence of having an equivalent effect to border checks

prohibited by Article 21(a).125

Secondly, Member States were now required by the ECJ to

provide necessary framework for the application of Article 21 SBC in their national

legislation in order to guarantee that the practical exercise of police powers cannot have an

equivalent effect to border checks.126

After combining the case law of Melki & Abdeli and Adil, the interpretation of Article

21(a) SBC has been clarified to a point where it allows national police authorities to

exercise their powers, also for the purpose of immigration control, within a 20 kilometre

area from land borders in order to “check the identity of any person, irrespective of his

behaviour and of specific circumstances giving rise to a risk of breach of public order, in

order to ascertain whether the obligations laid down by law to hold, carry and produce

papers and documents are fulfilled”.127

Before Adil, the Member States enjoyed relatively wide discretion to decide on their

application of Article 21 SBC, but since then checks within the territory have become more

restricted in their intensity and frequency, something that will be examined closer in

Chapters 3 and 4 in relation to the application of Article 21 SBC in the Netherlands.128

Still, the most important restriction to the application of police performed identity checks is

that they should remain non-equivalent to border checks as stated in Article 21(a) SBC and

be sufficiently described in the national legislation of the relevant Member State, as

required after Melki and Abdeli. The requirement, however, is a strange feature among EU

regulations, which normally do not require national implementation, unlike directives.

124

Ibid. para. 75. 125

Ibid, para. 72. 126

Ibid, para. 75. 127

Ibid. 128

Adil, para. 88.

21

2.2.2 Temporary reintroduction of internal border control: Articles 23–26 SBC

The second exception to the abolition of internal border control provided by the SBC is the

temporary reintroduction of internal border control, as described in Articles 23–26. These

articles provide the possibility to temporarily reintroduce border checking procedures at

official border crossing points, in order to safeguard public policy, internal security or the

overall functioning of the Schengen area. The temporary reintroduction of internal border

control can be divided into three different situations that will be examined separately in

this section: foreseeable events (Article 23 SBC), unforeseeable circumstances (Article 25

SBC) and exceptional circumstances (Article 26 SBC).129

Article 23 SBC provides a general framework for the reintroduction of border control at

internal borders. The reintroduction of border control in a Member State is a powerful

measure that impacts the whole Schengen area; therefore it is limited by Article 23(1) SBC

only to situations where there is “a serious threat to public policy or internal security in a

Member State”.130

This requirement applies to all three situations where border controls

may be reintroduced.131

Even though this requirement is rather strict, it leaves the Member

States with room for interpretation, as what can or should be considered as a threat to

internal security or public policy is not further clarified.132

The Commission describes the reintroduction of border control as “an exceptional measure

of temporary character”.133

This view is supported by Article 23(2) SBC, which states that

“Border control at internal borders shall only be reintroduced as a last resort”.134

The

introduction of the last resort condition was one of the most significant changes written to

Articles 23–26 SBC when the SBC was amended following the Arab Spring situation in

2013. This addition strengthened the idea that border control should not be reintroduced

without addressing the necessity and proportionality of the measure.135

129

Epiney – Egbuna-Joss 2016, p. 103. 130


Ibid. Articles 23-26. 132




See Peers 2013, p. 44 and Schengen Borders Code, Article 23.

22

Article 24 SBC describes the procedure for the temporary reintroduction of border control

at internal borders. In foreseeable events, a Member State planning to reintroduce border

control is obliged to notify other Member States and the Commission of these plans

beforehand. This information shall contain the reasons for the proposed reintroduction,

scope, dates and duration of the planned measure and the measures to be taken by other

Member States, where appropriate.136

In foreseeable events, where border controls should

be able to be applied without a rush, reasons behind these reintroductions have traditionally

been related to supporting the work of police authorities and ensuring the level of security

during major sports events, high-profile political meetings and demonstrations.137

Before the 2013 SBC amendment, the timeframe between notifications by Member States

and the reintroduction of border control was considered problematic,138

as Article 24 SBC

only stated that these notifications should be delivered “as soon as possible”.139

This

hindered the purpose of providing this information, which was to allow consultation and

joint meetings between Member States and the Commission before border controls were

actually reinstated.140

In 2010, the Commission reported that the timeframe for these notifications was too short

to gain any benefits. In most cases where notifications had been delivered on time, they

had also been very general, making it hard for the Commission to properly assess the

efficiency and necessity of the planned measures. Due to these difficulties, in 2010 the

Commission had not yet issued a single opinion on the necessity and proportionality of the

reintroduction of border control in Member States, but at the same time there was no

suspicion that any Member States had so far abused their power while applying Articles 23

or 25 SBC.141

Due to these difficulties, the timeframe for providing notifications was

changed in the 2013 amendment to four weeks before the planned reintroduction.142

136



Report from the Commission to the European Parliament and the Council on the application of Title III

(Internal Borders) of Regulation (EC) No 562/2006 establishing a Community Code on the rules governing

the movement of persons across borders (Schengen Borders Code), COM(2010) 554 final, 13.10.2010, p. 8.

[Later European Commission, COM(2010) 554]. 139

Peers 2013, p. 125 140



Schengen Borders Code, Article 24.

23

The second situation where temporary border controls can be reintroduced is unforeseeable

circumstances and Article 25 SBC, which provides a specific procedure for cases requiring

immediate action. This option allows temporary border controls to be reintroduced

immediately, if there is a sudden threat to public policy or internal security in a Member

State.143

The application of Article 25 SBC in Spain after the Madrid bombings in 2004

clarified that the threat of terrorism fell under this category of sudden threat.144

A more

recent example of the specific procedure can be found in Norway and Sweden, where

temporary border controls were reintroduced in accordance with Article 25 SBC on 22 July

2011, few hours after bomb explosions in Oslo and shooting on the island of Utøya.145

Despite the immediate nature of the specific procedure, Member States applying Article 25

SBC are not relieved from the requirement to assess the effects of the measure (Article 23a

SBC) or to notify other Member States and the Commission (Article 24 SBC). Instead of

providing notification letters beforehand, Member States applying Article 25 SBC shall

provide this information when controls are reintroduced; including also reasoning that

justifies the use of the specific procedure.146

The obvious downside of Article 25 SBC is

that it leaves little or no room for discussing and criticising these measures prior to their

implementation.

Temporary reintroduction of border control used to be a sole privilege of the Member

States, but this was changed after the Arab Spring situation in 2011 and uncertainties in the

Middle East, when the ability of some Member States to control the external border was

questioned.147

To strengthen the position of EU institutions when applying these measures,

the 2013 SBC amendment introduced a coordinated approach to the temporary

reintroduction of border control: a newly formed Article 26 SBC, which enables the

Council to take action in exceptional circumstances.148

The introduction of Article 26 SBC clarified the direct relationship between internal and

external border control by giving the Council power to recommend (on a proposal from the

Commission) one or more Member States to reintroduce border control in exceptional

143


Zaiotti 2011, p. 219. 145

European Commission 2017, section: Temporary Reintroduction of Border Control. 146


Peers 2014, p. 781. 148

European Commission, COM(2016) 120 final, p. 10.

24

circumstances, where the overall functioning of the Schengen area is at risk due to serious

deficiencies relating to external borders.149

This power was used for the first time during

the migratory crisis on 12 May 2016, when the Council recommended five Member States

to prolong their temporary border controls due to severe difficulties in ensuring the

efficiency of external border control.150

As its name suggests, temporary reintroduction of border control should remain limited in

its duration. Article 23(1) SBC states that “[t]he scope and duration of the temporary

reintroduction of border control at internal borders shall not exceed what is strictly

necessary to respond to the serious threat.”151

The allowed durations of border control at

internal borders vary depending on the situation where they were reintroduced. In

foreseeable situations, Article 23 SBC limits the duration of reintroduced border controls

to 30 days. If the serious threat to public policy or internal security persists after that, the

duration can be prolonged in periods of up to 30 days; however, the total duration shall not

exceed six months.152

In unforeseeable circumstances this duration is even shorter, as Article 25 SBC allows

Member States to reintroduce border controls for a limited period of up to 10 days, which

can be renewed in periods of up to 20 days, to the maximum duration of two months.153

Article 26 SBC introduces special circumstances, under which the maximum length of

reintroduced border control can be extended to a maximum of 2 years.154

To put these

numbers into perspective, in 2010 the Commission reported on the application of the SBC

to the European Parliament and the Council and stated that so far there had not been any

occasions where Member States were required to prolong border control reintroduced in

accordance with Articles 23 or 25 SBC.155

149


Council Document, 8835/16. 151


Ibid. 153


Ibid. Articles 23(4) and 26. 155

European Commission, COM(2010) 554, p. 8.

25

3 PROPORTIONALITY AND INTERNAL BORDER CONTROL

3.1 General principle of proportionality

The principle of proportionality is the cornerstone principle among all the legal principles

of EU law.156

Like many other principles of EU law, it has been derived from the national

laws of Member States, from where it has been transformed and moulded by time to serve

European courts and the CJEU. At the most abstract level, the principle of proportionality

requires that the undertaken measures are proportionate to their objectives and the freedom

of individuals is not restricted beyond what is necessary to the public interest.157

The

principle of proportionality is flexible and it has a widespread area of application in the EU

law; Advocate General (AG) Jacobs has even stated that “there are few areas of

Community law, if any at all, where that [proportionality] is not relevant”.158

In the SBC, the proportionality principle is closely connected to the temporary

reintroduction of internal border control. In some situations, proportionality can also affect

the application of checks within the territory, even though proportionality is not included in

Article 21 SBC. The purpose of this Chapter is to examine how the proportionality

principle can affect the application of these two measures and to point out any problems

that might arise when measuring the proportionality of the two exceptions to the abolition

of internal border control.

In the EU law, the principle of proportionality enjoys a position of a general principle with

constitutional status. It binds both Union institutions and Member States to a point, where

legislative or administrative measures that breach the principle of proportionality are

considered to be illegal and may therefore be annulled by the Court.159

Cornerstone

principles, such as legal certainty and proportionality, are capable of overruling lesser

principles of Union law. With the support of the principle of primacy of Union law, they

are also capable of overriding the national laws of the Member States.160

156

Groussot 2006, ”General Principles of Community Law”, p. 145. 157

Tridimas 2006, p. 136. 158

C-120/94 Commission of the European Communities v Hellenic Republic, [1996], ECLI:EU:C:1996:116,

Opinion of Advocate General Jacobs, para. 70. 159

Tridimas 2006, p. 6. 160

Horspool – Humphreys 2010, ” European Union Law”, p. 142.

