Will the coronavirus pandemic deliver a coup de grâce to Schengen? by Camino Mortera-Martinez
The EU’s Schengen area will survive the pandemic. But member-states need to co-ordinate border closures and set clear criteria for imposing quarantines, or they will imperil the single market. For over six months, the world has been grappling with a pandemic that has killed almost a million people, infected many more and crippled the global economy. While most headlines rightly focus on the human and economic costs of COVID-19, the spread of the virus has created much collateral damage – including to Europe’s passport-free Schengen area. Or so the story goes. Ever since the EU’s members began closing their borders to contain transmission, some have feared Schengen’s demise. And yet, as the 2015 security and migration crises showed, although the Schengen area may be flawed, it is more resilient than it may appear. This is because Schengen was devised with the idea that man-made problems or natural catastrophes will happen and that member countries may sometimes need to close their borders. The pandemic has led to three very different, and unequally complex, problems for the EU. First, member-states have restored passport checks; second, the EU as a whole has issued a travel ban for non-EU citizens; and third, EU countries have imposed quarantines or refused entry to fellow European citizens. The first two problems relate to Europe’s border-free area of Schengen and are comparatively less serious. The third touches upon the heart of the EU’s internal market and may inflict longer-lasting damage on Europe.
At the peak of the pandemic, internal border controls were inevitable. Whereas there is mixed scientific evidence on the effect of protracted travel restrictions on curbing transmission, it would have been a tough political sell to demand that member-states keep their frontiers open while requiring their residents to stay at home. Schengen’s governing law, the Schengen Borders Code (SBC), allows for such restrictions, although they have to be temporary. But member-states have been clumsy and at times inconsistent in their use of the rules. There are two legal reasons to re-introduce border controls temporarily. In non-urgent cases, when there is a threat to a country’s public policy or security, the SBC allows for the re-introduction of checks for up to 30 days, renewable for up to a maximum of six months. This is the clause memberstates use when they put controls in place because they are, for example, hosting a major sporting event, like the World Cup. The only other legal justification for member-states to introduce border checks is when a serious threat to their public policy or internal security requires immediate action. In this case, controls may only last ten days, although they can be renewed for up to two months. A pandemic falls rather neatly within this category, despite the fact that the SBC does not list public health as a reason to close borders.