EU interior ministers have decided that they have the final say on whether to impose emergency border controls within the EU's border-free area. Neither the EU commission nor the EU parliament is happy about it.
It's already the case that an EU member state can impose border controls temporarily under certain circumstances. Poland will be doing so, for example, to stop hooligans from traveling to the European Football Championship. Border controls are also allowed in emergencies, such as natural catastrophes or terrorist attacks
Yet normally there are no routine border controls in the so-called Schengen area, which includes most of the EU and even some non-EU countries. The only exceptions are when public order is at stake, and that's a decision which is made by each individual state. Most EU governments want to see the current rules continue.
But the EU interior ministers, meeting in Luxembourg on Thursday, have decided that an influx of refugees should also be a possible reason for re-imposing controls. First it was the refugees from North Africa landing on the coast of Italy which were worrying the governments; now it's Greece which is seen as the problem.
Greecehas so far not succeeded in securing its border with Turkey. And since Greece is in the Schengen area, it means that refugees who get that far can continue to travel to any other country in the zone.
"The situation at the Greek-Turkish border shows that we need a clear mechanism to deal with it," said the Austrian Interior Minister Johanna Mikl-Leitner.
States are sensitive when it comes to security
So the ministers have agreed an emergency procedure for "when the control of an external border is no longer ensured due to exceptional circumstances."
For the German interior minister, Hans-Peter Friedrich, one point is particularly important: "The final right to decide remains with the member states, since we are responsible for the security of our citizens."
The basis for the reintroduction of border controls will continue to be a recommendation by the Commission or the EU Council of Ministers, but the individual states don't have to follow that recommendation.
"We can't accept that someone else decides on our border controls," said Friedrich's Swiss counterpart, Simonetta Sommaruga, whose country is a member of the Schengen area, even though it's not in the EU.
The Commission's lost cause
Such a view is completely unacceptable to the EU commissioner for interior affairs, Cecilia Malmströjm. She argues that it weakens the Schengen area.
"If, under exceptional conditions we will have to reinstall [borders]," she says, "that will have to be a joint decision in the European Union; not [just] one state can decide upon that."
She fought to keep the decision on the European level, saying that the influx of refugees which had occurred so far could in no way be seen as a threat to pubic order. She fears a different threat created by the abuse of the emergency mechanism: a threat to the free movement of people. Schengen, she said, was a "European achievement" which was worth defending.
The European parliament threatens to go to court
Germany's interior minister sees it less dramatically: if a country is no longer able to secure the EU's outer borders, the first response should be for the rest of the EU to support it.
"The emergency mechanism is something which should only come right at the very end, as a last resort, when everything else has failed," he said.
But the main issue is one of principle: mutual agreement, or the rights of the individual states.
The battle with the Commission over Schengen has been won for the time being by the states, but that may not be the end of the war. The states may not have reckoned with the European Parliament, which feels it has not adequately been involved in the decision-making process and is considering taking the issue to court.
"We suggest that the European Court of Justice should check the legal situation," said Manfred Weber of the Christian Democrats group. He belongs to the same party as the German interior minister - and that only goes to show once more that people may think quite differently at the European and the national level.
Author: Christoph Hasselbach, Brussels / mll
Editor: Andreas Illmer