26

Unlike many lesser principles of EU law that might not have a written form in primary

legal sources, general principles of constitutional status are often supported by a Treaty.161

The Main Treaty provision concerning the principle of proportionality can be found in

Article 5(4) TEU, which states that “Under the principle of proportionality, the content and

form of Union action shall not exceed what is necessary to achieve the objectives of the

Treaties.”162

Based on this article, proportionality acts as a guiding principle that defines

how the Union should apply its exclusive and shared competences in a controlled manner;

if the objectives of the Treaties can be reached by multiple means, the chosen option

should always be the least restrictive.163

Proportionality has a long tradition in the EU law, starting from the times of the Coal and

Steel Community Treaty in the 1950s, and an even longer history before the Union was

founded. Proportionality plays an important part also in human rights law, and it can be

found in the EU Charter of Fundamental Rights Article 49(3), which states that “The

severity of penalties must not be disproportionate to the criminal offence.”164

The strong

position on human rights issues means that proportionality acts as one of the most

significant principles affecting immigration and asylum law, the two branches of law that

are close to the Schengen acquis.165

The widespread application and long history ensure that the nature and content of the

proportionality principle are well established and rarely subject to speculation.166

Flexibility and thoroughness are the main strengths of proportionality, but the extensive

application of proportionality also has its downsides,167

as they can easily lead into vague

situations and unsystematic application, making proportionality the most complex of the

general principles.168

Even though the principle of proportionality requires that measures

are appropriate and necessary to achieve their objects,169

there is no one uniform way for

161

Tridimas 2006, p. 6. 162

Treaty on European Union, Article 5(4). 163

Horspool – Humphreys 2010, p. 147. 164

Charter of Fundamental Rights of the European Union. Official Journal C 364, 18.12.2000, p. 1–22. 165

Hailbronner – Thym 2016, “Constitutional Framework and Principles for Interpretation ”. In Hailbronner,

Kay and Thym, Daniel (Eds.): EU Immigration and Asylum Law. Commentary, 2nd

edition, p. 13. 166

Rosas - Armati 2016, p. 186. 167

Tridimas 2006, p. 173. 168

Groussot 2006, p. 145. 169

Tridimas 2006, p. 138.

27

measuring proportionality that would apply to all situations where different interests might

require protection.170

The case law of the CJEU does not offer a clear answer to this question. A traditional

method for the Court to test the proportionality of a measure has included dividing

proportionality into two parts: suitability and necessity.171

In this two part test, suitability

refers to the connection between the means and the end objective. In order to pass the

suitability test, the means of the measure should be considered appropriate for reaching the

end objective. The second part of the test is estimating the necessity of the measure, which

refers to determining whether the means are necessary and therefore legitimate in order to

reach the objectives being pursued. This includes examining possible alternative measures

that could be used to reach the same objectives with less restrictive means.172

This traditional two part test was developed further in the case Fedesa (C-33/88),173

which

introduced that the proportionality of a measure could be tested with a higher standard by

using a three-pronged test; introducing proportionality stricto sensu (in a narrow sense), as

the third element.174

This three part proportionality test was inspired by German law,

where proportionality consists of suitability, necessity and reasonableness, referring to

proportionality in a narrower stance. Reasonableness, or proportionality stricto sensu,

requires that if the means are causing disadvantages to the affected parties, these negative

effects must be in proportion to the advantages that the general population will gain from

the measure.175

In Fedesa, it was argued that Directive 88/146/EEC176

dealing with hormonal substances in

livestock farming infringed upon proportionality in all of these three respects. In its

assessment, the ECJ first defined that the directive in question was not considered suitable,

because it was impossible to apply in practice and it led to negative side effects; such as

the creation of a dangerous black market. Secondly, the measure was not considered

170

Ibid. p. 173. 171


Groussot 2006, pp. 146-147. 173

C-331/88 The Queen v Minister of Agriculture, Fisheries and Food and Secretary of State for Health, ex

parte: Fedesa and others, [1988], ECLI:EU:C:1990:391.[Later Fedesa]. 174

Groussot 2006, p. 146. 175

Robbers 2003, ”An Introduction to German Law”, p. 54. 176

Council Directive 88/146/EEC of 7 March 1988 prohibiting the use in livestock farming of certain

substances having a hormonal action. Official Journal L 70, 16.3.1988, pp. 16–18.

28

necessary, because there were less restrictive alternatives, such as spreading information.

Thirdly, the directive at issue caused disadvantages and financial losses to the parties

involved that were not proportionate to the aims pursued.177

This connection between

financial losses and proportionality in a narrow sense was addressed clearly by AG Mischo

as “weighing of damage caused to individual rights against the benefits accruing to the

general interest”.178

Although Fedesa introduced proportionality stricto sensu as the third element for

measuring proportionality, the ECJ is not obliged to apply this three-pronged method in its

judgments,179

as it has been pointed out by AG van Gerven in the case Conforama (C-

312/89).180

However, if the three-pronged proportionality test is chosen, but the measure in

question fails to pass the first part of the test, for example the element of suitability, then

no further testing is required to declare the measure disproportionate, as noted by AG

Fennelly in the case Tobacco Advertising (C-376/98).181

In addition, cases such as Stoke-

on-Trent (C-169/91)182

have shown that in some cases only one element from the three-

fold test can be selected for inspection, making testing proportionality even more flexible

for the CJEU.183

Article 45(3) TFEU states that the free movement of persons can be a limited on the

grounds of public policy, public security or public health.184

In these situations,

proportionality plays an important part in protecting the free market from unnecessary

restrictions created by the Member States. When determining the proportionality of such

measures, the CJEU tends to be stricter than when testing the necessity of Union

177

Fedesa, para 12. 178

C-331/88 The Queen v Minister of Agriculture, Fisheries and Food and Secretary of State for Health, ex

parte: Fedesa and others, [1988], ECLI:EU:C:1990:391, Opinion of Advocate General Mischo, para. 42. 179

Groussot 2006, p. 149. 180

See C-312/89 & Case C-332/89 Joined Opinions of Advocate General van Gerven, [1990], para. 14,

where AG van Gerven takes the view that “that the absence of any reference to the criterion of

proportionality---is not of fundamental importance and that the reason for the omission lay in the specific

circumstances of the case, from which it was clear that any obstacles which might be created were not

particularly serious.” 181

C-376/98 Federal Republic of Germany v European Parliament and Council of the European Union,

[2000], ECLI:EU:C:2000:324. 182

C-169/91 Council of the City of Stoke-on-Trent and Norwich City Council v B & Q plc.,[1992],

ECLI:EU:C:1992:519. 183

C-169/91 Council of the City of Stoke-on-Trent and Norwich City Council v B & Q plc., [1992],

ECLI:EU:C:1992:519, Opinion of Advocate General Fennelly, para. 149. 184

Treaty on the Functioning of the European Union, Article 45(3).

29

measures.185

However, the Court may be more inclined to approve restrictions to the free

movement created by Member States, if the measures have been justified with certain types

of sensitive interests; namely public policy, public morality or public security.186

Public security holds a special importance as a ground for justification concerning

restrictions to the freedom of movement, as preserving it remains one of the core functions

of the Member States. This means that in a situation where there is a genuine risk to public

security, a Member State has a strong authority to defend it.187

The reintroduction of border

control at internal borders seems to fall under the category of sensitive national interests, as

Article 23 SBC states that border controls may be reintroduced where there is a “serious

threat to public policy or internal security in a Member State”.188

Groussot has stated that “it is a mistake to think that the Member States measures are

always subject to a uniform and strict review”.189

The case law of the CJEU has shown that

there is no uniform way for testing the proportionality of Union or national measures and

that testing proportionality can be flexible but unreliable at the same time. Measuring

proportionality can be scaled according to the case at hand, and it can be applied with

varying extent depending on multiple factors.190

Despite these obscurities, proportionality

remains the most important tool for drawing the line between lawful and unlawful

impediments to free movement.191

3.2 Proportionality in the Schengen Borders Code

Checks within the territory and the temporary reintroduction of border control are

measures that can both create limitations to the free movement of persons. The former

cannot create major restrictions to the free movement between Member States, but it can

limit a person‟s freedom to move in the border areas by creating a requirement to hold or

carry documents or an obligation to present them to authorities when asked.192

The latter is

185

Tridimas 2006, p. 193. 186

Groussot 2006, p. 158. 187

Tridimas 2006, p. 226. 188


Groussot 2006, p. 158. 190

Ibid. p. 152. 191

Tridimas 2006, p. 207. 192

Van der Woude 2015.

30

clear restriction to the free movement of persons, as the objective of temporary

reintroduction of border control is to reinstate border checking procedures at internal

borders.193

Because both measures can create restrictions to one of the four freedoms of the

EU, it is presumable that the principle of proportionality is connected to their application.

The principle of proportionality is mentioned multiple times in the SBC. The human rights

side of the proportionality principle, as part of border checking procedures, is taken into

account in the opening recital 7 SBC, which states that border control “should be carried

out in a professional and respectful manner and be proportionate to the objectives

pursued.”194

Proportionality and human rights are also connected in Article 6 SBC, which

states that border guards are obliged to fully respect human dignity in their duties and that

these duties shall be proportionate to the objectives pursued.195

The proportionality principle is also mentioned in recital 19 SBC, which states that

establishing rules for the movement of persons across borders is better achieved at

Community level, rather than by the Member States. This is why the Community has the

power to adopt measures in accordance with the principles of subsidiarity and

proportionality as long as these measures do not cross what is necessary in order to achieve

its objective.196

3.2.1 Proportionality in temporary reintroduction of border control

Most of the mentions related to the principle of proportionality in the SBC are connected to

the temporary reintroduction of border control. The requirement to respect proportionality

is established in recital 15 SBC, which states that the conditions and procedure for the

temporary reintroduction of border control should be laid down by law “to ensure that any

such measure is exceptional and that the principle of proportionality is respected.”197

The

requirement to respect proportionality applies to all three situations where temporary

border controls can be reintroduced described in Chapter 2: foreseeable events (Article 23

193





Ibid. recital 15.

31

SBC), unforeseeable circumstances (Article 25 SBC) and exceptional circumstances

(Article 26 SBC).

As mentioned in Chapter 2, the primary requirement for reintroducing border control under

any of the three circumstances is “a serious threat to public policy or internal security in a

Member State”.198

In addition, Article 23 SBC refers to the requirement to respect

proportionality by mentioning that the scope and duration of these measures “shall not

exceed what is strictly necessary to respond to the serious threat.”199

This has been

interpreted by Member States in a way that these measures should not last any longer than

necessary and that the actions taken should not be any more restrictive than required by the

threat.200

In addition to the primary conditions set out in Article 23 SBC, Article 23a introduces

further criteria that need to be fulfilled in a situation where a Member State wishes to

reintroduce border control or to prolong a measure that has been applied in accordance

with Article 23 SBC (foreseeable events) or Article 25 SBC (unforeseeable

circumstances).201

The first criteria is that a Member State shall “assess the extent to which

such a measure is likely to adequately remedy the threat to public policy or internal

security”,202

which refers to assessing the necessity of the measure and whether it is likely

to address the threat at hand.203

The second requirement is that the Member State shall

“assess the proportionality of the measure in relation to that threat.”204

Simply put, the requirement to assess the proportionality of the measure means ensuring

that the previously mentioned scope and duration of the temporary reintroduction of border

control do not exceed what is strictly necessary.205

To further clarify what assessing the

necessity and proportionality means in this context, Article 23a paragraphs (a) and (b)

describe what should be taken into consideration, in particular, when making these

assessments. The first thing to consider is “the likely impact of any threats to its public

policy or internal security, including following terrorist incidents or threats and including

198


Ibid. 200


Schengen Borders Code, Article 23a. 202

Ibid. 203


Schengen Borders Code, Article 23a. 205

Jorgensen – Sorensen 2012, p. 8.

