• Augustine Sokimi

THE FREE MOVEMENT CORNERSTONE: THE FUNCTIONING AND CHALLENGES OF EU CITIZENSHIP & THE SCHENGEN AREA

Updated: Feb 8

[Written in the framework of the Master of Advanced Studies in European and International Governance (MEIG Programme) of the University of Geneva]


INTRODUCTION

The free movement of persons has been described as a cornerstone of European Union (EU) citizenship.[1] The Schengen area has sought to further facilitate EU citizens’ free movement through the phasing out of internal borders within 26 European countries, 22 of which are EU member states.[2] Of the 5 EU member states that are not part of the Schengen area, 4 are due to join and only Ireland retains its ‘opt-out.[3]

EU citizenship and the Schengen area are fundamental aspects of the free movement of persons within the EU, contributing in distinct but related ways. While EU citizenship provides recognised rights, including the right to free movement within the EU, the Schengen area is concerned with the elimination of border controls among its member states. How these mechanisms operate in tandem is what determines the “freeness” of the free movement of persons. As more EU member states join the Schengen area, free movement of persons within the EU may be considered “more free” without the hassle of having to comply with border control requirements.

It is, therefore, the aim of this article to consider the functioning of EU citizenship and the Schengen area in specific regard to the EU free movement of persons. In considering their respective functions, this article will further explore the challenges that they face, particularly in the management of third country nationals, terrorism, Brexit, and the current COVID-19 pandemic. The article concludes that the Schengen area challenges are not existential and that EU citizenship will survive, although time will tell whether this citizenship will remain in its current form or evolve in scope and application.

EU CITIZENSHIP AND FREE MOVEMENT

Functioning of EU Citizenship with regard to Free Movement

The concept of free movement of persons within the EU has developed over time. Article 48 of the Treaty establishing the European Economic Community of 1957 introduced the free movement of workers, and categorized individuals as employees or service providers. The notion of EU citizenship was first introduced by the Treaty of Maastricht in 1992 to apply to all nationals of member states and was further articulated under Directive 2004/38/EC of the European Parliament and the Council of the European Union (the Council).

Directive 2004/38/EC confers on EU citizens a primary and individual right to move and reside freely within the EU territory, as a fundamental freedom of the internal market.[4] By Regulation No 492/2011, the European Parliament and the Council gave greater clarity to the freedom of movement by affirming principles of equality with the objective to abolish any discrimination based on nationality.[5]

EU citizenship was subsequently incorporated under Article 3(2) of the Treaty of the European Union (TEU) which offers EU citizens an area of free movement, security, and justice without internal frontiers. Article 9 of the TEU further provides for the equality of EU citizens, with every national of a member state recognized as an EU citizen in addition to their national citizenship. Article 21 of the Treaty on the Functioning of the European Union (TFEU) and Article 45 of the EU Charter of Fundamental Rights recognises free movement as a “right” of EU citizens. The particulars of that right are further defined comprehensively under Title IV of the TFEU, which consolidates much of what had been developed under Directive 2004/38/EC and Regulation No 492/2011 flowing from the Maastricht Treaty of 1992. The TFEU recognises that the right of free movement may be subject to limitations justified on grounds of public policy, public security, and public health.[6]

Challenges of EU Citizenship with regard to Free Movement

According to Jo Shaw, the challenges facing EU citizenship includes illiberal, populist and anti-constitutionalist regimes in Hungary and Poland, the lingering impacts of the financial crisis, including austerity and challenges to the health of the Eurozone, and the continued aftermath of the so-called migration/refugee crisis.[7] Shaw considers these as falling under the broader consideration of the possibility of disintegration and de-Europeanisation as central to the need to reinterpret EU citizenship.[8] He argues that EU citizenship must be redefined to better balance supranational citizenship and national citizenship to change the perception that the EU is undermining national sovereignty.[9] As an example, Shaw refers to the case law of the Court of Justice of the EU (CJEU) on issues such as the rights of third country national family members of mobile EU citizens which have proven challenging for national authorities to accept and implement.[10] Shaw’s arguments flow from his consideration of Brexit and the heightened threat to EU solidarity posed by the UK’s withdrawal from the EU.[11]

