Why France is threatening to leave Schengen

Written by Hugo Brady [1], 30 April 2012

Nicolas Sarkozy appears ready to send the EU's Schengen area to the guillotine in order to win re-election to the French presidency. Last week, Claude Guéant, France's minister for the interior, was despatched to a meeting of his EU counterparts in Luxembourg with a stark warning: Schengen's common border – which stretches from the Baltic to the Mediterranean to the Aegean – must be secure by the end of 2012. Otherwise, France will leave the 26-country passport-free zone, or so says Sarkozy on the stump.

Guéant's move seems like crude electioneering to most observers. Marine Le Pen, the anti-immigration, anti-EU leader of the National Front, won 18 per cent of the vote in the first round of France's presidential election. Sarkozy must poach a sizable chunk of these votes in order to beat socialist rival, François Hollande, in the run-off on May 6th. Furthermore, although Guéant complained to his ministerial colleagues that 400,000 people enter the Schengen area illegally each year, this figure must be seen in context: the passport-free zone benefits some 650 million legitimate travellers annually.

Yet France's ultimatum is about more than simple pandering to the far-right. French scepticism of the Schengen project goes right back to its inception in 1995, when border controls were first abolished between the original five members: the Benelux three, France and Germany. If Germany gave up its beloved deutschmark in the cause of European integration, France sacrificed sole control over its own borders and reluctantly accepted the free movement of people between EU member-states. Whereas Germany was able to ensure that the European Central Bank reflected its own economic orthodoxy, France had no such means to export its traditions of robust border security to countries guarding the new external frontier. Hence its authorities initially refused to drop border controls after 1995, citing smuggling at the Belgian border and a row with the Netherlands over its liberal drugs policy, to the general consternation of fellow Schengen members.

The Schengen area does have common rules on borders and visas that detail the standards its members must maintain in their border checks and consular procedures. But such stipulations are purely technical in nature and deliberately limited in scope. For example, Schengen countries have only recently agreed to harmonise the background information required from travellers applying for a visa in their consulates abroad. Their governments are highly unlikely to be able to agree anything like a coherent immigration or common security policy in the short-term.

Schengen members are reviewed once every five years for their compliance with the basic technical requirements by teams of border guards and police from their peers, led by the EU presidency. These inspections produce 'recommendations' for improvements to be made but there is very little to force the country in question to follow them up. Greece has completed two such peer reviews and received reams of recommendations since joining Schengen in 2000. But Frontex – the EU's border agency – still reported in early 2012 that the country will remain the largest source of illegal entry to the passport-free zone until at least 2013, with illegal entries remaining as high as 50,000 per year. See http://frontex.europa.eu/assets/Publications/Risk_Analysis/Annual_Risk_Analysis_2012.pdf [2]

Such figures are based only on the number of migrants caught trying to cross the border: the total number of detected and undetected illegal entries is higher.

The net result of all this is that France views the Schengen area very much the way Britain sees its membership of the EU. The French feel trapped inside a club in which they claim higher standards than others while having little faith that fellow members can be kept even to the minimalist rules to which they have signed up. That is why Sarkozy hoodwinked his Italian counterpart, Silvio Berlusconi, into pushing for a review of the Schengen regime in April 2011, after Tunisian migrants began to reach France over its open border with Italy following the unrest of the Arab spring.*

Currently, Schengen members can re-introduce border checks for up to 30 days if either public security or 'order' is at stake, without asking permission of other members or the European Commission. The latter condition is defined quite strictly in EU law: countries usually only invoke it to ensure the security of major events like international sporting tournaments or political summits. (Switzerland, one of Schengen's four non-EU members, invokes the clause annually to maintain security at the World Economic Forum in Davos, for example.) But, if the Greeks are going to permit 50,000 illegal entries to their – and, potentially, French – territory each year, France feels entitled to argue that Schengen's border code should include a third condition for the unilateral re-introduction of border controls: large-scale illegal immigration.

The European Commission has the job of ensuring that Europe's borders remain as open as possible to trade and the free movement of people. Cecilia Malmström, the EU Commissioner for Home Affairs, fears that France's proposed new exemption would result in a tit-for-tat retaliatory imposition of border controls across the passport-free zone. Instead, she has proposed that countries may re-instate border checks but only if the border code is also amended to give the Commission the right to approve specific incidences lasting longer than five days.

However, Guéant, backed up by Germany, Austria and others, made clear last week that Schengen governments consider the latter idea an unconscionable – and opportunistic – power grab. Never before has the Commission had the power to stop a country guarding its own borders. This doomed attempt to establish a confederal arrangement for managing Schengen exposes the contradiction facing the passport-free zone: governments want more control over their own but also over other countries' border decisions simultaneously. (French authorities are dismissive of inspections by EU-led teams evaluating their own implementation of Schengen rules but expect countries like Greece to fall into line.) At the same time, Commission officials must beware of over-reaching: a world of difference exists between winning formal legal powers over a sensitive area of policy and having the moral authority to intervene in national decisions on immigration and security.

France's problems with the Schengen area were there before Sarkozy, and they will remain after he leaves office. So there must be a re-think if the current tensions within the passport-free zone are to ease. One preliminary idea is for Malmström to take a zero-tolerance approach to non-compliance with the existing border and visa codes (as well as EU rules on the security of passports) by bringing countries to the European Court of Justice for minor infractions. That would help convince other members that the passport-free zone is a club where those who do not play by the rules are swiftly taken to task. “France is attached to Schengen, but to a Schengen that works”, said Michel Barnier, then France's Europe minister, in 1995. Given that other members – even Schengen's biggest supporter, Germany – seem to be losing patience with the current system's imperfections, the Commission needs to put this sentiment at the core of any further attempts at reform.

* For a fuller analysis of the politics of the Schengen area, please see the CER report: Saving Schengen: How to protect passport-freetravel in Europe [3]

Hugo Brady [1] is a senior research fellow at the Centre for European Reform.