32

those posed by organised crime”.206

Secondly, this assessment should take into account

“the likely impact of such a measure on free movement of persons within the area without

internal border control.”207

When the 2013 SBC amendment was being drafted, it was proposed that this criterion

would also include taking into account any technical or financial support measures that

could be or have been resorted at national or Union level, including support from Union

bodies such as Frontex or Europol.208

It was also suggested that the Member States should

consider “the current and likely future impact of any serious deficiencies related to external

border control or return procedures identified by Schengen evaluations”209

; these two

criteria, however, did not make it to the final version of the amended SBC.

In foreseeable events, the requirement to assess the necessity and proportionality of the

measure is closely connected to the obligation to provide information about the planned

reintroduction. As it was mentioned in Chapter 2, Article 24(1) SBC requires the Member

State wishing to reintroduce border control to notify other Member States and the

Commission about the reasons, scope, duration and scale of the planned measure 4 weeks

beforehand.210

Therefore, in foreseeable events, when there is no need to rush the

reintroduction of border control, Member States are required to provide vast amounts of

information about the planned measure before the actual reintroduction.

The requirement to respect the principle of proportionality also applies to Article 25 SBC.

How proportionality should be taken into consideration in unforeseeable circumstances,

however, is not as clear as in foreseeable events. The rules for applying Article 25 SBC do

not mention proportionality directly. Instead, it is stated that the Member States applying

Article 25 “shall supply the information referred to in Article 24(1), including the reasons

that justify the use of the procedure set out in this Article.”211

As Article 24(1) SBC did not

include assessing proportionality, the only requirement that could refer to assessing

proportionality when applying Article 25 SBC are the reasons that justify the use of the

procedure, which are not clarified further.

206

Schengen Borders Code, Article 23a, paragraph (a). 207

Ibid. 208

Peers 2013, pp. 32-33. 209



Ibid. Article 25.

33

The requirement to respect the proportionality principle is not mentioned in Article 25

SBC directly until a Member State wishes to prolong the border controls reintroduced in

accordance with it. Then the Member State in question “shall take into account the criteria

referred to in Article 23a, including an updated assessment of the necessity and the

proportionality of the measure, and shall take into account any new elements.”212

However,

the wording “updated assessment” implies that the initial justification of the specific

procedure should also contain some kind of an assessment concerning proportionality.

The requirement to assess proportionality also applies to exceptional circumstances and

Article 26 SBC. If the Council recommends one or more Member States to reintroduce

border control based on serious deficiencies related to the management of the external

borders, the responsibility to assess the proportionality of these measures belongs to the

Council. For these situations, Article 26a SBC provides criteria similar to foreseeable

events that should be fulfilled in order to ensure that the proportionality principle is taken

into account.213

This criteria in Article 26a SBC includes assessing the likely impact of the reintroduction

procedure on the free movement of persons and the two considerations that were left

outside Article 23a SBC (foreseeable events) in the 2013 amendment: assessing the

availability of alternative technical or financial support measures that could be resorted at

national or Union level and the impact of serious deficiencies relating to external border

control that could constitute a serious threat to public policy or internal security in the

Schengen area.214

The responsibility to make these assessments does not solely rely on the

Council, as they should be based on information provided by the Member States concerned

and the Commission.215

The notification letters provided by Member States in foreseeable events and unforeseeable

circumstances, containing information referred to in Article 24(1) and assessments on the

necessity and proportionality, are subject to review by other Member States and the

212

Ibid. 213


See Peers 2013, p. 39 and Epiney – Egbuna-Joss 2016, p. 104. 215


34

Commission. Some of this information can be classified to other Member States, but the

Commission should always have full access to it.216

In addition to shortening the timeframe when notifications should be provided, the 2013

SBC amendment gave the Commission the power to request additional information from

the Member States if necessary.217

If the Commission has concerns regarding the necessity

or proportionality of the planned measure, or consultation on some aspect of the

notification is considered appropriate, it shall issue an opinion to that effect.218

This power

has been used during the migratory crisis on 23 October 2015, when the Commission

delivered its opinion regarding the reintroduction of border control in Germany and

Austria,219

which will be examined closer in Chapter 4.

3.2.2 Proportionality in checks within the territory

The requirement to respect the principle of proportionality is not present in checks within

the territory in the same way as it is present in the temporary reintroduction of border

control. In fact, the proportionality principle is not mentioned once in Article 21 SBC.

This, however, does not mean that the proportionality principle could not affect the

application of checks within the territory, as this section aims to prove. The absence of the

proportionality principle in checks within the territory can be explained with the different

nature of the measure if compared to the temporary reintroduction of border control, as the

purpose of Article 21 SBC is not to regain the control of internal borders in predetermined

situations, but to compensate for the lack of control at internal borders when border

controls were lifted.220

Instead of creating an obligation for the Member States to assess the proportionality of the

measures when applying Article 21 SBC, the exercise of police powers in border areas is

limited in other ways, as examined in Chapter 2. Prohibiting police measures from having

an equivalent effect to border checks is the most important restriction provided by Article

216


See Peers 2013, p. 37 and Schengen Borders Code, Article 24. 218


European Commission, Commission opinion on the on the necessity and proportionality of the controls at

internal borders reintroduced by Germany and Austria, C(2015) 7100. 23.10.2015. [Later European

Commission, C(2015) 7100 final]. 220

Epiney – Egbuna-Joss 2016, p. 96.

35

21(a) SBC.221

Although, the case law of the CJEU has demonstrated that sometimes

determining what can be considered as “equivalent” is rather complicated, strengthening

the fearful presumptions of the EU legislator when the SBC was drafted, concerning the

blurriness in the relationship between internal border controls and border checks.222

Even though Article 21(a) SBC introduced the 4-part list of measures that may not, in

particular, be considered equivalent, cases such as Melki and Abdeli and Adil have

demonstrated that this list is not exhaustive and there are many ways to interpret it. The

attempts of the CJEU to standardize the application of Article 21(a) in Melki and Abdeli

and Adil have clarified the interpretation of Article 21(a), but at the same time they have

extended the applicability of police performed identity checks.223

Attaching new objectives under Article 21 SBC, such as immigration control in case Adil,

has given the Member States a growingly flexible tool for controlling persons‟ movements

in the border areas.224

The fact that Member States now have extensive amounts of

discretion on how to perform SBC proof identity checks that are not connected to the

temporary reintroduction of border control, has raised concerns. These concerns should be

taken into consideration, especially in times when negative attitudes towards migration in

Europe are on the rise.225

Since Adil, more Member States have started looking for alternative ways to maintain

control over their internal borders without resorting to the temporary reintroduction of

border control. This has increased the popularity of checks within the territory as a form of

control that has a lighter impact on the Schengen system. In the year 2015, France,

Germany, Latvia, Austria, Italy and the Netherlands were implementing some kind of

police performed identity checks in their border areas. Due to the given flexibility, the

types of these checks vary, as some Member States perform them in more detail than

others.226

221




Adil. 225

Van der Woude - Van Berlo 2015,”Crimmigration at the Internal Borders of Europe? Examining the

Schengen Governance Package.” p. 77. 226

Ibid. pp. 77-78.

36

Germany is a good example of how the application of Article 21 SBC varies between

Member States, even after the two landmark judgments of the ECJ. In Germany, police

authorities are allowed to carry out identity checks on persons within 30 kilometre radius

from land borders.227

This border area is significantly larger than in France and the

Netherlands, where it has been limited to 20 kilometres following the judgment of Melki

and Abdeli, which clarified that the 20 kilometre radius used by the French authorities was

considered reasonable, but a larger 50 kilometre radius was considered to breach Article

21(a) SBC, as the territorial scope became too specified.228

This larger territorial scope

used in Germany is currently questioned as one of the preliminary questions in the pending

CJEU case of Amtsgericht Kehl v A (C-9/16).229

The problem with the current development of Article 21 SBC and the lack of

standardization is that police performed identity checks are slowly taking steps towards

actual border checks carried out by border guards. In some cases, the line between the

temporary reintroduction of border control and checks within the territory has been blurred

to a point where a question can be asked: “what exactly is the difference between police

checks within the border area and internal border controls”?230

If police performed identity

checks under Article 21 SBC are in fact starting to resemble the temporary reintroduction

of border control, then another question which should be asked is whether the principle of

proportionality should also be taken into closer consideration when applying Article 21

SBC.

These two questions have become topical especially in the Netherlands, which acts as a

trendsetter when it comes to the application of Article 21 SBC among the Member

States.231

Checks within the territory in the Netherlands are carried out in the form of

Mobile Security Monitor (MSM) introduced in 1994, with a purpose of limiting

illegitimate entry and stay of foreigners. MSM checks are carried out by the Royal

Netherlands Marechaussee, which acts as Border Police. Since the introduction of MSM,

227

Ibid. p. 77. 228

Melki and Abdeli, para. 72. 229

C-9/16, Request for a preliminary ruling in Amtsgericht Kehl v A lodged on 7.1.2016. Official Journal C

136, 18.4.2016, pp. 8-9. 230


Van der Woude 2015.

37

their scope has expanded to fight different types of cross-border crime; such as identity

fraud and smuggling.232

The Netherlands is one of the few Member States that took action following the ECJ

judgment of Melki and Abdeli and updated their national legislation according to the

recommendation of the Court to guarantee that the MSM remained non-equivalent to

border checks.233

After these amendments, section 50(1) of the Netherlands Aliens Act of

2000 combined with the Netherlands Aliens Decree allows the Border Police to stop any

person based on reasonable suspicion, in order to check their identity, nationality or

residence status.234

MSM checks can be performed to any persons entering the Netherlands

territory by plane, train or vehicle in a border area reaching 20 kilometres from land

borders, similar to the territorial scope described in Melki and Abdeli.235

Before 2010, MSM checks could be performed widely without major restrictions on roads,

railways and airports, but after Melki and Abdeli they were limited to 6 hours a day with a

maximum of 90 hours a month.236

The amended legislation concerning the application of

the MSM was reviewed by the ECJ in 2012 in the Dutch originated judgment of Adil,

which clarified these amendments sufficient and that the national legislation in the

Netherlands was detailed enough to guarantee that the practical exercise of MSM checks

remained non-equivalent to border checks.237

The judgment of Adil and acceptance of the CJEU towards Dutch national legislation

encouraged the Netherlands to push even further amendments into their application of

Article 21(a) SBC. During 2014, the frequency of MSM checks was increased. In July

2014, a new Article 4.17a was introduced into the Netherlands Aliens Decree, enabling

intensifying MSM checks temporarily, in a situation where there is solid proof of a

significant increase in illegal border crossing that can lead into increase in illegal

residence. This new rule enabled the doubling of the previously mentioned limitations.