Sandra Seubert observes that the politicisation of free movement has become a challenge for EU citizenship.[12] The challenge highlighted by Subert is that EU citizenship facilitates free movement of EU citizens that are workers or economically independent and receives criticism for being nothing more than a ‘market citizenship’.[13] Seubert argues that, as a result, EU citizenship is ‘helplessly caught up in the tension between political and economic logic’ whereby the ‘citizenship logic with its principle of (political and social) equality is to a large extent in the EU still restrained by an economic logic’.[14]

With regard to third country nationals, Sara Iglesias Sanchez observes that the exclusionary potential of EU citizenship status raises fears and criticisms, mostly rooted in its potential to deepen the differences in treatment between EU citizens and non-EU migrants.[15] She argues for an elaboration of the justifications allowed for differentiation between EU citizens and non-EU migrants to ensure that the EU takes a coherent approach in the field of fundamental rights.[16]

Nathan Cambien, Dimitry Kochenov and Elise Muir argue that EU citizenship is facing a constitutional challenge as its fundamental rights are in question in the shade of the ‘constitutional bargain’ among member states, with the fundamental rights of EU citizens considered by many to be ‘in decline’.[17] In this regard, they observe that the concept of EU citizenship, as a cornerstone of the integration process, has been ‘questioned, tested and even vilified’.[18] On the right to free movement specifically, traditionally seen as the most important right attached to EU citizenship, they suggest that those who do not or cannot rely on free movement rights are being left behind.[19] They argue that the different treatment between “moving” and “static” EU citizens leads to the fundamental question regarding the precise categories of EU citizens that are entitled to benefit from this right and the justifications for denying these benefits to other EU citizens (‘reverse discrimination’).[20]

The challenges identified by these various authors are tied to the very foundations of EU citizenship, as it is an unconventional notion of citizenship primarily grounded in the facilitation of EU mobility through the free movement of persons. These challenges have been inflamed in the current political climate for the following reasons: 1) Brexit has fuelled Euroscepticism and the criticism against EU citizenship violating national sovereignty; 2) Brexit also poses challenges in the loss of EU citizenship by millions of UK nationals, many of which will remain in EU territories after Brexit and further consideration of what happens to EU citizens that continue to reside and work in the UK: 3) border closures and mandatory self-isolation/quarantine periods due to the COVID-19 pandemic have undermined free movement; 4) increases in migrants, particularly refugees and asylum seekers, has required regulation of their migration without undermining EU mobility; 5) emerging nationalist politics among EU member states, including Poland, Hungary, Slovenia and Greece, have fuelled sentiments of racism and xenophobia; and 6) recent terrorist attacks in Austria and France have contributed to growing security concerns.

THE SCHENGEN AREA AND FREE MOVEMENT

Functioning of the Schengen Area with regard to Free Movement

Under the Amsterdam Treaty, the Schengen Agreements of 1985 and 1990 were incorporated under EU law.[21]Accordingly, Protocol No.19 of the TFEU integrates the Schengen acquis into the EU framework rendering the Schengen subject to EU law, under the scrutiny of the EU Parliament and the CJEU. Article 7 of Protocol No. 19 further provides that the Schengen acquis must be accepted in full by all new EU member states.

