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Blog posts published on the JCMS blog are based on articles published in the journal. The authors are all guest authors.
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Enemy at the gates? Member state unilateralism and Commission tacit toleration in the treatment of Russian nationals at EU borders
by Dr Nicole Scicluna (Hong Kong Baptist University)
As we pass the third anniversary of Russia’s full-scale invasion of Ukraine, the EU continues to deal with the many challenges to which the conflict has given rise. An overarching challenge is that of maintaining unity of purpose and of action – a task that becomes more difficult as the Trump administration’s apparent animosity towards Ukraine and Europe threatens the EU’s Ukraine strategy from without and as recalcitrant national leaders seek to undermine it from within.
My recent contribution to JCMS deals with another aspect of the unity challenge; namely that of maintaining the coherence of the EU’s legal order. In particular, this challenge has manifested on the EU’s external borders with Russia and Belarus. One aspect of it is well known – what has been described as the ‘instrumentalisation’ of migration by the Russian and Belarusian regimes, which have encouraged and facilitated the movement of would-be asylum seekers and migrants across the EU’s Eastern frontiers. The response of the affected countries, particularly Latvia, Lithuania and Poland, has garnered much attention and consternation for the way in which it has prioritised the securitisation of borders over the human rights and humanitarian needs of vulnerable people. Criticism has extended to the European Commission for not only condoning non-compliance with existing EU asylum law, but actually making it easier for states to derogate from their legal obligations.
Yet, this is not the only respect in which the actions of countries on the EU’s Eastern border undermine the coherence of the EU’s legal order. The treatment of Russian nationals seeking entry to Europe also warrants attention. This is an issue that goes back to the early months of the war and to debates over the type, breadth and depth of sanctions that should be levied on Russia for its illegal and brutal aggression. As the EU was placing sanctions on individuals and companies directly associated with the Russian government or with connections to the war, there were suggestions from some quarters that restrictive measures should be extended to the Russian population as a whole, with a focus on Russian tourists in the Schengen area.
Then-Estonian prime minister and now-EU high representative, Kaja Kallas, for example, argued that travel to Europe was ‘a privilege not a human right’ and that the privilege should be withdrawn from Russians owing to the illegal war their government was waging on Europe’s borders. The question was put on the agenda of a meeting of EU foreign ministers in Prague in August 2022, at which the idea of a total ban on Russian tourists obtaining Schengen visas was rejected.
Nevertheless, on 8 September 2022, Estonia, Latvia, Lithuania and Poland jointly announced that they would begin refusing entry to Russians holding Schengen visas issued by other member states. After some hesitation over the legality and viability of such an approach, Finland announced that it would also stop receiving visa applications in Russia and would deny entry to Russian holders of Schengen visas on 29 September 2022. Thus, the five EU member states bordering on Russia and/or Belarus (and which, therefore, account for the vast majority of Russians entering Schengen, given that the EU closed its airspace to flights originating in Russia at the outset of the war) effectively replicated among themselves the kind of Russian tourism ban that had been rejected by the Council.
The problem with this ‘regional solution’ is that it likely violates Schengen law, which does not allow for nationality-based bans on the granting of Schengen visas or entry at Schengen borders. And yet, the Commission has refrained from criticising these legally dubious policies, much less initiating any kind of enforcement action.
Would-be Russian tourists are not an obvious target for sympathy. But putting aside the substance of the dispute, the larger issue is that of creeping member state unilateralism and the Commission’s permissiveness towards it. Political agreement and legal obligation are the European Union’s lifeblood. When member states act outside the limits of what EU law permits, it is for the Commission, as ‘guardian of the treaties’, to take the lead in seeking redress. Yet, research has shown a steady decline in the number of infringements opened by the Commission over the past two decades. Moreover, the findings suggest that the proximate cause of this drop is not a fall in instances of probable non-compliance, but rather a growing preference inside the Commission for political solutions to legal compliance problems.
The Commission’s enforcement forbearance is especially evident when it comes to migration and borders. Aside from its deference to national prerogatives on migrant instrumentalisation, it has enabled – through both action and inaction – the widespread and prolonged reintroduction of internal border controls, seriously undermining one of the foundational principles of the Schengen area.
One may well understand why the Commission is reticent to lock horns with member states on matters of great political sensitivity. But at a moment when the prospective German chancellor, Friedrich Merz, wins an election campaigning on permanently reintroducing controls at all of Germany’s internal borders, the Commission’s tacit toleration of member state unilateralism seems to be contributing to an unravelling of foundational principles of EU legal order.
Dr Nicole Scicluna is an Assistant Professor in Government and International Studies at Hong Kong Baptist University. Her research and teaching interests include European and EU politics and law, and the relationship between international law and international politics. She can be contacted on Linkedin here and followed on X/Twitter here.
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Dr Nicole Scicluna is an Assistant Professor in Government and International Studies at Hong Kong Baptist University. Her research and teaching interests include European and EU politics and law, and the relationship between international law and international politics. She can be contacted on Linkedin here and followed on X/Twitter here.