232

Van der Woude - Van Berlo 2015, p. 77. 233

Van der Woude 2015. 234

Netherlands Aliens Act, Section 50(1). 235



Adil, para. 39.

38

MSM checks could now be carried out up to 12 hours a day and 180 hours a month on all

land, air and sea borders.238

The possibility to intensify MSM controls under special circumstances gave the

Netherlands a powerful new tool to control migration flows into its territory and created a

situation where the law in practice was becoming very different from the law in books, if

looking solely at the Article 21 in the SBC.239

Despite these significant changes, this new

legislation did not oblige the Netherlands to assess the proportionality of the intensifying

measure, as it has never been part of Article 21 SBC. The omission of the principle of

proportionality and the vagueness of the conditions that were required to be fulfilled in

order to apply intensified MSM controls would prove to be problematic later during the

migratory crisis of 2015 which will be examined in the following Chapter 4.

238


Ibid.

39

4 MANAGING INTERNAL BORDERS IN TIMES OF CRISIS

4.1 Effects of the migratory crisis

The migratory crisis that began in 2015 when over 1.82 million illegal border-crossings

were detected along the external Schengen borders, over 6 times more than in the previous

year, is the main reason for the recent limitations to the free movement within the

Schengen area and the tightening control of the internal borders.240

Despite recent crises

with shared similarities, such as the Arab Spring situation in 2011, migratory flows of this

scale have not been seen in Europe since the Second World War, creating an unforeseen

challenge for the modern Schengen system.241

Most of the illegal border crossings in 2015 were detected on 3 main routes: Western

Balkan, Eastern Mediterranean and Central Mediterranean routes, consisting mainly of

Syrian, Afghan and Iraqi nationals.242

Greece and Italy were particularly troubled, as the

Mediterranean border between Turkey and Greece was a major chokepoint for migrants

making their way to Europe.243

The European Asylum Support Office reported a total of

1.35 million registered asylum applications in 2015, the highest number since the

collection of this data had begun in 2008.244

This was a challenge for the new EU asylum

acquis, which entered into force in July 2015.245

The basic rules for receiving and processing asylum seekers can be found in the Dublin III

Regulation, under which the Member State of first entry had the responsibility to register

and accommodate asylum applicants entering the EU.246

Attempts to register and

accommodate all of the arriving migrants in Greece and Italy resulted in failure, leading

into a situation where the rules of the Dublin Regulation could no longer be obeyed.

Because of these failures, separation between refugees seeking for international protection

and economic migrants looking for better living conditions could no longer be made, also

allowing unwanted persons to enter Europe, increasing the threat of terrorism. 247

240

Frontex 2016, p. 16. 241


Frontex 2016, p. 16. 243

Ibid. p. 14. 244

Ibid. p. 30. 245

Ibid., p. 31. 246

Dublin Regulation. 247

Kaca 2016, p. 2

40

The collapse of the asylum system in the southern Member States of first entry created a

requirement to give away the Dublin Regulation rules, and the Commission introduced a

new approach to the situation, allowing the relocation of 160,000 asylum applicants

staying in Italy and Greece. Early relocations struggled as Member States did not share a

common consensus on how the crisis should be solved. Some Member States started

favouring their national interests over harmony in the EU, which fuelled political debate

over the issue.248

The beginning of the migratory crisis pressured the external border and asylum systems of

the Member States of first entry. When the management of the external borders and

receiving migrants started to fail, this pressure shifted into massive secondary movements

inside the Schengen area, challenging the management of internal borders as well. Because

many of the migrants were left unregistered, instead of having their asylum applications

processed by the Member State of first entry under the Dublin Regulation rules, they could

continue their way deeper into Europe and towards the Member State of their choice.249

This resulted in about a million migrants travelling through Europe without proper

travelling documents, mostly towards Germany, causing chaos and leaving the Member

States in their way puzzled over how to deal with this situation.250

During 2015, Member States applied different measures to control secondary movements

into their territories. In Hungary, a fence was raised on the border with Serbia, also acting

as the external border of the Schengen area. Raising a wall with a non-EU state was not

strictly contrary to EU law, but it raised questions about the proportionality of measure and

internationally guaranteed fundamental rights of the refugees, particularly the principle of

non-refoulement.251

The principle of non-refoulement is closely connected to the measures that create

limitations to the freedom of movement, and balancing it has been required during the

migratory crisis of 2015. The non-refoulement principle is internationally regarded as one

of the cornerstone principles of refugee protection, as it prevents refugees from being

248

Greenhill 2016, p. 317 249

European Commission, COM(2015) 675, p.5. 250

Frontex 2016, p. 32. 251

European Commission, COM(2015) 675, p. 2.

41

turned away or returned to areas where their lives or freedom could be threatened.252

Despite the good intensions of non-refoulement, its downside on a global scale has been

that many states have experienced it as a back door mechanism that allows any migrant to

become an asylum seeker, leaving little or no power for the states to decide who is eligible

for asylum.

The desire to maintain state sovereignty in deciding who is allowed to enter and who is

not, coupled with the fact that returning rejected asylum seekers can turn out to be a

difficult process, due to the lack of nationality identifications and difficulties in finding

countries that would be willing to accept them, has led to a situation where states would

rather prevent migrants from reaching their territory in the first place.253

4.2 Reintroduction of temporary border control in 2015

Since the beginning of the migratory crisis in 2015, a total of eight Member States have

reintroduced temporary border controls at their internal borders, for variable periods of

time, in response to a serious threat to public policy or internal security created by

secondary movements of irregular migrants: Germany, Austria, Hungary, Slovenia,

Sweden, Norway, Denmark and Belgium.254

During these reintroductions, all three situations where temporary border controls can be

applied have been represented. In all of the eight Member States the initial decisions to

reintroduce internal border control were made in accordance with unforeseeable

circumstances and Article 25 SBC. As the situation developed, some of the Member States

prolonged their border controls based on foreseeable events and Article 23 SBC.255

Finally,

Article 26 SBC was applied by the Council in May 2016 to recommend Germany, Austria,

Sweden, Norway and Denmark to continue border controls at their internal borders based

on exceptional circumstances putting the overall functioning of the Schengen area at

risk.256

252

See Gammeltoft-Hansen 2011, ”Access to Asylum”, p. 44 and The UN Refugee Agency, Note on Non-

Refoulement (Submitted by the High Commissioner), EC/SCP/2, 23.8.1977. 253

Gammeltoft-Hansen 2011, p. 15. 254



Council Document, 8835/16, p. 4.

42

Germany was the first Member State to reintroduce temporary border controls on 13

September 2015, taking effect immediately on all land, air and sea borders.257

On the

following day, the Commission received a letter from the German federal minister of

interior Thomas de Maizière, concerning the report on the measure and containing

reasoning that justified the use of the immediate procedure, as required by Article 25 SBC.

In this letter, de Maizière stated that the uncontrolled flow of TCNs into German territory

had made it impossible to determine who was entering and staying in Germany, to a point

where any further arrivals were considered to endanger the public order and internal

security. In order to respond to this threat, the decision to apply border controls at borders

was made after careful consideration and given the lack of alternatives.258

Border controls in Germany were focused on the German-Austrian land border. To

emphasize the exceptionality of this measure, de Maizière stated that “[t]hese border

controls will be only as extensive and intense as needed to ensure security.”259

The last part

of this letter emphasized that, despite the challenging situation in the southern Member

States, the Dublin III Regulation was still intact and Member States of first entry were

responsible for registering and processing any asylum seekers entering their territory. The

German view was that asylum seekers should not expect to have the possibility to choose

which Member State they wished to seek protection from and Germany should not be held

responsible for the large groups of migrants who have illegally entered its territory.260

Two days after the application of Article 25 SBC in Germany, Austria also informed that it

would be reintroducing temporary border controls beginning from 16 September 2015. The

Austrian measure was justified in a manner similar to Germany: the application of Article

25 SBC was seen necessary in order to “prevent a threat to public order and internal

security and a continuous overburdening of the police, emergency services and public

infrastructure, and to allow the Austrian Federal Police bodies to perform their duties

257


Temporary reintroduction of border controls at the German internal borders in accordance with Article 25

of Regulation (EC) No 562/2006 establishing a Community Code on the rules governing the movement of

persons across borders (Schengen Borders Code), 11986/15, 14.9.2015, p. 2. 259

Ibid. 260

Ibid. pp. 2-3.

43

thoroughly at the internal borders.”261

In addition, the Austrian notification included an

almost word-for-word copy from Germany‟s note, regarding the role and state of Dublin

III Regulation stating that, like Germany, Austria should not be held responsible for the

large majority of illegal immigrants in its territory.262

Slovenia and Hungary were the next Member States to apply Article 25 SBC on 17

September 2015. It appeared that the initial reintroduction of border control in Germany

had started a domino effect that was spreading fast through its neighbouring Member

States in Central Europe.263

The influence of the neighbouring Member States could be

noticed in the notifications provided to the Commission, as Slovenian delegation justified

the application of Article 25 SBC with “uncontrollable migration flows in the region,

coupled with the measures recently adopted by the neighbouring countries”.264

A similar domino effect of a smaller scale could be noticed in Northern Europe, when

Sweden reintroduced border controls on 12 November, followed by Norway on 26

November 2015. This was not the first time Norway and Sweden followed each other‟s

example when reintroducing temporary border controls, as noted in Chapter 2, as a similar

effect was seen following the bomb explosion in Oslo and shooting on the island of Utøya

on 22 July 2011, when Sweden applied Article 25 SBC only five and a half hours after

Norway.265

Border controls in Sweden and Norway were justified in a manner similar to preceding

Member States.266

In addition, the Swedish delegation was concerned that mixed migratory

flows could include victims of human trafficking who were not seeking to legalize their

stay in Sweden and therefore constituted as “easy targets for perpetrators ready to abuse

261

Temporary reintroduction of border controls at the Austrian internal borders in accordance with Article 25

of Regulation (EC) No 562/2006 establishing a Community Code on the rules governing the movement of

persons across borders (Schengen Borders Code), 12110/15, 17.9.2015. 262

Council Document 12110/15. 263

Kaca 2016, p. 4. 264

Temporary reintroduction of border controls at the Slovenian internal borders in accordance with Article

25 of Regulation (EC) No 562/2006 establishing a Community Code on the rules governing the movement of

persons across borders (Schengen Borders Code), 12111/15, 17.9.2015. 265


Prolongation of the temporary reintroduction of border controls at the Norwegian internal borders in

accordance with Article 25 of Regulation (EC) 562/2006 establishing a Community Code on the rules

governing the movement of persons across borders (Schengen Borders Code), 14996/15, 4.12.2015.

