Dutch law professor on Schengen: EU Council can be sued by Romania and Bulgaria for opposing their accession

Stefan Salomon, a law professor at the University of Amsterdam, told a Schengen-related hearing in the European Parliament’s petitions committee that member states were bound by the EU treaties to accept Romania and Bulgaria’s entry once the technical criteria were deemed to have been met.

”Article 4(2) of the act of accession basically indicates that this provision only refers to the Schengen evaluation as the basis for the verification by the Council if the conditions for a full application are met. The specific criteria are then determined by the Schengen evaluation body. This very Schengen evaluation body concluded already in 2011 that Bulgaria and Romania made sufficient progress in the fields of data protection, police cooperation, visa issues, land, sea, and the EU borders, and the Schengen implementing system. So, neither the accession act nor the relevant secondary legislation on the Schengen evaluation include any additional criteria, which suggests that the legal criteria for full application are fixed rather than adaptable”, he said during the debate, according to the transcript.

The Dutch expert also said that the resolution of a situation such as Austria’s veto can come before the European courts, pointing out that member states concerned by the veto can go to the European Court of Justice.

”I could only point you to the legal options and which kind of legal options do exist. So if the council does not adopt this decision due to some member states blocking the anonymous Council decision, there is always the possibility for a member state or for another privileged applicant such as the European Parliament Audit Commission to bring an action for failure to act in article 265 of the TFEU against the council. ”, said Stefan Salomon.

He also pointed out that there is a possibility that citizens who feel directly affected can seek compensation in court: an EU citizen who has suffered a loss because of waiting time at the internal border, because of border controls, can always go to the National Court and seek compensation for the losses they have suffered.

The debate took place after the European Parliament adopted a new resolution in July asking the EU Council to vote on the accession of Romania and Bulgaria to Schengen. The accession of the two countries was blocked in December 2022 by an Austrian veto. European Parliament resolutions have no legal force and are not binding on EU member states or the other European institutions. However, they are an instrument of political pressure. Austria announced this week that it maintains its veto on the accession of Romania and Bulgaria on the grounds that the two countries are not handling illegal immigration properly.

Read Stefan Salomon’s full speech below:

”So, I’ve been as you mentioned, I’ve been basically asked to address three points. First, the current state of the reintroduction of border controls, so the current state of Schengen. Second, what are the economic costs of maintaining these controls. Third, the full application of the Schengen acquis to Bulgaria and Romania focusing again on internal border controls. I guess these three points would be enough to fill an entire afternoon, but I will try to do this in the next 10 minutes. And just to be clear, I will talk about these points as a legal expert. So, from a legal perspective, as to the first point, the current state of Schengen. So the legal if we talk about changing the legal and normative core of Schengen is the very area without internal border controls, and it is exactly this core that has been undermined and still is undermined since 2015, when the first member states, reintroduced controls, and that still maintain controls due to back then the terrorist attacks in France and the increase of (asylum seekers in a couple) the number of asylum seekers in a couple of member states. Three points and let me illustrate this undermining of the legal normative caution with three points. First, the number of controls rose considerably. (In 20) In the first 20 years of Schengen from 1995 to 2014. Member states, reintroduced controls a total of 90 times. Since 2015, this number rose to 369 times This is an increase of more than 600%. Second, the duration of these controls is also longer. Before 2015 controls were reintroduced for a few hours to a maximum of four weeks. Since 2015, most member states reintroduced controls for six months at a time and then continuously prolonged these controls. The third point that illustrates this crisis of Schengen is that the nature of the reasons that member states provide for reintroducing controls changed. The Schengen borders code requires the existence and I quote <<a channelling of a genuine present and sufficiently serious threat that affects one of the fundamental interests of society>> end of quote. Prior to 2015, member states reintroduced controls because of concrete threats. These threats included sport events, political summits, or the meeting of the Icelandic chapter of the Hells Angels Motorcycle Club. In 20 years, migration, so from 1995 to 2014, migration was only used four times as reason for reintroducing controls. Terrorist threats were used only 10 times. This changed fundamentally since 2015. A common feature of the controls, or rather often notifications that member states send to the commission is that they all emphasise risks, that is potential risks rather than concrete threats. The upshot of these developments since 2015 is that border controls are turned from exceptional measures that are used only on a temporary basis into instruments of risk governance that are employed on a quasi-permanent basis. In principle, the Court of Justice put an end to this practice. In April of last year, the Court held in the in its decision in Landespolizeidirektion Steiermark that unless there is a new threat to internal security, that is different in nature from the previous threat, member states are only permitted to unilaterally reinstate controls for a maximum of six months. Although this judgement by the court is binding on all member states, they do not implement it. Traditional checks in the member state by member states’ courts are also failing. In France, they conceded that upheld that the prolongation of controls by the French government would be in accordance with EU law. They conceded that, thereby adopted an interpretation that is flatly contrary to the judgement of the Court of Justice. This brings me to my second point. So, what if member states maintain these controls since 2015? Well, it’s five member states which maintain these controls since 2015. In what are the economic costs of these prolonged reintroductions? Well, if we look at the existing (studies on) economic studies on the costs of the of these controls, (there are) there are a couple of studies out there. So, the scientific service German Bundestag, for instance, enumerates along with four studies that exist in Germany, there are two studies that have been commissioned by the European Parliament and at least one study by a French government, institution France Stratégie. All of these studies differ (both) both in breadth and in depth. However, what they do have in common is (that) that they all basically come to the conclusion that controls at the internal borders result in significant direct and indirect costs. I’m pretty sure that many of you will be familiar with at least some of these studies, so I don’t want to rehearse all of the findings in these studies. But I just want to highlight some or give you some concrete examples of the indirect costs on free movement of goods and services. The, to my knowledge, most exhaustive study by the ifo Institute at University of Munich, estimates that controls at the German-Austrian border alone would result in a reduction of the import of goods and services by 0.5 percentage points a year. In Germany, that is equivalent to the sum of 6.3 billion euros a year. To give you another example, at the Austrian border, there are, on a daily basis, more than 51,000 EU citizens who commute from Hungary into Austria, and more than 14,300 EU citizens who commute from Slovenia into Austria. Those are the most recent data that I found from Statistics Austria. Based on an estimated 10 minutes waiting time for one crossing at the border, the indirect costs for these Union citizens would amount to more than 47 million euros a year. I assume that similar studies exist for commuters in Denmark and Sweden. Let me come to the direct costs now of border controls. In Austria, direct costs for border controls amounted to 88 million euros in 2021. And these are mostly costs that are related to personnel costs. One remarkable thing about the direct costs is that, to my knowledge, in none of the member states, data on direct costs for the prolongation of these controls are publicly available. This of course raises transparency issues. From a legal perspective, the point about these economic costs is that each time member states reintroduced controls and sent notifications to the Commission, these costs would need to be part of the proportionality assessment. So as to measure or at least to weigh the impacts and the effects of these controls on the free movement rights of citizens and companies in the EU. Virtually none of the notifications that were sent to the Commission since 2015, basically included such costs. This brings me to my final point: the full application of the Schengen acquis to Romania and Bulgaria. Bulgaria and Romania are already fully bound by the Schengen acquis, only parts of the Schengen acquis do not yet fully apply to Bulgaria and Romania, especially the part on the abolition of internal border controls. The full application of this part of the Schengen a key is basically a two-step procedure. First, an evaluation must be carried out that the necessary conditions for the application of all parts of the Schengen acquis are met. Second, a unanimous decision by the Council must be adopted with the consultation of the European Parliament. The Schengen evaluation report, so that’s the first step, stated already in 2011 that Romania and Bulgaria are sufficiently prepared to fully apply the rules of the Schengen acquis. The Council decision, however, was not adopted in 2022, due to the veto of Austria and the Netherlands. And it is interesting to look at the reasons that the Dutch and the Austrian government give so the Dutch government argues that Bulgaria must, and I quote, <<Bulgaria must implement all the necessary measures: rule of law, fighting corruption, independent judiciary>> end of quote. In a similar way, the Austrian Chancellor cited the dysfunctionality of the Schengen area as a reason for not extending the Schengen acquis. This basically from a legal perspective, this basically raises the question: so, what are the legal criteria for full application of the Schengen acquis to these countries? Are they fixed criteria or are they rather adaptable, as the Austrian and Dutch Government suggest? Well, look at Article Two. Sorry, look at Article 4(2) of the act of accession basically indicates that this provision only refers to the Schengen evaluation as the basis for the verification by the Council if the conditions for a full application are met. The specific criteria are then determined by the Schengen evaluation body. This very Schengen evaluation body concluded already in 2011 that Bulgaria and Romania made sufficient progress in the fields of data protection, police cooperation, visa issues, land, sea, and the EU borders, and the Schengen implementing system. So, neither the accession act nor the relevant secondary legislation on the Schengen evaluation include any additional criteria, which suggests that the legal criteria for full application are fixed rather than adaptable. The question then is what are the legal implications that follow from that? Does the council in particular have an obligation to adopt a decision if the criteria are met? Or is the decision of the Council a purely political one? For the sake of brevity, I would say (that the criteria are) that the criteria are first legally binding, and that they’re also justiciable by the Court of Justice, for a variety of reasons. The wording of Article of Article 4(2) of the accession Act, the structure of rights and obligations in the Schengen acquis and institutional considerations among others. I would gladly explain that if need be further in the Q&A.

