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How national police are destroying the dream of a borderless Europe

ikYfyDhQHruMBy Simon Davies

Imagine you’re a US citizen living in New York, and one sunny day you decide to take an AMTRAK train to see your cousin in Chicago. And why not! What a lovely way to enjoy the trip and to experience hassle-free travel.

All is well until you approach Massachusetts en route to Boston. At the state border, the train is boarded by more than a dozen armed police. They work their way through the train, demanding passports and identification and pulling some travelers aside for questioning.

Millions of tourists – and residents –  traveling in Europe this summer can expect the sort of treatment at internal frontiers that they might have imagined existed several decades ago at the external borders of the then Eastern Europe.

This experience has been more than a little distressing, but you are assured that these checks are necessary, so you settle back to enjoy the rest of the journey.

Then, as you approach Cleveland the same happens again. Ohio border police board the train en masse, demanding documentation and even insisting that passengers remain in their seats. Returning from the toilet you are abruptly detained by three police who demand and then temporarily retain your passport while asking questions about the purpose of travel and how much cash you are carrying. The same process takes place at the Illinois border. By now you rightly wonder whether the 191 year-old legal protection for freedom of movement in the US is anything more than a dangerous fallacy.

The above scenario may read like a dystopian future, but for anyone traveling in “borderless” Europe in 2014 – especially by bus or train – such events are a day-to-day reality.

During one “roadshow” of lectures and meetings earlier this year I was interrogated – as an EU citizen with the supposed right of free movement – multiple times entering Germany, France, Switzerland, Italy and Denmark. This process can be arduous. During one journey from Geneva to Milan, Italian police took my passport, searched my possessions and took me aside for an intense ten-minute questioning during which they threatened to prosecute me if I did not admit to having more than ten thousand euros in cash on me (I doubt I’ve ever even seen that much cash in my life).

Millions of tourists – and residents –  traveling in Europe this summer can expect the sort of treatment at internal frontiers that they might have imagined existed several decades ago at the external borders of the then Eastern Europe.

The sad reality of free movement in Europe is that rather than being dissolved, the internal borders have been allowed to remain active, and activism on the legal right of “free movement” applies more to labour than travel. This is a bizarre situation, given that the dismantling of border controls and frontier posts has been an essential component of the idea of a single and united Europe since its inception well over half a century ago.

Of course it could be argued that authorities are not actually “stopping” EU citizens from traveling; they are merely placing conditions on travel. This theory is unstable. The Schengen agreement, which creates a borderless travel zone across 26 European countries, establishes a limited power for authorities to conduct document checks for travelers – a limitation that seems to be largely respected for air travelers but for no-one else. As a rule, air travelers are required to provide documentation to carriers that will establish they are the ticket-holder, but passengers are largely immune from interrogation by border authorities.

This is indeed how matters should be. The first article of the Schengen border code clearly sets out the objective of establishing the removal of controls “with a view to ensuring the absence of any controls on persons crossing internal borders forms part of the Union’s objective of establishing an area without internal borders in which the free movement of persons is ensured, as set out in Article 14 of the Treaty.

The sad reality of free movement in Europe is that rather than being dissolved, the internal borders have been allowed to remain active, and activism on the legal right of “free movement” applies more to labour than travel.

Section 16 reinforces this point:

“In an area where persons may move freely, the reintroduction of border control at internal borders should remain an exception. Border control should not be carried out or formalities imposed solely because such a border is crossed”

For the removal of any doubt, Article 20 dealing with “Crossing internal borders” states:

“Internal borders may be crossed at any point without a border check on persons, irrespective of their nationality, being carried out.”

But as with so many high-sounding principles in Europe, such rights are subject to provisions allowing member states to conduct procedures in line with their own national rules, for example “c) the possibility for a Member State to provide by law for an obligation to hold or carry papers and documents.”

In other words, Italy – for example – can justify border checks on the basis that its own national anti-terrorism law requires travelers to show identity documents. The resulting irony (or abuse) is that member states are able to use powers mandated by the Schengen Implementing convention (intended to allow an increase in internal checks within a country) to almost completely subvert the convention’s intent to reduce border controls.

Armed with such exceptions – and now largely displaced from their role at airports – those authorities are free to infest buses and trains with little challenge or intervention at the European level.

Why only trains and buses? Possibly this is because of clause 22 of the Schengen code that requires the removal of any obstacle of any description that slows down traffic at the border.  Authorities can however freely board buses and trains without slowing the traffic.

Steve Peers, Professor of Law at the University of Essex, told the Privacy Surgeon that while routine identity checks should not be conducted at borders, authorities nonetheless continue the practice.

And what if a traveler happens to be crossing an EU border without a valid ID card or passport? The answer to this question appears to be muddy at best. Peers observes:

“There is nothing in the Schengen rules to specify how to determine an EU citizen’s identity in such cases, so EU free movement law would apply. (Article 3 of the Schengen Borders Code says that the whole code is without prejudice to EU free movement law).”

Article 5.4 of the citizens Directive says this:

4. Where a Union citizen, or a family member who is not a national of a Member State, does not have the necessary travel documents or, if required, the necessary visas, the Member State concerned shall, before turning them back, give such persons every reasonable opportunity to obtain the necessary documents or have them brought to them within a reasonable period of time or to corroborate or prove by other means that they are covered by the right of free movement and residence.

This means that in law, border police in the “borderless” Europe still have the power to “turn back” even an EU citizen at the frontier, which begs the fascinating question of what happens if police on both sides of the border decide to refuse entry to that citizen. The hapless traveler could be the victim of a statelessness ping-pong.

On the question of identity documents, Peers suggests the following:

“Any other documents that can indicate citizenship will count as ‘other means’ for the basis of this clause (it’s based on a CJEU judgment called Oulane). Any documents that otherwise prove identity, even if they don’t prove nationality as such, could still be useful as proof of EU citizenship. Any other letters from the embassy or employers etc confirming identity and nationality might also be of some use, especially if they include a photo.”

The Privacy Surgeon has contacted DG JUSTICE for clarification of these points.