Strengthening the Schengen Area. The EU Commission calls for the admission of Bulgaria, Romania and Croatia.

Legal - December 12, 2022

The European Commission has formalised an invitation to the EU Council to take the necessary steps to admit Bulgaria, Romania and Croatia to full participation in the Schengen area. These three states are already bound by the rules of operation of what is considered one of the pillars of the European project, however, internal border controls are still in place with these member states.

Schengen, objectives and beneficiaries.

The Schengen Area was created in 1995 to allow free movement in Europe without border controls at the borders of the participating states. This important step in the process of European integration has meant, for millions of citizens, the achievement of the freedom to travel, work, study and retire in any state of the area.

The only exceptions were Ireland, which exercised its opt-out, the so-called right of non-participation, Bulgaria, Cyprus, Croatia and Romania, which would join Schengen at a later date. Four non-EU countries are also members: Iceland, Norway, Switzerland and Liechtenstein.

Today, more than three million European citizens cross an internal EU border every day, availing themselves of the rights guaranteed to them by the constitution of the Schengen area. No border controls and passport requirements in this common area where one can spend three months as a tourist with only a valid identity document. All EU citizens are free to work, set up their own business, study in one of the member states, without any border authorisation. Cross-border commuting has also benefited greatly from Schengen’s free movement.

Schengen and security

Although in this area people can travel from one state to another without being checked, security is safeguarded by the national authorities who, through the Schengen Information System (SIS) and the possibility of establishing controls at border crossings in the presence of potential risks, ensure constant efforts to prevent and monitor risks related to terrorism and cross-border crime. Schengen membership also provides for a shared system of short visas for non-EU citizens.

Migrant crisis and Covid-19 pandemic: a stress test for Schengen.

In 2020, as the Covid-19 pandemic spread across the globe, the pillar of borderless Europe began to shake. In the first weeks of the EU health crisis, fourteen of the 26 Schengen countries notified the European Commission of closures and many others imposed controls. There was a substantial loss of freedom of movement for European citizens, with the consequent obvious damage to various economic sectors, but it was nevertheless an eventuality that was widely foreseen in the regulations governing borders according to Schengen. In fact, the Schengen Treaty, transposed in 1997 as a Regulation to the European Union’s secondary legislation, provides for exceptional security situations in which a government may temporarily suspend freedom of movement, subject to notification to the European Commission, which is the one that must assess whether the measure is proportionate and, if appropriate, submit a complaint to the European Court of Justice. Everything expected then, rule and exception. The introduction of the Covid certificate for travelling has facilitated the gradual removal of travel restrictions applied by member states.

Going back even further, around 2015, we see how the migrant crisis triggered by the movements of refugees and asylum seekers linked to the civil war in Libya, the war in Iraq and the Syrian conflict also acted as a stress test for the Schengen rules.

The ‘refugee crisis’ therefore led one member state after another to reintroduce internal border controls. Many of these controls have remained in place for a long time, even though there are clear time limits set by secondary legislation, but member states have continued to use as justification both the high pressure situation at the external borders and the so-called ‘secondary movements’ of asylum seekers who often enter the EU through one member state with external borders on their migration routes, but then aim to reach another within the continent.

However, the Eurochamber has repeatedly condemned the continuation of these measures. So in December 2021, the Commission intervened and proposed an update of the rules governing the area of free movement, with the aim of ensuring that the reintroduction of restrictions and controls on internal borders would always be considered an exception and a case of last resort.

Schengen enlargement to Bulgaria, Romania and Croatia.

Bulgaria, Romania and Croatia have been contributors to the Schengen area for years, participating in its functioning while not being full members.

One example is the fact that border controls between the other Schengen states and these countries were never lifted because they did not fulfil all the conditions to fully enjoy the benefits of the area of free movement.

The Commission analysed the ‘homework’ carried out by these three states and determined that the time was ripe.

According to the EU executive, in fact, Bulgaria has worked on two levels. The Balkan state has set up a solid infrastructure for border security management and the fight against organised crime, putting in place processes of international police cooperation in which Europol was also involved. At the same time, respect for fundamental rights and the principle of non-refoulement within a framework to ensure international protection were fully met.

Romania combined the same seriousness in managing its borders and establishing a security platform capable of ensuring international cooperation with the fight against illegal immigration and human trafficking. Within this framework, the Schengen Information System was well established, but so was respect for fundamental rights. Both states were eligible for Schengen as early as 2011, but the integration process was never completed due to the Council’s failure to take a final decision on the case.

Much more recent, however, is the case of Croatia.

By the end of 2021, Zagreb had received a favourable opinion from the Council for having successfully achieved all the necessary evaluation parameters to meet the conditions for joining the Schengen area.

The Republic of Croatia has an independent mechanism for monitoring and evaluating respect for human rights in border control operations, boasting a primacy among member states in implementing this system.

” The three countries, Bulgaria, Romania and Croatia, are all ready to join Schengen. Bulgaria and Romania invited the Commission to carry out a fact-finding mission on their territory, which was attended by representatives of 17 Member States, the Commission and our agencies”, said Ylva Johansson, European Commissioner for Home Affairs

“The analyses of this mission show that the countries are ready. And their level of compliance with the Schengen Area criteria has also increased” .

Now the ball passes back to the Council for a final decision. Some countries, such as Austria and the Netherlands, have expressed concerns about the entry of Bulgaria, Romania and Croatia into Schengen. The former, through its Minister of the Interior, Gerhard Karner, has raised doubts about the increase in migratory flows, especially from Croatia, which is not considered sufficiently secure in keeping its borders under control. The latter, on the other hand, pointed the finger at issues related to the management of organised crime by all three states in the process of joining the EU’s area of free movement.

It will be the Czech Presidency of the Union, on 8 December 2022, when the Justice and Home Affairs Council will vote to approve the full participation of Bulgaria, Romania and Croatia in the Schengen area without internal border controls.