The Schengen area’s achievements include: 1) the abolition of internal border controls for all persons; 2) measures to strengthen and harmonise external border controls: all EU citizens need only show an identity card or passport to enter the Schengen area; 3) a common visa policy for short stays: 4) nationals of third countries included in the common list of non-member countries whose nationals need an entry visa may obtain a single visa, valid for the entire Schengen area (see Annex II to Council Regulation (EC) No 539/2001); 5) police and judicial cooperation: police forces assist each other in detecting and preventing crime and have the right to pursue fugitive criminals into the territory of a neighbouring Schengen state; there is also a faster extradition system and mutual recognition of criminal judgments; and 6) the establishment and development of the Schengen Information System.[22]

Therefore, in the context of free movement, the Schengen area advances the aspiration under Title V of the TFEU towards constituting the EU as an “area of freedom, security, and justice”. It seeks to facilitate EU citizens’ right to free movement by abolishing internal border controls, while maintaining transboundary security through cross-border law enforcement cooperation and managing external borders through a single migration policy and border control system.

Challenges of the Schengen Area with regard to Free Movement

The Schengen area is widely regarded as among EU’s primary achievements; however, it has recently been placed under considerable strain by the unprecedented influx of refugees and migrants into the EU.[23] This has led several EU member states to temporarily reintroduce checks at their internal Schengen borders since September 2015, which was the first time in Schengen history that temporary border checks have been instituted on such a scale.[24]

Terrorism also poses challenges for the Schengen area. The abolition of border controls renders it difficult to detect terrorists travelling through the Schengen area.[25] As recently as 13 November 2020, in the shadow of the terrorist attacks in France and Austria, the EU home affairs ministers issued a joint statement highlighting terrorism as a major challenge and recognising that temporary internal border controls may be necessary in exceptional cases, provided that they are implemented in accordance with the Schengen Borders Code,[26] which allows for the reintroduction of temporary internal border controls following terrorist incidents.[27]

COVID-19 has also posed challenges for the Schengen area, particularly since public health is a recognised ground for the limitation of free movement under the TFEU. On 16 March 2020, the European Commission adopted COVID-19 Guidelines for border management measures to protect health and ensure the availability of goods and essential service: paragraph 18 of which provides for the reintroduction of temporary border controls at internal borders if justified for reasons of public policy or internal security.[28] The European Commission Communication (2020/C 169/03) further recommends a phased and coordinated approach for restoring freedom of movement and lifting internal border controls introduced due to COVID-19.[29] On 13 October 2020, the European Commission further adopted Council Recommendation (EU) 2020/1475 on a coordinated approach to the restriction of free movement in response to the COVID-19 pandemic, which inter alia deals with frequent cross-border travellers and the requirements for quarantine/self-isolation and testing.[30] With regard to the Schengen area, the EU continues to contend with the overwhelming challenge of managing the public health threat posed by the COVID-19 pandemic, while facilitating free movement within reasonable and necessary temporary internal border controls.[31]

CONCLUSION

In concluding this article, the question that grapples the mind is whether these challenges are existential or can they be overcome. With regard to the Schengen area and free movement, the challenges do not appear existential. Border controls that are implemented due to COVID-19 are temporary and will eventually be non-existent once a vaccine has been released and widely circulated. The challenge of terrorism is not new and has been managed by the Schengen area with relative success. With advancements in digital technology and the continued improvement in cross-border law enforcement, the Schengen area is likely to continue to manage the threat of terrorism. With regard to the influx in refugees and migrants in the EU, the Schengen area has managed this challenge since 2015 and these management processes will continue to improve with time.

On the other hand, when considering the challenges faced by EU citizenship in regard to free movement, the answer is significantly less certain. However, it is comforting to note that there are many authors that have also grappled with these uncertainties. Rainer Bauböck and Kalypso Nicolaïdis, for instance, provide useful insight for reflection.