44

their vulnerable situation.”267

This presumption was justifiable, because economic migrants

have been seen as potential victims for human smugglers.268

This addition strengthened the

argument to introduce border controls, as human trafficking has been labelled as a form of

unauthorized immigration and criminalized in the EU since 1997.269

In early 2016, internal border controls were also introduced in Denmark on 4 January,

focusing on ferries and the land border with Germany, and in Belgium on 23 February,270

further strengthening the theory that border controls were spreading through Europe from

one neighbouring Member State to another. It should be noted that during this time period,

internal border controls were reintroduced also in Malta and France, but these measures

were not solely based on the migratory crisis, but on the threat of terrorism and smuggling

of illegal immigrants. In France, border controls were introduced on 13 November 2015

for the duration of the UN Conference on Climate Change, but they were prolonged due to

the terrorist attacks in Paris on the same day, leading France into an emergency state that is

still continuing in July 2017.271

The notification letters provided to the Commission by the eight Member States were

relatively short in length, similar in content and had no direct mentions related to the

principle of proportionality.272

As the application of Article 25 SBC in unforeseeable

circumstances did not yet require fully assessing the proportionality of the measures, the

most significant content of these letters were the reasons justifying the use of the specific

procedure for cases requiring immediate action.

Following the example set by the German delegation, all eight Member States justified

their measures on the massive and uncontrolled flow of TCNs into their territory, forcing

the reintroduction of border control in order to prevent further serious threats to public

267

Temporary reintroduction of border controls at the Swedish internal borders in accordance with Article 23

and 25 of Regulation (EC) 562/2006 establishing a Community Code on the rules governing the movement

of persons across border (Schengen Borders Code), 14047/15, 12.11.2015. 268

McCreight 2006, “Smuggling of Migrants, Trafficking in Human Beings and Irregular Migration on a

Comparative Perspective”, European Law Journal (2006), Vol 12, No. 1, p. 107. 269

Joint Action of 24 February 1997 adopted by the Council on the basis of Article K.3 of the Treaty on

European Union concerning action to combat trafficking in human beings and sexual exploitation of children.

Official Journal L 63, 4.3.1997, pp. 2-6. 270


See European Commission, COM(2016) 120 final, p. 10 and European Commission 2017, section:

Temporary Reintroduction of Border Control. 272

See the above-mentioned notification letters of Member States.

45

order and internal security.273 The fact that this large number of migrants was used as the

main reason for justifying these measures was surprising, because when the SBC was

amended in 2013, the European Parliament and the Council stated that “Migration and the

crossing of external borders by a large number of third-country nationals should not, per

se, be considered to be a threat to public policy or internal security”.274

Based on recital 5 of the amending SBC regulation of 2013, actions taken by the Member

States during the migratory crisis of 2015 were clearly contrary to the will of the EU

legislator presented only two years earlier. However, at this point when border controls

were reintroduced in accordance with the specific procedure for cases requiring immediate

action described in Article 25 SBC, there was little the Commission or other Member

States could do, as there were no opportunities for discussing or criticizing the measures in

joint meetings.

4.2.1 Prolongation of temporary border controls

Because temporary border controls in the eight Member States were reintroduced in

accordance with Article 25 SBC, their initial duration was limited to only 10 days. As the

uncertain situation at the external and internal borders continued, it was clear that border

controls would need to be prolonged to safeguard public policy and internal security. These

prolongations would need to be made either under the specific procedure described in

Article 25 SBC, limiting the maximum duration of the measures to two months, or under

Article 23 SBC, which allowed carrying out controls up to six months.

As the initiators of the so called domino effect of internal border control, Germany and

Austria were the first Member States where the prolongation of internal border control

became topical. In both Germany and Austria, border controls were prolonged twice in line

with Article 25 SBC for the duration of 20 days, after which the authorities of both

273

Ibid. 274

Regulation (EU) No 1051/2013 of the European Parliament and the Council of 22 October 2013 amending

Regulation (EC) No 562/2006 in order to provide for common rules on the temporary reintroduction of

border control at internal borders in exceptional circumstances. Official Journal L 295/1, 6.11.2013, recital 5.

[Later the SBC amendment].

46

Member States informed that prolongations were intended to continue under Articles 23

and 24 SBC, if the situation at the borders did not change.275

As mentioned in Chapter 3, the reintroduction of border control in accordance with Article

25 SBC obliged the eight Member States to provide information referred to in Article 24(1)

SBC (reasons, scope, names of affected border crossing-points and planned duration) and

reasons justifying the use of the specific procedure. This, however, did not include

assessing the proportionality of the measure, which was reserved for situations when these

controls were prolonged. Now that Germany and Austria wished to continue border

controls in accordance with Article 25 SBC, they were required to take into account the

full criteria referred to in Article 23a, including the detailed proportionality assessment.276

Now, as Germany and Austria announced their plans to prolong controls in accordance

with Article 25 SBC, the Commission had its first possibility to address the necessity and

proportionality of the measures. The starting point was that the Commission was not

pleased with the quality and coverage of the initial notification letters. A request was made

that Germany and Austria would need to provide additional information about their

measures, containing figures that would better demonstrate their necessity. The

Commission was especially interested in the numbers of TCNs entering the Member

States‟ territories via the relevant border sections targeted by temporary border controls

and whether this data could be used to pinpoint threats to public policy or internal

security.277

The reply of the German delegation stated that so far in October 2015, some 527,000

TCNs had been registered as asylum seekers, which was twice as much as in the whole

previous year. Thousands of new migrants, not yet screened by any other Member State,

continued to enter Germany through the German-Austrian border daily, which was seen as

a sufficient reason to focus border controls on this section of the border.278

In its defence,

Germany had been overloaded with migrants even before border controls were introduced,

due to its policy of open borders in the beginning of the crisis. Estimates of people who

275

European Commission, C(2015) 7100 final, pp. 3-5. 276



Ibid. p. 4.

47

had already been sheltered during open borders varied from tens of thousands to hundreds

of thousands.279

Temporary border controls in Germany were considered proportionate, as free movement

had only been limited to the extent that was necessary on grounds of security. Border

checks were not carried out at all German borders, but they were concentrated on the

border sections along the German-Austrian border, which had proved to be the most

problematic. Even if border checks were now applied, the possibility to cross borders was

not limited, apart from some suspended cross-border train connections with Austria.280

In Austria, the number of migrants seeking for protection was not as huge, but dealing with

the crisis had overloaded authorities‟ resources to a point, where border controls were seen

necessary in order to continue screening and registering migrants that were entering the

Austrian territory on a daily basis. So far, there had not been direct evidence of extremist

groups abusing the movement of the migrants, but the large number of refusals of entry in

Austria and numerous SIS and Interpol hits in Slovenia suggested that immigration flows

of this size were likely to contain unwanted individuals, such as lone extremists or those

who were linked to criminal organisations or military groups.281

Similar to the reasoning in Germany, Austria considered its reintroduction of border

control proportionate, as controls were concentrated on the Slovenian and Hungarian

borders, leaving other land borders and airports untouched. An interesting mention in the

Austrian response was that suspending international trains and closing down motorway

sections were not considered as border control measures, but as measures protecting the

“physical integrity of the arriving persons and of the local population”.282

Despite these replies, the Commission was still not pleased with the information it had

received. After the second prolongation of border control in Germany, the Commission

requested further and even more detailed information from the German authorities. After

repeating what had already been said, the German authorities supplemented their

justification with warnings they had received from Austria and Slovenia related to

279

Menéndez 2016, p. 400. 280

European Commission, C(2015) 7100 final, p. 4. 281

Ibid. pp. 3-6. 282

Ibid. p. 5.

48

unwanted persons, with connections to criminal or militant groups, hiding among asylum

seekers.283

As the situation at the internal borders saw no change, the Member States continued

prolonging their measures in accordance with Articles 23 and 24 SBC.284

These

prolongations were supported by the Council‟s Implementing Decision on 12 May 2016,

setting out a recommendation for temporary internal border control in exceptional

circumstances putting the overall functioning of the Schengen area at risk. In this decision

the Council recommended Germany, Austria, Sweden, Norway and Denmark to “maintain

proportionate temporary border controls for a maximum period of six months, starting

from the day of the adoption of this Implementing Decision”,285

giving these five member

states an opportunity to prolong their internal border controls for another 6 months, as long

as the guidelines regarding necessity and proportionality were followed.

In July 2017, one year and nine months after Germany had first applied Article 25 SBC,

five Member States – Germany, Austria, Denmark, Sweden and Norway – were still

carrying out border controls at their internal borders. In Hungary and Slovenia, border

controls lasted only for 10 days and no further prolongations were considered necessary,

despite the similar reasoning for implementing these controls.286

At the same time, the

majority of the 26 Schengen States did not take any action to limit the arrival of

migrants.287

Differences between Member States‟ reactions to the migratory crisis and the

fact that border controls in Germany and Austria remained rather limited in their fashion to

ensure the minimal effect on the freedom of movement, raised questions over whether

border controls were really as necessary as thought.

4.2.2 Commission opinion on the German and Austrian measures

The Commission published its opinion on the necessity and proportionality of the controls

at internal borders reintroduced by Germany and Austria on 23 October 2015. This opinion

was based on the initial notification letters provided by Germany and Austria and the

283



Council Document, 8835/16, p. 8. 286


Guild, Brouwer, Groenendijk and Carrera 2015, p. 8.

49

replies it had received to its inquiries. The way the Commission had reacted to the

prolongation of border control in Germany and Austria signalled that it was not fully

pleased with the limitations to free movement. Therefore, it was surprising that in this

opinion the Commission came to a fairly quick conclusion that temporary border controls

at the internal borders of Germany and Austria, as well as their prolongations, were made

in compliance with the SBC.288

The Commission found the application of Article 25 SBC in Germany and Austria

necessary and proportionate, even though it reminded that the reintroduction of border

control should not be justified with large migratory flows, as stated in recital 5 of the

amending Regulation.289

What made the Commission steer away from the earlier view of

the EU legislator was the sheer amount of migrants entering German and Austrian

territories. Border controls were considered as “an adequate response to the identified

threat to the internal security and public policy, consisting of the uncontrolled influx of

exceptionally large numbers of undocumented/improperly documented persons and the

risk related to organised crime and terrorist threats.”290

What the Commission did not agree with, however, was using the threat of high-risk

individuals hiding among asylum seekers as the sole reason to declare a serious threat to

public policy and internal security. The Commission stated that doing so would first

require “quantifying the warnings on persons who may have had contacts to or fought with

militant groups in crisis regions.”291

This, however, highlighted the need for systematically

screening and registering migrants, something that could not be performed without border

checking procedures, further supporting the temporary reintroduction of border control.292

The application of Article 25 SBC in Germany and Austria was considered proportionate

for a couple of reasons. Firstly, border controls helped in screening and registering

migrants without impinging the right to seek international protection in the form of asylum.

