The concerns of ECAS about any extension of the safeguard clause to reintroduce border controls within Schengen were expressed in a statement on May 9 2011. In a follow-up comment, ECAS stressed six reasons why the (European) Commission should hold back from making proposals which could create a dangerous precedent and undermine European citizens’ free movement rights.

ECAS is increasingly alarmed by the way decisions appear to be taken. At the European Council meeting of June 23 and 24, it was stated that "as a very last resort, in the framework of this mechanism, a safeguard clause could be introduced to allow the exceptional reintroduction of internal border controls in a truly critical situation where a Member State no longer able to comply with its obligations under the Schengen rules. Such a measure would be taken on the basis of specified objective criteria and a common assessment, for a strictly limited scope and period of time, taking into account the need to be able to react in urgent cases. This will not affect the rights of persons entitled to the freedom of movement under the Treaties. The Commission is invited to submit a proposal for such a mechanism in September."

The European Council, like the European Parliament, and in future one million citizens, can ask the Commission to make a legislative proposal, while the latter preserves the sole right of initiative. Where the legislative decision-making process is triggered in this way, should it follow exceptional procedures? That could be a recipe for maladministration.

Concerned about changes to Schengen being imposed in a top-down fashion, ECAS pointed out that free movement concerns citizens and a wide range of operators. Therefore, any suggested change should be subjected to the normal consultation procedure before proposals are made. "The Commission is strongly committed to carry out consultation with civil society – as enshrined in Article 11 and when preparing the respective legislative proposals, attention will be paid to do so by appropriate means," ECAS told Commissioner Malmström in a letter of June 22 2011.

Instead of following this up and launching a consultation process in which everyone has an opportunity to have their say, decision-making is apparently proceeding in the obscurity of leaks to privileged parties, claims and counterclaims about what the Commission is apparently about to propose. The Commission would do well to mark a pause for reflections and hear the voice of all interested parties.
 
European Citizen Action Service (ECAS),
Brussels