Listen: Are EU countries allowed to bring back border controls whenever they want?

Production: By Europod, in co-production with Sphera Network. EUobserver is proud to have an editorial partnership with Europod to co-publish the podcast series “Briefed” hosted by Léa Marchal. The podcast is available on all major platforms. Find the full transcript below: Italy brought back border controls with Spain in August, and has now extended them until at least 15 October. Giorgia Meloni’s government fears that migrants who arrived in Ceuta, reach the continent and Italy. Are these restrictions legal in the Schengen area? What are the EU’s levies to avoid such controls? Since 1 August, Italy has temporarily reintroduced controls at its air and sea borders with Spain. The measure has now been extended until 15 October. In return, Spain has also introduced controls at its air and sea borders with Italy. “This is not against Spain” the Italian foreign affairs minister Antonio Tajani said, adding “we have a duty to protect our borders.” The starting point was the arrival of tens of thousands of migrants in the Spanish enclave of Ceuta at the end of July. Italy said it was concerned about possible secondary movements towards the rest of Europe, and brought back controls at its borders with Spain. But from a legal point of view, EU countries can’t simply reintroduce border controls whenever they want. The Schengen area is based on the principle of free movement, meaning there should normally be no checks at internal borders. The Schengen Borders Code provides an exception. If a country faces a serious threat to public policy or internal security, it can temporarily reintroduce border controls, as a measure of last resort. The controls can initially be introduced for up to 30 days, and can then be extended under certain conditions. Italy has already extended its measure, which has now been in place for more than two months. What does the European Commission say about Italy’s decision? The Commission has been asked about the Italian controls and says it is currently assessing the situation. But the Brussels-based organisation The Good Lobby argues that Italy is violating the Schengen rules. It filed a complaint with the European Commission, asking it to open an infringement procedure against Italy. According to Alberto Alemanno, who filed the complaint, there is no security threat that would justify bringing back the controls. His argument is that none of the migrants who arrived in Ceuta were transferred to Italy. And, he says, people travelling between Ceuta and mainland Spain are already subject to identity checks. So Italy’s justification, he argues, does not meet the conditions set out in the Schengen Borders Code. Now, is Italy the only EU country bringing back border controls? No. If you look at the notifications sent by EU countries to the European Commission, around ten countries have reported temporary controls at some of their internal borders in recent months. In response to the situation in Ceuta, Italy is the main example. Austria also notified the Commission of controls in September, citing the situation in Ceuta among several reasons. But those controls concern its land borders with Slovakia, the Czech Republic, Hungary and Slovenia. So Austria is not checking passengers arriving by air from Spain. Germany, for example, has invoked the same exception in the Schengen rules to carry out controls at its land borders with all its neighbours. That does not mean that every border crossing is closed, or that every traveller is systematically checked. It means German authorities can carry out checks at those borders, including spot checks. Germany's main justification is continued migratory pressure, alongside other security concerns. And for now, the Commission is kind of letting all of this happen. It did raise concerns at some point: in June, the Commission published an assessment of temporary border controls in nine EU countries, including Germany, Austria and Italy. It did not formally declare these countries' controls illegal. Instead, it called on them to work towards lifting the controls, arguing that the EU has put in place measures to address some of the risks being invoked to justify them. Those measures include the new Migration and Asylum Pact and new rules on entry and border management. The bigger question, then, is how long temporary border controls can remain in place before they stop being an exception to Schengen and become the new normal.