Secondly, border controls were performed in a limited fashion, concentrated on the border

sections identified as the main routes used by migrants, further indicating their limited

288

See Ghimis 2015, “The refugee crisis: Schengen‟s slippery slope”, p. 1. and Guild, Brouwer, Groenendijk

and Carrera 2015, p. 9. 289


Ibid, p. 7. 291

Ibid. 292

Ibid.

50

effect on free movement. Thirdly, border controls did not seem to have a big impact on the

normal traffic flows in and out of Germany and Austria. Even the temporary suspensions

of train connections between these two countries were considered proportionate, as these

destinations could be reached via other transport means.293

One detail worth noticing in this assessment was that, when speaking of border controls in

Germany, the Commission noted that it had “not received so far any complaints from [EU]

citizens about the way border controls are carried out in practice”;294

further proving

Germany‟s attempts to limit the negative effects of applying Article 25 SBC. This was

surprising, because even though these controls had a negative impact on the free movement

of both Union citizens and TCNs, the main purpose of these controls was to restrict the

entry of migrants from third countries. Still the Commission considered the opinions of EU

citizens worthwhile on this issue, even though it was not the Union citizens‟ task to

safeguard the four freedoms.

To conclude the proportionality assessments, the Commission stated that “The overall

number, location and frequency of the controls do not seem to impede on the freedom of

movement in the areas concerned.”295

Disappointing in this assessment was the fact that it

did not explain how the proportionality of these two measures was actually measured.

Necessity and proportionality are mentioned multiple times, but there is no mention of the

traditional ways for measuring proportionality, such as the two part or three part tests

examined in Chapter 2. There were also no mentions related to the suitability of

proportionality in the strict sense, leaving these assessments hollow.

4.3 Intensified checks within the territory in the Netherlands

The Netherlands was another Member State to strengthen its grasp of its national borders

during the migratory crisis of 2015, but unlike in the above-mentioned eight Member

States, controls in the Netherlands were not based on temporary reintroduction of internal

border control and Articles 23–26 SBC, but on checks within the territory as described in

Article 21 SBC.

293

Ibid. pp. 7-8. 294

Ibid. p. 8. 295

Ibid.

51

In September 2015, the Netherlands applied for the first time the new Article 4.17a of the

Netherlands Aliens Decree, introduced in the aftermath of case Adil, allowing intensifying

the intensity and frequency of MSM checks and doubling their numbers from 6 hours a day

and 90 hours a month up to 12 hours a day and 180 hours a month.296

Intensifying MSM controls in accordance with Article 4.17a was restricted to situations

where there was concrete proof of increase in irregular migration that could lead into the

growth of unlawful residence.297

This condition was considered to be fulfilled and the

introduction of intensified MSM was justified with the attempt to control the rising

numbers of migrants and to prevent human smugglers from taking advantage of the

vulnerable position of asylum seekers.298

The duration of the intensified MSM checks was prolonged for the first time in October

and the second time in November 2015. Simultaneously with the first prolongation, the

justification of these controls was updated by the Netherlands Secretary of State for

Security and Justice and three main goals for the intensified MSM were listed. The first

goal of the three was the fight against irregular migration and human smugglers, which

sounded similar to the justification of temporary border control in the eight Member States.

The second goal was to prevent humanly degrading incidents,299

which referred to an

incident in Austria where 71 refugees had died on board an abandoned truck.300

The third goal was to prevent incidents from threatening public order and national security

in the Netherlands, resembling the wording “public policy or internal security”, used in

Article 23 SBC in connection with temporary border control. The latter decision to prolong

MSM in November was also affected by the terrorist attacks that happened in Paris in the

same month and the declaration of an emergency state in France.301

Intensified MSM checks were not introduced without any objection. The intensity and

frequency of MSM had been limited after Melki and Abdeli for a reason to ensure that they

296


See Van der Woude 2015 and Guild, Brouwer, Groenendijk and Carrera 2015, p. 16. 298


Ibid. 300

Ghimis 2015, p. 1. 301


52

remained non-equivalent to border checks. Now, as these restrictions were suddenly

removed and the intensity of the MSM doubled, there were concerns about the legality of

this measure and whether the situation at the internal borders could be used to prove a

considerable increase in unlawful residence.302

Despite the fact that Article 4.17a was now applied for the first time, doubts concerning its

legality were not completely new. When the Aliens Decree was amended in 2014, the

Netherlands Advisory Committee on Migration Affairs had expressed its concerns

regarding the vagueness of grounds for justification of the intensified MSM, which could

lead into applying the new article based on illegitimate grounds.303

These doubts reminded

of the fears the EU legislator had when the SBC was being drafted, concerning checks

within the territory becoming an alternate form of border control.304

The concerns of the

Advisory Committee were taken into account in drafting Article 4.17a, and it was

supplemented with the requirement to specify the reasons justifying its application in a

way that allows the lawfulness of the measure to be reviewed by a judge.305

Not long after the intensified MSM controls were applied, two Dutch lower courts were

required to provide decisions on the lawfulness of apprehensions performed to migrants

under this new measure. On 16 November 2015, a lower court in Groningen found

intensified MSM checks to be in line with the national legislation and the SBC, while

another court in Rotterdam declared the measure insufficient few weeks later on 3

December 2015. The judgment of the Rotterdam court was strict, as it stated that

intensified MSM checks were conflicting with the national legislation and to be nullified

immediately and any migrants put into detention during these checks released.306

The decision of the Rotterdam court was reasoned with insufficient information provided

by the Netherlands government, which did not give enough reasons that would have

justified intensifying the MSM. This judgement made a separation between asylum

seekers, who were considered to be lawfully resident in the Netherlands, and irregular

migrants, who were not. Even though the numbers of asylum seekers entering the Dutch

302

See Van der Woude 2015 and Adil, para. 86. 303





53

territory were higher than usual, they were still considered to be legally present and their

high number alone was not considered serious enough a reason to intensify the MSM.307

The fact that these two national courts came to opposite conclusions concerning the

legality of the MSM showcased how uncertain the legal basis for intensifying the MSM

was, even though the national legislation concerning the implementation of Article 21 SBC

was the most advanced among the Member States.308

The disapproval of the Rotterdam

court towards the justification of the intensified MSM was surprising, because at the same

time very similar reasons were used to justify temporary border controls in the eight

Member States applying Article 25 SBC.

Despite the similarities in the justification of temporary reintroduction of border control

and checks within the territory, one significant difference between these measures was that

Article 21 SBC did not oblige the Netherlands to notify other Member States or the

Commission, or to provide assessments concerning the proportionality of the measure.309

Even if these two measures were applied for similar reasons and/or to reach similar goals,

their strain on the Schengen system was very different, as checks within the territory could

be considered as a lighter alternative for temporary border control.

Intensified MSM controls in the Netherlands showed that despite the earlier judgements

regarding the interpretation of Article 21 SBC, Member States still enjoyed large amounts

of discretion when it came to implementing the rules of the SBC in their national

legislation.310

This can be worrying when looking at the recent development of

immigration control and how mass migration is being treated at external and internal

Schengen borders.

307


Ibid. 309

Brouwer 2015. 310

Van der Woude 2015.

54

4.4 Migratory flows as justification

4.4.1 Changes in the concept of asylum

It appears that the ultimate reason for both exceptions to the abolition of internal border

control in the EU during 2015 were made to restrict the arrival of immigrants, regardless of

the wordings in the Member States‟ notification letters or in the opinions of the

Commission.311

If the view of the EU legislator presented in 2013 was that large numbers

of TCNs crossing external borders should not be considered as a threat to public policy or

internal security, then a question can be asked: why were these restrictions to the freedom

of movement suddenly considered as an adequate and proportionate response to the

migratory crisis?312

The Commission opinion on the necessity and proportionality of the border controls in

Germany and Austria found these measures to be in line with the SBC based on the sheer

amount of undocumented migrants entering German and Austrian territory.313

Large

numbers of arriving migrants were used as an excuse to move away from the rules laid out

in the amending Regulation of 2013, even though these numbers of migrants should not

have come as a surprise after the Arab Spring situation in 2011, despite its smaller scale.

The sudden reconsideration of what should be seen as a serious threat to public policy or

internal security suggested that something had changed in a relatively short time, making

uncontrolled migratory flows a greater threat to the EU than they used to be in the

aftermath of the Arab Spring. Reasons for this turnaround can be searched from the recent

changes in the concept of asylum.

The UN Refugee Convention of 1951 describes a refugee as someone who is “unable or

unwilling to return to their country of origin owing to a well-founded fear of being

persecuted for reasons of race, religion, nationality, membership of a particular social

group, or political opinion.”314

This so called persecution requirement was well suited for

the Cold War era, when the concept of asylum was introduced and the majority of refugees

seeking protection in the West were fleeing oppressive states. Nowadays the reasons for

seeking asylum are much more diverse, creating pressure on the traditional focus of

311

Guild, Brouwer, Groenendijk and Carrera 2015, p. 10 312

The SBC amendment, recital 5. 313


UN Convention Relating to the Status of Refugees 1951, p. 3.