Let me start with the comment that was given by the truck drivers. When the Saarbrücken Agreement, which was the predecessor to the Schengen agreement was concluded in 1985, it was actually the impetus for the conclusion of this agreement was actually truck drivers, German truck drivers, Austrian truck drivers and other truck drivers in Italy, which basically blocked the roads and therefore demanded political action to finally abolish the border controls which have been promised in prior EU documents. So I found this a very, very telling anecdote and back then, the political leadership in Germany, actually supported in Bavaria actually supported the political acts of the truck drivers by providing them with food and beer. What was otherwise an illegal action. So let me answer the questions in the order. I basically summed them up a bit. So the first point was, so the first question basically concerns the veto of Netherlands and Austria and what’s the purpose of this veto? Well, the purpose of this veto is that the council verifies that the technical standards which have been adopted by the Schengen evaluation body are actually fulfilled, so it’s really a verification mechanism. So, the council decision would then be the legal basis for the full application of the Schengen acquis. What if two or more member states block it, although the Schengen evaluation has been fulfilled, and this is not in the criterion, the Schengen evaluation has been fulfilled. And this is actually not contested, but other criteria are cited. While the solutions to this either I can only the political solutions, I don’t know. I could only point you to the legal options and which kind of legal options do exist. So if the council does not adopt this decision due to some member states blocking the anonymous Council decision, there is always the possibility for a member state or for another privileged applicant such as the European Parliament Audit Commission to bring an action for failure to act in article 265 of the TFEU against the council. The second point basically concerns the compensation for losses. Well, I guess we need to distinguish their recompensation for losses suffered by Romania, Bulgaria. And the compensat-; and losses suffered by citizens because of border controls, which are currently still (in place by) maintained by all states, Germany and other states. As to the second point, there is always a possibility of state liability. (And you basically) the conditions I would see fulfilled. So, a citizen, an EU citizen who has suffered a loss, because of a company, which has suffered a loss, because of waiting time at the internal border, because of border controls, can always go to National Court and claim the compensation for the losses that they suffered. I do not see this possibility in Bulgaria and Romania currently. And the third question concerning the EP, the European Parliament proposal. So, the European Parliament proposal, grosso modo, maintains the legal framework, as it is, in the sense that border controls would still have this exceptional nature. The Council and the Commission proposal sees this a bit differently, and it would basically envisage to reintroduce controls more with longer term measures to counter longer threats, which would then shift border controls for more exceptional measures into longer term measures.

I conclude by saying basically, even if the proposal is adopted, (the Commission) still needed this enforcement by the Commission, in addition to the enforcement actions that are by EU citizens. There is a concern by citizens, as the petitions clearly show however, the fact that EU citizens do not take legal actions as often, the reason for this is often (the costs of) the procedural costs that are involved with this. Thank you.”