The EU is looking for its Smart Borders

Currently, the EU does not have a shared system to register the entry of travelers to the Schengen area. The Smart Borders should connect national visa and border system in order to speed up cross-country cooperation and make tracking of data and information easier. The central system should be governed by the European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (eu-LISA).

The 2013 Smart Borders package

Based on this reform, all foreigners entering the EU would be registered through a number of personal data, such as name, ID number, origin, member state, place and date of entry or all ten fingerprints (The Entry/Exit system (EES)).

The Commission has at the same time suggested establishing the Registered travelers Programme (RTP), in which those who travel to the EU on a regular basis (businesspeople, students or researchers) could be registered and skip queues and lengthy border procedures. This programme would be voluntary and people could register in it through their embassy, pay a fee for the visa and pre-submit a number of personal and biometric data. If accepted to the RTP they could cross the border through, for example, automatic gates.

In the initial proposal, access of law enforcement agencies into these databases was supposed to be allowed only on the basis of a concrete on-going investigation.

The European Parliament, NGOs and member states have identified a number of unclarities and problematic points in the proposal, which has led the Commission to ask for new studies mainly on the technical performance and the overall costs of the package[2]

Current developments regarding the Smart borders package

Based on the study, the Commission announced that it is planning to issue a new proposal at the end of 2015 or beginning of 2016. Furthermore, some member states are going to implement a pilot project (at 17 border crossings) this year, in order to test practical implementation of different technical options suggested by the proposal and the study.

The EU´s Multiannual financial framework has already budget allocated to the Smart borders package, which, according to the study, should be able to cover the costs of the systems until 2020. The Commissions study speaks about estimated cost of 622 million Euro.[3]

On 23-24 February 2015 members of national parliaments have held a joint meeting with the European Parliaments LIBE Committee.[4] The Rapporteurs for Smart Borders, Tanja Fajon (SD, Slovinia) and Agustín Díaz de Mera García Consuegra (EPP, Spain) have presented their point of view on the package and possible unclarities and complications. 

What are the burning issues the new proposal needs to tackle

The package presented in 2013 includes a lot of unclarities related to personal data protection. It is not clear which data and for how long shall be collected. Who will have access to the data? How will it be distinguished, who will be able to enter the RTP programme and who will have to go through a more thorough border control? How can we make sure that racial discrimination and ethnic profiling will not happen? What remedies will be available? In addition, when people will be returned to their countries of origin, sharing the personal data from the database with third countries might violate their right to privacy as for unnecessarily adequate data protection legislation in these countries.

Very controversial is the question of Law Enforcement Agencies access to the databases. As mentioned above, in the 2013 proposal, the Commission did not plan to allow for such a general access for not seeing any need for that. Currently the Council might press the Commissions towards it, as all the EU member states support such general access, as well as some of the Members of the European Parliament. The Czech Senate[5] has also said that it would support such access into both systems (EES and RTP). According to the European Data Protection Supervisor (EDPS) the Smart Borders package is designed to allow national law enforcement authorities access to the collected data[6]. This is also advocated by a large number of member states. As stated by the CJEU in the Digital Rights Ireland case[7], this blanket collecting and giving data to the police or other law enforcement agencies is discriminatory and a clear violation of the EU Charter on Fundamental Rights,

The new goal of the proposal to be presented by the Commission in 2016 is still not clear. The main goal declared in 2013 to combat „overstayers“ has not proved itself to be  well founded. Although the EES would provide ‘more accurate information’ about patterns of overstaying, the European Union still lacks a comprehensive approach aimed at addressing the root causes of irregular migration and overstaying. It is also to be noted that the ways to becoming an undocumented migrant are complex and often the result of arbitrary policies and discriminatory procedures over which the migrant has little or no control. Such a collection of good statistics would still not be a practical tool to make sure people do not stay in the EU after overstaying their permit.

It is also not clear whether the EU is using sufficiently the existing systems (such as SIS II, VIS or Eurodac). Would it not be possible to use them more or in a different way or at least implement them in the current Smart borders package proposal?

The Commission’s proposal has been discussed in the Council for months now, so all the EU member states are aware of the proposal and they generally do support it. There has also been a meeting of 16 national parliaments with the LIBE committee, which might signal that the whole process is rather transparent (there is also a position on the package by the Czech Senate[8].

Despite this, the question of transparency of such a big reform in the EU remains. Information about the proposed Smart borders package does not appear in national media, so if agreed and accepted in 2016, it might be a huge surprise for many. First and foremost the question of the overall costs of the new system should be more debated at the national level. A number of countries have to deal with austerity measures and local politicians and citizens would thus probably be surprised how much money has the EU decided to devote to the new – and still quite controversial – security and border management system.

The way forward?

Agustín Díaz de Mera García Consuegra, the Rapporteur for the EES in the EP claims that until 2025 there will be up to 70 million travelers to and from the EU. He deems appropriate that this situation will be better organized. He also believes that we need to combat irregular migration, human trafficking and terrorism. At the same time, he is a supporter of law enforcement agencies access into both databases. The role of the EP will be especially important in the question of law enforcement agencies access as the member states are in favor and the Commission originally rather against it, as well as data protection bodies and NGOs. Would the EP be able to speak in one voice on this, it can finally decide about the law enforcement agencies access.

Tanja Fajon, the Slovinian Rapporteur for RTT in the EP said that this project will have „huge impacts on the EU and how the rest of the world will see us“. One can only agree with that. In 2015 the Commission has promised in-depth discussions with the non-governmental sector, experts, academics, the European Parliament and the Council. The results of the pilot projects should also feed into the way forward for the new Commissions proposal, hopefully better reasoned, securing fundamental rights of migrants, data protection and non-discrimination.