In considering the challenges concerning third country nationals, Bauböck proposes reform to expand EU citizenship to automatically include long-term resident immigrants; however, he observes that this could breed further anti-EU resentment among member state electorates.[32] Such an extension of citizenship would likely alleviate some of the insecurities emerging with Brexit, particularly for UK nationals that have been long-term residents of EU member states. Considering reverse discrimination between mobile and static EU citizens, Bauböck proposes reform to abolish any remaining distinctions in order to ensure their equal enjoyment of fundamental EU citizenship rights, including the right to family reunification.[33]

Nicolaïdis describes the national and supranational tensions within the EU as a democratic crisis and argues that it stems from member state governments’ refusal to face pervading democratic externalities, citizens who fail to engage across borders, and in the EU’s partial inability to legitimately address these democratic flaws while respecting democratic boundaries.[34] She argues that as a starting point, European democracy should be redefined as ‘transnational’, rather than seen as mainly ‘national’ or ‘supranational’[35] and EU citizenship must be radically redefined to expand the rights, opportunities and obligations of all its citizens via ‘Europeanized national citizenships’.[36] Her arguments, in this regard, suggests a transition of the EU and EU citizenship towards federalism.

It is apparent that the future of EU citizenship, a 28 year old concept, remains uncertain. It is possible that the status quo will remain; however, there is great potential for further development in its scope and application to address some of the challenges that it currently faces. This will necessarily require serious consideration among EU member states and if the objective is to attain greater solidarity among EU citizens for EU citizenship, then there must be an extensive effort to garner their contributions towards determining what that citizenship should entail. How to approach a programme of such massive scale will necessarily require member state leadership and should follow a uniform and synchronized process, with an established timeline, clear guidelines, and defined processes.

History has taught us that the EU is resilient, as well as willing and able to adapt and evolve in order to improve. This has served the EU well in its development over time and will continue to serve the EU, if employed in its development towards the future.

BIBLIOGRAPHY

Primary Sources

Charter of Fundamental Rights of the European Union

Council Recommendation (EU) 2020/1475 on a coordinated approach to the restriction of free movement in response to the COVID-19 pandemic

Council Regulation (EC) No 539/2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement

Directive 2004/38/EC of the European Parliament and the Council of the European Union

EU Communication (2020/C 169/03) towards a phased and coordinated approach for restoring freedom of movement and lifting internal border controls - COVID-19

EU COVID-19 guidelines for border management measures to protect health and ensure the availability of goods and essential services

EU Member States’ notifications of the temporary reintroduction of border control at internal borders pursuant to Article 25 and 28 et seq. of the Schengen Borders Code

Regulation (EU) 2016/399 of the European Parliament and the Council of the European Union

Regulation No 492/2011, the European Parliament and the Council of the European Union

Treaty of Amsterdam Amending the Treaty on European Union, the Treaties establishing the European Communities and certain Related Acts Treaty of the European Union

Treaty of the European Union

Treaty on the Functioning of the European Union


Secondary Sources

Bauböck, R. ‘The Three Levels of Citizenship within the European Union', German Law Journal, 2014, Vol. 15, No. 5, pp. 751-764

Cambien, N., Kochenov, D., & Muir, E. (Eds.). (2020). ‘Chapter1. Euro Citizenship under Stress : Introduction’, European Citizenship under Stress. Leiden, The Netherlands, p.1: Brill | Nijhoff. doi: https://doi.org/10.1163/9789004433076

Council of the European Union, ‘Joint statement by the EU home affairs ministers on the recent terrorist attacks in Europe’ https://www.consilium.europa.eu/en/press/press-releases/2020/11/13/joint-statement-by-the-eu-home-affairs-ministers-on-the-recent-terrorist-attacks-in-europe/#

European Parliament, ‘Free movement of persons’ https://www.europarl.europa.eu/factsheets/en/sheet/147/free-movement-of-persons#:~:text=The%20Treaty%20of%20Maastricht%20introduced,territory%20of%20the%20Member%20States

Nicolaïdis, K. ‘European Demoicracy and Its Crisis’, JCMS 2013 Volume 51. Number 2. pp. 351–369

Sara Iglesias Sánchez, ‘Fundamental Rights Protection for Third Country Nationals and Citizens of the Union: Principles for Enhancing Coherence’, European Journal of Migration and Law, January 2013, pp.137-153.