55

asylum: refugees fleeing from civil war, famine or poverty might need protection as much

as persecuted people, but they might not fulfil the original persecution requirement.315

Two recent trends for asylum policy include granting asylum for those who would not be

accepted, if the traditional persecution requirements were still interpreted in a strict sense,

and restricting the entry of migrants, supported by the view that the numbers of asylum

seekers are growing too high.316

High numbers of asylum seekers bring up negative public

opinions on migration, which are fuelled by the media that in times of mass migration

often describes immigrants as uninvited guests and a threat to the modern society.317

Negative opinions on migration benefit politicians with strong anti-immigration stances,

agitating discussion related to stricter border policies and further restrictions to free

movement; this is something that has been seen in the Netherlands in the 2010s.318

Fear of migration is often connected to the fear of terrorism. In many Western countries,

discussing migration has become overly concerned about security issues since the terrorist

attacks of 11 September in the United States (US).319

In the US, negative attitudes towards

migration and the pursuit for high security borders has led into militarising the US-

Mexican border area, where violence has become a legitimate answer to illegal

immigration.320

Current development in the US has led to the increase in the use of

biometrics and other surveillance technologies that allow tracking a person‟s movements

and help determining whether they should be allowed to enter the US or not.321

After 9/11, EU relations with third countries have also become more security oriented,

which can be noticed in developing more proactive border control policies in order to fight

the threat of terrorism.322

Increase in the use of surveillance technologies can also be

noticed at EU level, and legislative proposals, such as the Smart Borders package, seek to

315

Price 2009, p. 4. 316

Ibid. p. 11. 317

See Singh Bhui 2013, ”Humanizing Migration Control and Detention”, p. 2 and Zedner 2013, ”Is the

Criminal Law Only for Citizens?”. In Franko Aas, Katja and Bosworth, Mary (Eds.): The Borders of

Punishment: Migration, Citizenship and Social Exclusion. Oxford University Press, p. 48. 318

Franko Aas 2013, ”The Ordered and the Bordered Society”. In Franko Aas, Katja and Bosworth, Mary

(Eds.): The Borders of Punishment: Migration, Citizenship and Social Exclusion. Oxford University Press, p.

34. 319

Barnard 2013, p. 539. 320

Singh Bhui 2013, p. 4. 321

Zaiotti 2011, p. 200. 322

Ibid. p. 178.

56

strengthen the security of the external Schengen borders by increasing the use of

biometrics and providing more information of TCNs‟ movements.323

Managing migration nowadays requires dividing migrants into groups of desirable and

undesirable migrants.324

When asylum systems are overloaded with many different types of

migrants seeking for protection, making this division becomes much harder. Suddenly

strengthening control over national borders appears a tempting opportunity to maintain

control over those who are allowed to enter and to keep economic refugees, human

traffickers, terrorists and other criminals out. This thought process could be seen in the

letters provided to the Commission by Germany and Austria, even though there was no

concrete evidence of extremists hiding among the refugees.325

When different forms of control are introduced at internal borders, there is always a risk

that they hinder the possibility of legitimate asylum seekers to have their claims heard,326

even when Member States applying such controls report that the right to seek international

protection is left untouched, like in the case of Germany and Austria in 2015.327

Still, both

exceptions to the abolition of external border control in the EU appear to be legitimate

ways of controlling migration, which at the same time, is continuously expanding and

finding new forms.

4.4.2 Expansion of migration control

In 2009, the Commission estimated that about 780,000 people in the EU were cross-border

commuters, who crossed borders daily due to work or other reasons.328

Mass border

crossing has become an essential feature for the modern world, pushed by globalism and

capitalist economies that depend on the free movement of goods and currencies. Therefore

crossing borders, in itself, can hardly be classified as a crime.329

Border crossing related

323

European Parliament, “Smart Borders: EU Entry/Exit System”, briefing July 2016, p. 2. 324

Barnard 2013, p. 551. 325


Price 2009, p. 233. 327


European Commission 2009, ”Scientific Report on the Mobility of Cross-Border Workers within the EU-

27/EEA/EFTA Countries”, p. VII. 329

Bowling 2013, ”The Borders of Punishment: Towards a Criminology of Mobility”. In Franko Aas, Katja

and Bosworth, Mary (Eds.): The Borders of Punishment: Migration, Citizenship and Social Exclusion.

Oxford University Press, p. 292.

57

infractions however, such as unlawful entry, overstaying or providing fraudulent

documents, have been specified as criminal offences.330

Migrants committing criminal offences have traditionally been labelled as illegal

immigrants, but the definition of „immigration offender‟ has also been used when referring

to migrants who are not only subject to removal or visa restrictions, but are to undergo

criminal prosecution and punishment prior to their deportation.331

The overlapping of

migration control and imprisonment can be seen as evidence of criminalising migration, or

so called „crimmigration‟, which connects migration, criminality and terrorism.332

Crimmigration has been criticised as being against the principles of international law and

creating a contrast to the human rights focus of refugee law.333

Crimmigration as a term has been around since 2006, but prior to the migratory crisis of

2015 there was no suspicion that criminalising migration had played a part in the

temporary reintroductions of border control in the EU. A lot has changed since then, as the

measures prior to 2015 remained limited in their duration, ensuring that the principle of

proportionality was properly safeguarded.334

Hints of crimmigration were visible during

the Arab Spring situation in 2011, but as the migratory flows remained controllable,

migrants were treated without distinction.335

In a time where temporary border controls are

continuously prolonged and Member States are looking for alternative ways to maintain

control of internal borders, sings of crimmigration are easier to find.

The power to decide how national borders are controlled and secured remains one of the

key aspects of national sovereignty in many developed countries. The growing importance

of border security has also increased the significance of migration control, which has been

moving further away from physical borders and its traditional site of enforcement. At the

330

Bowling 2013, p. 294. 331

Ibid. 332

Kaufman 2013, “Hubs and Spokes: The Transformation of the British Prison”. In Franko Aas, Katja and

Bosworth, Mary (Eds.): The Borders of Punishment: Migration, Citizenship and Social Exclusion. Oxford

University Press, p. 174. 333

See Barker 2013, ”Democracy and Deportation: Why Membership Matters Most”, p. 245 and Dauvergne

2013, ”The Troublesome Intersections of Refugee Law and Criminal Law”. In Franko Aas, Katja and

Bosworth, Mary (Eds.): The Borders of Punishment: Migration, Citizenship and Social Exclusion. Oxford

University Press, p. 77. 334


Campesi 2011, “The Arab Spring and the Crisis of the European Border Regime: Manufacturing

Emergency in the Lampedusa Crisis”, p. 17.

58

same time, migration control has also found new forms, such as ensuring the departure of

the unwanted.336

Even though the criminal prosecution of migrants has become more

common, states under heavy migratory flows are still more often interested in getting rid of

unwanted individuals, rather than making them responsible for their wrongdoings.337

Policing borders and controlling migration in the modern world requires activities on both

sides of the physical border.338

The uniform Schengen visa system is an example of how

migration can be controlled in the representative offices of Member States before any

actual borders are crossed. The privatisation of migration control, beyond physical borders,

can be seen at international airports, where passengers‟ identities can be checked multiple

times before they enter the Schengen area.339

When talking about migration control that happens inside the physical borders, Article 21

SBC plays an important role at EU level. The exercise of police powers in border areas,

with the purpose of migration control, as enabled since case Adil, strengthen the

assumption that migration control is not only present at physical borders, but at every step

of the journey that immigrants have to take in order to reach their destination.340

Controls

such as the intensified MSM in the Netherlands take this assumption even one step further,

as migration control does not stop when migrants reach their final destination, but continue

even after the physical borders have been crossed.

A similar development of inland migration control outside the EU can be seen in Australia,

where the growing pressure in securing borders has drawn many governmental and non-

governmental organisations into the field of policing migrants.341

The ideology behind

Australian immigration policies has been that, as a sovereign country, Australia has the

right to decide who can enter and stay in its territory; therefore Australian immigration

policies have traditionally been rather strict.342

336

Weber 2013, ”Policing Non-Citizens”, p. 1. 337

Franko Aas 2013, p. 24. 338

Pickering - Weber 2013, ”Policing Transversal Borders”. In Franko Aas, Katja and Bosworth, Mary

(Eds.): The Borders of Punishment: Migration, Citizenship and Social Exclusion. Oxford University Press, p.

93. 339

Gammeltoft-Hansen 2011, p. 37. 340

Ibid. p. 16. 341

Pickering - Weber 2013, p. 95. 342

Weber 2013, p. 62.

59

Australian police officers have the authority to check the identity of any person suspected

of being non-citizen at all times and they are required to detain migrants if there is a

suspicion of unlawful stay.343

Australian police and immigration authorities work closely

together and their duties have become more and more overlapping, even to a point where

immigration authorities have become more police-like. Straightforward immigration

policies, combined with the fact that Australia is an island, have made Australia one of the

most advanced policy regimes revolving around control.344

The influence of Australian immigration policies can also be noticed at EU level, as they

have been used as an example in Spain, where the arrival of illegal immigrants from

Morocco has been causing concerns for some time.345

Controlling borders in Europe,

however, is not as simple as in Australia. Long land borders with the east and a relatively

short distance between the southern Member States and Africa create unique challenges for

European border control. In the southern Member States such as Spain, the main goal for

migration control for a long time has been to prevent irregular migration, not to guarantee

protection of the refugees who want to apply for asylum.346

In migration control, determining the risk level of a nationality correlates directly with the

deviance of their home country.347

Separation between wanted and unwanted migrants is

easier to do when migrants are categorized into groups based on their nationality and threat

level. This kind of profiling is carried out by the Frontex risk analysis unit, which provides

yearly „top ten‟ lists of nationalities that have the highest risk of illegal entry, illegal stay or

provide most fraudulent documents, among other categories.348

This can sound surprising

because non-discrimination on grounds of nationality has been one of the cornerstones of

the EU when it comes to things such as applying for citizenship.349

When nationalities, countries or ethnicities are started to be categorized into risk groups

based on their assumed threat level, a new kind of risk profiling industry is created. This

includes targeting most resources on the most threatening groups and using information

343

Weber 2013, p. 62. 344

Johnson 2014, p. 67. 345

Ibid. p. 38. 346

Ibid. p. 87. 347

Franko Aas 2013, p. 30. 348

Frontex 2016, pp. 63-72. 349

Thym 2016 “„Citizens‟ and „Foreigners‟ in EU Law. Migration Law and its Cosmopolitan Outlook”, p.

314.

60

based strategies to assess and anticipate different forms of danger, contributing to the

further development of biometrics and other surveillance technologies.350

In a world where criminalising migration is becoming more common and controlling

migration requires dividing migrants into groups of wanted and unwanted, the significance

of maintaining control of the external borders becomes more notable. In a situation where

the security of the external border is breached, the position of the principle of free

movement inside the Schengen area becomes unclear. If Member States are left with no

alternative measures to protect their national sovereignty and to maintain control over

those who are allowed to enter their territory, then the fear of illegal immigration and

terrorism might lower the threshold for making exceptions to the abolition of internal

border control.

At the same time, assessing the necessity and proportionality of these measures becomes

more difficult. If the three part proportionality test introduced in Fedesa is used as an

example, verifying suitability of internal controls is difficult, as regaining full control of

the external border might be considered more appropriate for reaching the end objective

that is restraining the flow of migrants. Secondly, necessity of the controls is hard to

demonstrate, as the majority of Schengen States took no action to limit the arrival of

migrants in 2015 and 2016. Thirdly, assessing proportionality stricto sensu is challenging,

because known disadvantages of internal controls to the affected parties cannot be

compared with their advantages to the general population, if the negative effects that could

happen, if these measures were not applied, remain unknown.

