The European Commission did not exercise proper scrutiny that internal border controls complied with the Schengen legislation according to an audit report published on Monday by the European Court of Auditors (ECA).
While recognizing the limitations of the existing legal framework, ECA underlined in the report the threat of border controls to the fundamental right of freedom of expression. The member states’ actions to fight COVID-19 remained mostly uncoordinated. In particular, the auditors identified shortcomings in the Commission’s monitoring of their notifications of the border controls.
The EU Treaty stipulates that the EU must provide its citizens with “an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured”. Border controls have been abolished in the Schengen area, which comprises 22 EU and 4 non-EU countries. Freedom of movement is valued as a particularly significant achievement of EU integration by EU citizens.
The starting assumption of ECA’s audit was therefore that EU citizens have a right to move freely within the Schengen area, even during an unprecedented crisis such as the COVID-19 pandemic. Although border controls can be imposed for public security or health reasons, they should be proportionate and only taken as a last resort.
“Considering that the free movement of people is one of the four fundamental freedoms of the EU and has been at the heart of the European project since its inception, the Commission should have checked carefully that restrictions introduced during the COVID times were all relevant and justified”, said Baudilio Tomé Muguruza, the Spanish ECA member responsible for the audit.
“We hope that our audit findings will feed into the ongoing debate on the review of the Schengen system,” he added when he presented the audit at a virtual press conference. In fact, the European Commission shared his opinion at the outbreak of the of the corona virus during the first critical weeks in February and March 2020.
Commission’s position at the outbreak
At this point of time, the Commission seemed to imply that there was no point in border controls since the virus does not stop at borders. The overriding concern of the Commission, as the crisis unfolded and Europe even became the epicentre of the pandemic, was to preserve the integrity of the Schengen area with its open borders.
The Commission repeated in the beginning that it was the competency of the member states to contain the spread of the virus and it took some time for it to realize that the evolving crisis required effective coordination on EU level. The change came on 11 March 2020 when WHO decided to classify COVID-19 a global pandemic, spreading to more than one continent.
It took unnecessarily long time for the member states to decide on travel restrictions, introduce health checks at borders, speed up testing and put infected people in quarantine. By mid-March, almost all member states, without waiting for the Commission, had introduced tough measures, including border controls, but there was no overview of them by the Commission.
Overall, the Commission admitted in an internal evaluation in June 2021 that its initial response to the pandemic was disjoint and uncoordinated but claimed that it overcame the problems along the way, especially as regards the joint procurement of vaccines on behalf of the member states.
Shortcomings in notification system
The objective of the audit was to ascertain whether the Commission had taken effective action to protect the right of free movement of persons during the COVID-19 pandemic. The audit covers the period from March 2020 to June 2021 and focuses on EU’s internal borders which were audited for the first time by ECA.
The audit team told The Brussels Times that travels from third countries were outside the scope since the management of EUs external borders had been examined in previous audits before the outbreak of the pandemic. The question whether border controls were effective and contained the spread of the virus was also outside the scope. This would be something for experts to assess.
The main data collection in the audit was based on a review of all the 150 notifications from member states of internal border controls that were submitted to the Commission between March 2020 and June 2021. The majority them related to COVID-19.
The notifications indicated the dates, duration and scope of border controls but did not provide sufficient evidence that they were necessary, according to the audit team. Nor did the Commission request missing information from the member states.
Infringement procedures not useful
The auditors give also examples of the challenges to the land border controls and how they were bypassed by travellers. Moreover, the Commission has not launched any infringement procedures in respect of the long-term border controls that were introduced by Denmark, Germany, France, Austria and Sweden during the migration crisis and against security threats before the COVID-19 pandemic.
Infringement procedures would anyway not have been a useful tool during the pandemic, ECA member Tomé commented.
In June 2020, the Commission launched a web platform to support the safe re-opening of travel and tourism across Europe (‘Re-open EU’). The platform is based on the voluntary information that EU countries provide about travel restrictions. However, one year later, Bulgaria, Denmark, Germany, Estonia, France, Romania, Slovenia, Finland and Sweden were still not providing updated information.
Scientific advice and policy-making
A crucial role in the Commission’s efforts to coordinate the response of the member states to the pandemic was scientific advice from the European Centre for Disease Prevention and Control (ECDC), set up in 2005 and located in Stockholm. In its press briefings, the Commission relied on that advice but, at least initially, there was a need to bridge the gap between science and policy-making.
During the audited period, the ECDC published 27 risk/threat assessments and more than 70 guidance and technical reports on the pandemic. Its first travel guidance dates back to May 2020. The ECDC also provided input for the Commission’s guidance on border controls and travel restrictions but it was not binding on the member states and they did not always follow it, according to the audit.
On the positive side, the report mentions that the launch of the ‘Green Lanes’ concept in March 2020 was a major achievement. The lanes ensured the continuous flow of goods across the EU and the free movement of transport personnel which were affected by the reintroduction of internal border controls, particularly in the early days of the pandemic.
Reform of Schengen
It cannot be concluded from the audit that the Schengen concept of border-free travel does not work but the report is expected to feed into the on-going reform of Schengen Borders Code. The Commission seemed to accept the audit with relative equanimity and even some pride that it had managed to enable the flow of people and goods during an extremely difficult period.
A spokesperson of the Commission told The Brussels Times that the audit recognised the Commission’s coordination efforts despite the limitations of the legal framework. “These coordination efforts were positively noted by ECA. As regards the shortcomings in the notification system, the Commission is committed to implement the accepted recommendations of the report.”
To address the shortcomings in the legal framework, the Commission has tabled an amendment to the Schengen Borders Code putting in place a harmonized procedure for handling health threats by the member states. The Council agreed last week on a general approach on this issue, according to the spokesperson.
The Brussels Times