Shaw J. (2019) EU citizenship: Still a Fundamental Status?. In: Bauböck R. (eds) Debating European Citizenship. IMISCOE Research Series. Springer, Cham. https://doi.org/10.1007/978-3-319-89905-3_1 (Accessed: 23/11/20)

Subert, S., ‘Shifting Boundaries of Membership: The politicisation of free movement as a challenge for EU citizenship’, European Law Journal, 15 December 2019, https://doi.org/10.1111/eulj.12346

[1] European Parliament, ‘Free movement of persons’ https://www.europarl.europa.eu/factsheets/en/sheet/147/free-movement-of-persons#:~:text=The%20Treaty%20of%20Maastricht%20introduced,territory%20of%20the%20Member%20States (Accessed: 23/11/29) [2] Ibid. [3] Ibid. [4] Preamble, Directive 2004/38/EC. [5] Preamble, Regulation No 492/2011. [6] See Articles 45(3) and 202, TFEU. [7] Shaw J. (2019) EU citizenship: Still a Fundamental Status?. In: Bauböck R. (eds) Debating European Citizenship. IMISCOE Research Series. Springer, Cham. https://doi.org/10.1007/978-3-319-89905-3_1 (Accessed: 23/11/20) [8] Ibid. [9] Ibid. [10] Ibid. [11] Ibid. [12] Subert, S., ‘Shifting Boundaries of Membership: The politicisation of free movement as a challenge for EU citizenship’, European Law Journal, 15 December 2019, https://doi.org/10.1111/eulj.12346 (Accessed : 23/11/20) [13] Ibid. [14] Ibid. [15] Sara Iglesias Sánchez, ‘Fundamental Rights Protection for Third Country Nationals and Citizens of the Union: Principles for Enhancing Coherence’, European Journal of Migration and Law, January 2013, p.140. [16] Ibid, p.153. [17] Cambien, N., Kochenov, D., & Muir, E. (Eds.). (2020). ‘Chapter1. Euro Citizenship under Stress : Introduction’, European Citizenship under Stress. Leiden, The Netherlands, p.1: Brill | Nijhoff. doi: https://doi.org/10.1163/9789004433076 (Accessed 24/11/20) [18] Ibid, p.2. [19] Ibid, p.5. [20] Ibid. [21] See Treaty of Amsterdam Amending the Treaty on European Union, the Treaties establishing the European Communities and certain Related Acts, Protocol integrating the Schengen acquis into the framework of the European Union, p. 93. [22] European Parliament, ‘Free movement of persons’, supra. [23] Ibid. [24] Ibid. [25] Ibid. [26] Council of the European Union, ‘Joint statement by the EU home affairs ministers on the recent terrorist attacks in Europe’ https://www.consilium.europa.eu/en/press/press-releases/2020/11/13/joint-statement-by-the-eu-home-affairs-ministers-on-the-recent-terrorist-attacks-in-europe/# (Accessed 24/11/20) [27] Regulation (EU) 2016/399 of the European Parliament and the Council, preambular paragraph 25, https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32016R0399&from=EN (Accessed: 24/11/20) [28] Accessed 24/11/20: https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/20200316_covid-19-guidelines-for-border-management.pdf [29] Accessed 24/11/20 : https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52020XC0515(05)&from=EN [30] Accessed 24/11/20: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32020H1475&from=BG [31] Many EU member states have issued notifications of COVID-19 temporary internal border controls pursuant to Article 25 and 28 et seq. of the Schengen Borders Code, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/borders-and-visas/schengen/reintroduction-border-control/docs/ms_notifications_-_reintroduction_of_border_control_en.pdf (Accessed 24/11/20) [32] Bauböck, R. The Three Levels of Citizenship within the European Union, German Law Journal, 2014, Vol. 15, No. 5, p.759. [33] Ibid, p.760 [34] Nicolaïdis, K. ‘European Demoicracy and Its Crisis’, JCMS 2013 Volume 51. Number 2. pp. 351. [35] Ibid, p.353. [36] Ibid, p.365.

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