By Angelo Marletta
The current European migratory crisis shows how politically sensitive the surveillance of the EU’s external borders is and the dramatic human consequences of the failures of that surveillance. On the one hand, border surveillance is essential to obtain situational awareness and to build an effective border policy. Border surveillance can indeed provide data and patterns to analyze and forecast migratory flows and to coherently plan actions to deal with them. Under EU Law, the surveillance of the External Borders is based on the Schengen acquis.
On the other, failures of surveillance can negatively impact the whole system of border management and, more concretely, the lives of migrants. Notwithstanding the relatively close distances between its shores, the Mediterranean is by far the deadliest sea border for migrants.
In Kingdom of Spain v. European Parliament and Council (C-44/14, 8 September 2015) the Grand Chamber of the Court of Justice (‘CJEU’) delivered its third judgement on Protocol 19 to the TFEU (‘Schengen Protocol’) addressing an essential element of the Schengen cooperation on border surveillance: the European Border Surveillance System – in short, EUROSUR.
The judgment offers a particularly interesting analysis of the EUROSUR system it provided and, more generally, also contains important conclusions on the development of the Schengen acquis with regard to the position of UK and Ireland.
Before addressing the specific case, however, it seems useful to give some brief explanations on the EUROSUR system and on the Schengen Protocol.
What is EUROSUR?
EUROSUR is a technological platform for the operational cooperation and the exchange of information between the Schengen Member States and FRONTEX for the surveillance of the external land and sea borders.
The system was established in 2013 by Regulation 2013/1052 (‘the Regulation’), after a long and controversial legislative process, which started in 2002 with a Communication of the European Commission, putting forward the idea of a ‘permanent process of data and information exchange and processing’. In 2006 and 2007 two feasibility studies were carried out, one by FRONTEX (the 2006 MEDSEA study) and on 2007 (BORTEC study) (for an historical overview see the 2012 study by Hayes and Vermeulen).
From a general standpoint, EUROSUR represents a prominent example of the emerging intelligence-led approach to European border management. Such approach should combine the use of intelligence at the operational/tactical level with the application, at the strategic level, of the typical methods of intelligence analysis to better understand migratory flows, routes and vulnerabilities in the system of the external borders (in this sense, see the recent Proposal on the European Border and Coast Guard, COM (2015) 671 final and its artt. 10 par. 4, 12 and 14 par. 3 that expressly refer to EUROSUR).
In this context, EUROSUR should help to improve the situational awareness and the reaction capability of the Member States’ border authorities and FRONTEX in countering illegal immigration and cross-border crime, and in protecting the lives of migrants.
Despite its legitimate objectives, the new system’s compatibility with fundamental rights has been criticized (for the concerns relating to the protection from refoulement and to data protection, see the 2015 Fundamental Rights Agency Study, pp. 60 ff.). Moreover, its actual capability to detect small vessels and to help protect migrants’ lives has been questioned (see Rijpma and Vermeulen, 2015).
Concretely, EUROSUR connects the national authorities of the Member States in a single communication network and allows them to exchange and visualize in near real time relevant information and data through graphical interfaces called ‘situational pictures’.
On top of this, FRONTEX elaborates and makes directly available to the national authorities two additional graphical interfaces (the ‘European Situational Picture’ and the ‘Common Pre-Frontier Intelligence Picture’) combining information and data received from the national authorities connected to the system.
This immediate exchange of information should allow all the connected authorities to gain better situational awareness about the events occurring at the external borders and to coordinate their reactions in a more efficient way, for instance, by conducting targeted patrols along specific border sections, by intercepting or tracking suspicious vessels or launching search and rescue missions.
Needless to say, the implementation of such a system requires the acquisition and the exchange of the largest possible set of data and information; in this perspective, the EUROSUR Regulation took into account both the importance of exchanging information with neighbouring Third Countries (art. 20 of the Regulation) and with UK and Ireland, as Member States enjoying a peculiar status in the Schengen system. EUROSUR is indeed a measure ‘building upon’ a part the Schengen acquis to which the UK and Ireland are not taking part.
In and out: UK, Ireland, the Schengen Protocol and Article 19 Regulation
The particular position of UK and Ireland in regard of the Schengen cooperation – which constitutes a special form of enhanced cooperation between EU Member States – is regulated by Artt. 4 and 5 Schengen Protocol.
The two Member States are not bound by the Schengen acquis but they participate in some specific areas thereof (for instance, police cooperation) which are currently listed in the Council Decision 2000/365/CE for the UK and Northern Ireland, and in Council Decision 2002/192/CE for Ireland.
Beyond these areas, the UK and Ireland can at any time request ‘to take part’ in further parts of the Schengen acquis, but the Council shall authorize the extension by means of a unanimous decision.
