EU border controls must be 'an exception'

DW: Mr. Pötzsch, what do you think about the calls for stricter border controls at the outer borders of the Schengen Area?

Urs Pötzsch: After the dramatic events in Paris, it's understandable that officials want to use all legal means available to ensure the safety of the people living in Europe.

And what's the current situation for EU citizens who return to the Schengen Area, for example after a stay in the UK, which is not part of the Schengen Agreement?

The Schengen Borders Code stipulates that entering or exiting the Schengen Area is only allowed at proper border crossings, so that a true check is possible. Everybody passing through these checkpoints has to undergo a so-called minimum check, no matter what citizenship they have.

That means every person will undergo an ID check to establish their identity. The officers will also make sure that the traveler's passport is valid and real. For EU citizens, this check has been sufficient so far. Non-EU citizens have a lot more checks to go through. One of the measures is to search for the person in several databases to see if there is information about them.

After the Paris attacks, border controls have been intensified between countries inside the Schengen Area as well. Who decides when to reinstate these temporary border controls in the "boundless" EU?

It's up to the member states to introduce border controls for a certain time period. There are actually two different kinds of checks they can establish.

One case are the planned controls. If member states can make a case for a serious threat to public safety, they can put these border controls in place - if they announce their intent to the European Commission and the other members four weeks in advance.

These controls are only supposed to last 30 days. But the Borders Code allows for several extensions of up to six months, or even two years. Of course, the pressure to justify the controls increases the longer they go on.

The second option are immediate checks. Again, in the case of a serious risk to public safety, member states can take action immediately. They do still have to tell the Commission and the other member states about it right away. For these immediate border controls, the Borders Code stipulates a maximum length of 10 days to make clear this option is only for emergencies. Extensions are an option here as well, though.

Who decides whether these border controls are actually justified? You can always find some danger lurking somewhere, so isn't there the likelihood of these controls becoming endlessly extended "temporary" checks?

The Borders Code is a European regulation that works like a law. Individual citizens can go to court, if they think their rights according to the code have been violated. The other option is EU treaty violation proceedings, which can be triggered by the European Commission. The Commission makes sure that member states apply European law correctly. If that's not the case, the Commission can sue a member state at the European Court of Justice in Luxembourg.

The treaty violation proceedings can be applied when it looks like a state keeps extending its border controls in a way that's not in accordance with the Borders Code.

How often do countries make use of their right to reinstate temporary border checks?

Over the last few years it has happened every now and then, especially before major events. Germany had border controls when it hosted the FIFA World Cup in 2006, or when the G8 leaders had their summit in the northeastern town of Heiligendamm in 2007.

Is there any way to establish permanent border controls between countries in the Schengen Area and still stick to the EU treaties?

Well, the free movement of persons and labor is at the core of the treaties - and it is granted to everyone inside the Schengen Area, not just to EU citizens. It's recognized as a basic right in the EU Charter. So the Borders Code states very clearly that border checks inside the Schengen zone have to remain an exception.

There's been much discussion about the border controls in the past week. How effective do you think they really are?

Looking at the checks on the Schengen Area's outer borders: EU citizens' names can be searched in a database, others' have to be checked. But the question isn't just whether someone appears in one of these databases, but also how current the information is. It could happen that someone with a criminal record easily passes the border checks, because that information hasn't made it into the databases. So how effective the controls actually are depends on how well different authorities work together and how up-to-date the databases are.

Urs Pötzsch is a lawyer and works at the Center for European Policy in Freiburg, in southern Germany. He's an expert on EU treaties and institutions.