Sébastien Le Cœur of labour law specialist MGG Legal considers the consequences of a restriction or possible end to the Schengen Agreement on labour mobility.
The free movement of people was originally established in the Rome Treaty in 1957 as part of the internal market. At that time, it covered only the free movement of workers and freedom of establishment. In 1992, the Treaty of Maastricht introduced the notion of EU citizenship that then formed the basis of the right of persons to move and reside freely within the territory of member states.
With the conclusion of the Schengen Agreement, which came into force in 1995 and abolished the EU's internal borders, the free movement of people became effective. Schengen enables passport-free movement across the Schengen area not only for EU citizens but also for people who are legally present in one Schengen country (meaning that they have a residence permit, a permit to work or a Schengen visa) and for their families in some circumstances.
Fearful of mass immigration, over the past few months six countries have reintroduced border controls: France, Germany, Austria, Norway, Sweden and Denmark. The press has reported that Mark Rutte, the Dutch prime minister, has warned that the EU has ‘six to eight weeks’ to save the Schengen system of border-free travel.
On 25 January, EU interior ministers decided to invite the European Commission to prepare the legal and practical basis for the continuance of border measures through Article 26 of the Schengen Borders Code, which allows states to keep temporary border controls in place for a maximum of two years ‘in exceptional circumstances.’
What are the potential impacts on labour mobility?
In the context of the re-establishment of internal borders, the consequences on EU citizens will probably be limited, as freedom of movement remains for all EU citizens. The main consequence will only be that it will take more time to travel to another EU member state, as there will be systematic identity checks. The situation will be the same as it is now when travelling to the UK or any member state that does not belong to the Schengen area.
The main impact might be observed for non EU citizens. Under the Schengen Agreement, those holding a residence permit, a permit to work or a Schengen visa can freely travel and under some conditions work in another member state. With the restriction of the agreement, it is likely that their documents and identity will be checked more carefully when travelling and perhaps some guarantee of coming back could be requested, as well as proof of sufficient resources to stay in the country. It could also be that the procedures to be granted a Schengen visa will take more time and that more documents will be required.
The immediate impact of the restriction of the Schengen Agreement on labour mobility mainly appears to be that travelling within Schengen countries will take more time (and therefore cost more money) to travel within the EU because of systematic ID checks and because of more controls on the documents needed to be granted a Schengen visa.
The immediate impacts of the restriction of the Schengen Agreement on labour mobility mainly appear to be that travelling within the EU will take more time (and therefore cost more money) because of systematic identity checks and tighter control on the documents needed to be granted a Schengen visa.
Even if it does not seem to be on the current agenda and does not even look feasible, it is important to evaluate the consequences of the end of the Schengen Agreement and the re-establishing of national borders within the EU. Due to the existence of the right of persons to move and reside freely that exists in EU treaties, the situation for EU citizens would be no different than that of a suspension of the agreement.
But for non EU nationals, it means that they will have to comply with the rules of entry applicable to each member state (e.g. the Code de l’entrée et du séjour des étrangers in France), as the Schengen visa that allows people to freely travel within the Schengen countries would of course no longer exist.
Sébastien Le Cœur is an attorney at French labour and employment law specialist MGG Legal.