However, the surveillance of the external borders, which the EUROSUR Regulation is aimed to enhance, is an area of the Schengen acquis in which UK and Ireland are currently not taking part.
Hence, the UK and Ireland are currently not bound by the Regulation’s rules.
Nonetheless, Art. 19 of the Regulation enables Member States (but not FRONTEX) to conclude bilateral or multilateral agreements with the UK or Ireland in order to exchange with them certain limited sets of data and information relating to events and incidents occurred at the land and sea borders.
The type of data and information sharable under this agreements is clearly delineated by the provision, whose paragraph (3) further specifies that any information provided in the context of EUROSUR by FRONTEX or by a Member State which is not party to the agreement shall not be shared with UK or Ireland without the prior approval of FRONTEX or of that Member State.
Put differently, Art. 19 (3) of the Regulation puts a significant limitation on the information that can be shared by a Schengen Member State with the UK or Ireland. In particular, the information on the type, status and position of assets (naval units, planes, surveillance drones) belonging to other Member States will be in principle not shared.
The Spanish argument and the Court’s solution: balancing free riding concerns and effet utile.
Unlike the previous episodes of the Schengen Protocol saga (see the previous judgments of the Grand Chamber on FRONTEX, C-77/05, 18 December 2007 and on the Visa Information System, C-482/08, 26 October 2010), the current action was brought by the Kingdom of Spain against the above mentioned Art. 19 of the Regulation in its entirety.
According to the Spanish argument, the conclusion of agreements with the UK and Ireland would surreptitiously enable those two Member States to ‘take part’ in areas of the Schengen acquis to which their participation has not been authorized by the Council under Art. 4 Schengen Protocol. Furthermore, this could also end up in a fragmentation of the EUROSUR system.
Nevertheless, the Court rejected the Spanish claim focusing on the distinction between the participation of the UK and Ireland (‘taking part’) in the sense of Art. 4 Schengen Protocol on the one hand, and on the other the establishment of forms of ‘limited cooperation’ with the UK and Ireland in areas of the acquis to which the latter have not yet been admitted.
According to the Court, such forms of ‘limited cooperation’ should be considered outside the scope of Art. 4 and could be allowed under two conditions.
First, the cooperation must be by its very nature limited; a limited cooperation agreement cannot grant to the UK and Ireland rights ‘comparable to those of the other Member States’ (§ 55). In Art. 19 Regulation, the European legislature included quite clear limitations: the UK or Ireland will receive only limited sets of information and data from the Member State participating in the agreement. More importantly, they will neither have access to the European pictures, nor receive information or data provided by other Member States (unless those Member States would have expressly consented). In other terms, Art. 19 Regulation will not allow the UK or Ireland to free-ride on the EUROSUR system.
As for the second condition, the CJEU specified that the establishment of such forms of ‘limited cooperation’ shall serve ‘the full implementation of the objectives of the Schengen acquis’ (§ 54).
Yet, having regard to the EUROSUR Regulation, the limited exchange of data and information with the UK and Ireland may contribute to increase the level of situational awareness and to improve the effectiveness of the surveillance at the external borders.
Information and data conveyed from those non-Schengen Member States could indeed contribute to close gaps and avoid ‘blind spots’ in the surveillance system (for Instance, with regard to the maritime border sections alongside Gibraltar).
Therefore, contrary to the Spanish plea, the Court found that the agreements based on Art. 19 Regulation, if anything, would help reduce the fragmentation of the EUROSUR system.
Conclusion: more flexibility to negotiate new, more effective Schengen-instruments?
The Court’s judgment contributes to further clarifying the interpretation of the Schengen Protocol, recognizing – after the two previous judgements delivered against the UK – an important element of flexibility in the system.
On the one hand, considering both the tensions that currently affect the Schengen system as a whole and the tensed relationship between the EU and UK, the possibility of resorting to limited forms of cooperation with the UK and Ireland could represent a useful additional tool for negotiating new and more effective measures building upon the Schengen acquis, especially with regard to the management of the external borders. Interesting to notice, the Commission Juncker seems to have promptly seized the opportunity offered by the Court’s judgement (see in particular artt. 43 par. 2 and 50 of the new Proposal on the European Border and Coast Guard, COM (2015) 671 final).
On the other hand, the caveats laid down by the Court of Justice should preserve the philosophy underlying the Schengen Protocol and its ratio to incentivize the largest possible acceptance of the Schengen acquis by UK and Ireland. These two Member States, indeed, will still need to subscribe the respective part of the Schengen acquis in order to access to the core features of the EUROSUR system (or any other Schengen-measure); but, meanwhile, the limited benefits coming from the daily practice of ‘limited cooperation’” could help to make more attractive the full subscription of the measure and eventually overcome the reluctance of UK and Ireland to fully participate in the Schengen acquis.