Despite the current development of migration control, in emergency situations where

structural limits are pushed aside, the legal limits should stay.351

If more Member States

begin looking for alternative ways in the SBC to maintain control over their internal

borders, and the application of Article 21 SBC becomes more common and starts to find

new forms, it is growingly important that the Member States‟ ways of managing

crimmigration remain under strict supervision in order to prevent overreaction and the

exploitation of the Schengen rules.352

350

Weber 2013, p. 6. 351

Menéndez 2016, p. 397. 352

Van der Woude - Van Berlo 2015, p. 77.

61

5 CONCLUSION

The principle of proportionality is connected to both exceptions to the abolition of internal

border control in the EU. The requirement to respect the principle of proportionality does

not only affect the temporary reintroduction of border control, as described in Articles 23–

26 SBC, but it can also have an impact on the application of checks within the territory, as

described in Article 21 SBC, in a situation where the generally limited frequency and

intensity of the exercise of police powers by the competent authorities of a Member State

are intensified in accordance with national legislation, such as the MSM checks in the

Netherlands during the migratory crisis of 2015.

The requirement to respect the principle of proportionality applies to all three situations

where temporary border controls may be reintroduced. In foreseeable events (Article 23

SBC) and unforeseeable circumstances (Article 25 SBC), the requirement to assess the

proportionality of the measure belongs to the relevant Member State, while in exceptional

circumstances (Article 26 SBC), this responsibility shifts to the Council. However, when

border controls are reintroduced in accordance with the specific procedure for cases

requiring immediate action, the application of Article 25 SBC postpones the requirement to

fully assess the proportionality of the measure until such controls are prolonged.

The migratory crisis of 2015 and the secondary movements of unregistered TCNs inside

the Schengen area created an unforeseen challenge for the modern Schengen system. The

reintroduction of temporary border control, in accordance with Article 25 SBC, was

considered necessary in eight Member States to restrain the uncontrolled flow of migrants.

Critics have pointed out that defensive border control policies are a poor answer to the

fundamental challenges of contemporary governance, as they are often ineffective and

inhumane, yet physical borders preserve their status as a significant site for risk-based

governance.353

The Commission has handled the initial reintroductions of border control and their

prolongations gently. In its opinion on the necessity and proportionality of the controls at

internal borders reintroduced by Germany and Austria, the Commission approved the

353

Weber 2013, p. 1.

62

reintroduction of border control and limitations to the freedom of movement based on the

threat caused by the unexceptionally large migratory flows, even though the EU legislator

stated in 2013 that large migratory flows should not be considered as a serious threat to

public policy or internal security.354

The temporary border controls in Germany and Austria were considered proportionate by

the Commission in view of simplifying the procedure of receiving and registering

migrants. Because these controls were limited to specific border sections, they were not

considered to significantly hinder free movement.355

The case law of the CJEU has proven

that the proportionality of a measure can be evaluated in different ways and that there is no

uniform way for measuring proportionality. In its assessment, the Commission did not

refer to the traditional ways of measuring proportionality or define how the proportionality

of the German and Austrian measures was evaluated, diluting the value of these

assessments and leaving them bland.

The requirement to respect the principle of proportionality is strongly visible in the SBC

concerning temporary reintroduction of border control, but this is not the case with checks

within the territory. This can be explained with the differences between these two

measures, as the purpose of Article 21(a) SBC is not to replace missing border controls,

but to allow police authorities to continue exercising their powers in border areas, as long

as these controls may not be considered as equivalent to border checks.356

Another major

difference between these measures is that checks within the territory can be applied

continuously, without the need to inform other Member States or EU institutions or being

required to assess the proportionality of the measure.

The territorial scope, intensity and frequency of checks within the territory have been

limited by the ECJ judgments of Melki and Abdeli and Adil. Member States are also

required to describe their application of Article 21(a) SBC in their national legislation to

ensure the non-equivalent effect to border checks. Yet Member States enjoy notable

discretion when it comes to deciding how Article 21 SBC can be applied nationally.

Controls, such as the intensified MSM in the Netherlands in 2015, have shown that when

354

The SBC amendment, recital 5. 355



63

the application of Article 21(a) SBC is pushed to its limits, problems can arise concerning

the legality of these measures.

In a situation where the national legislation of a Member State allows intensifying the

intensity and frequency of checks within the territory, with a purpose of migration control,

based on a serious threat to public policy or internal security, it leaves an impression that

these controls are justified and carried out to reach similar goals with the temporary

reintroduction of border control. By doing so, controls such as the intensified MSM in the

Netherlands risk being on the edge where the application of Article 21(a) SBC becomes an

alternate form of border control.

If the difference between temporary border control and checks within the territory becomes

more indistinct, a question arises whether the application of Article 21 SBC should be

legislated more strictly, or whether the requirement to assess proportionality should be

included. These questions have been under debate in the Dutch lower courts, where the

legality of the intensified MSM has proved to be problematic, despite the fact that the

national legislation in the Netherlands concerning the application of Article 21 SBC is one

of the most advanced among the Member States and has been reviewed by the ECJ in the

case of Adil.357

On a global scale, border control, migration control and methods of domestic law

enforcement are becoming more and more similar. Checking travel documents, refusing

entry and detaining persons for further questioning have traditionally been associated with

the work of border guards, stationed along the physical borders. With the help of

developing technology, criminal investigation and growing detention capabilities, the

jurisdiction of border control agencies is expanding outside the physical borders. At the

same time, police authorities are becoming more involved in inland migration control and

more similarities can be seen between traditional police work and the police-like activities

of border control agencies.358

357

Guild, Brouwer, Groenendijk and Carrera, p.17 358

Bowling 2013, pp. 296-297.

64

Border control remains the heart of the regulatory effort in order to retain national

sovereignty.359

If securing the external Schengen border results in a failure, it is likely that

the Schengen States will be looking for means provided by the SBC to maintain control

over their national borders. The reintroduction of border control in the eight Member States

during the migratory crisis has shown that when the situation is serious enough, the rules of

the SBC regarding what should be considered as a serious threat to public policy or

internal security can be flexible. Even though the principle of proportionality restricts the

application of Articles 23–26 SBC, it is not clearly defined how proportionality should be

assessed or measured, leaving the proportionality principle in danger of being overlooked

and overshadowed by other interests, such as protecting the integrity of internal borders.

Even in times of mass migration, crossing borders and seeking asylum should not be

considered as criminal offences. However, the political and public support for asylum is

decreasing, as its loopholes continue to be exploited.360

Tightening the control of internal

borders in fear of illegal immigration has proven to be ineffective, and objectives pursued

with it are often left unaccomplished.361

At the same time, crimmigration corrodes the

principles of international law and often results in human tragedies. Still, criminalizing the

illegal entry of migrants appears to be a growing concern at both external and internal

Schengen borders, endangering the possibility of legitimate asylum seekers to have their

claims heard.

The straightforward idea of dividing the Schengen borders into external borders, where

border checks are enforced, and internal borders, where they are not, has not proved to be a

success without hardship. The Schengen system is based more on the principle of mutual

recognition, rather than pure harmonisation, enabling differences between Member States

for instance when determining what should be considered as a serious risk to public policy

or internal security.362

This lack of uniformity among the Member States has prevented the

creation of a homogenous territory where similar rules could be enforced without the need

for multiple exceptions.363

359

Sassen 1996, ” Losing Control?: Sovereignty in an Age of Globalization”, p. 3. 360

Price 2009, p. 234 361

See Barker 2013, p. 245 and Van der Woude - Van Berlo 2015, p. 63. 362

See Barnard 2013, p. 556 and Zaiotti 2011, p. 229. 363

Bigo 2008, ”EU Police Cooperation: National Sovereignty Framed by European Security?”. In Guild,

Elspeth and Geyer, Florian (Eds.): Security versus Justice? Ashgate Publishing Company, p. 99.

65

The rules of the Schengen Agreement and how they are implemented in the SBC are

highly detailed, especially when it comes to the temporary reintroduction of border control.

On the other hand, there is very little case law concerning limiting the free movement of

persons, if compared to the existing case law on border control of goods, which are based

on more general and not as detailed provisions of the TFEU.364

The interpretation of

Article 21(a) SBC has been clarified by the CJEU, but despite these two landmark cases,

Member States have still failed to find common answers to fundamental questions, such as

what should be considered as „border area‟.

Despite the gentle treatment Germany and Austria received from the Commission, the

reintroduction of border control in the eight Member States and the intensified MSM

control in the Netherlands during the migratory crisis of 2015 have received a lot of

criticism. The disapproval of the EU legislator towards the Member States‟ actions that

limited the freedom of movement during the Arab Spring situation in 2011 led to amending

the SBC in a way that restricted the Member States‟ opportunities to reintroduce temporary

border controls. One of these changes was highlighting the significance of the requirement

to assess the necessity and proportionality when applying Articles 23–26 SBC.365

Depending on the outcomes of the current migratory crisis, it is possible that the EU

legislator will be looking again at the possibilities to restrict the application of Articles 23–

26 SBC in the Member States. If the role of the Member States in the temporary

reintroduction of internal border control is further diminished, then more Member States

might be tempted to search for alternative ways for monitoring their internal borders

provided by the SBC, increasing the popularity and creative application of Article 21

SBC.366

Unmanageable migratory flows at external borders and secondary movements inside the

Schengen area have revealed serious weaknesses in the modern Schengen system, leading

borderless Europe and the principle of free movement into a spin. It is unlikely that the

culture of European border control is undergoing such a major change that the era of open

364


Peers 2013, p. 44. 366

Van der Woude - Van Berlo 2015, p. 79.

66

borders is coming to its end, but if the EU wants to maintain the credibility of a borderless

Europe, some changes might be necessary.

The role of the proportionality principle in the exceptions to the abolition of internal border

control appears to be fickle, despite its strengthening in 2013. Temporary border controls

are introduced, prolonged and accepted without elaborate assessments concerning

proportionality. At the same time, new forms of migration control, such as the MSM in the

Netherlands, are introduced, sharing the objectives with the reintroduction of border

control, while being free from the requirements to assess proportionality or to notify other

Member States or EU institutions.

The European asylum system is undergoing legislative changes due to the migratory

crisis.367

In a same way, the two exceptions to the abolition of internal border control

should be given a look by the EU legislator. The temporary reintroduction of border

control needs clear rules for when it can be applied, how long it can be prolonged and how

the principle of proportionality should affect its application. Checks within the territory

require standardisation to prevent it from functioning as a loophole in the SBC, allowing

controls similar to border checks without any supervision. Having clear and uniform rules

on the two exceptions to the abolition of internal border control in the EU are necessary to

safeguard the freedom of movement inside the Schengen area, as well as to maintain

legitimate and non-discriminatory controls at internal borders when they are needed.

367

European Union 2017: ”A European Agenda on Migration: State of Play March 2017”, p. 4.

the principle of proportionality in exceptions to the...

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