Background

1. National and regional ombudsmen in the European Network of Ombudsmen may ask the European Ombudsman for written answers to queries about EU law and its interpretation, including those which arise in their handling of specific cases.

2. The Ombudsman of the Basque Country has been dealing with complaints about the closure of the pedestrian bridge on the Franco-Spanish border between Irun (Spain) and Hendaye (France). The complaints were lodged by the mayors of the cross-border municipalities of Irun and Hondarribia (Spanish Basque Country) based in turn on the complaints of Basque citizens bordering the river Bidassoa because of the unilateral closure by France, since 14 January 2021, of the Avienda pedestrian bridge between Hendaye and Irun.

3. The Basque Ombudsman states that despite the subsequent reopening of some of these crossing points, the pedestrian bridge between Hendaye and Irun remained closed. Moreover, it was the only point that remained closed among the six bridges overlooking the Bidassoa. The Ombudsman was concerned that the closure of the border crossing represented an interference with the right of free movement of residents on both sides of the border, which had a considerable negative impact on local trade and cross-border business.

4. On 19 July 2023, the Basque Ombudsman wrote to the French Défenseure des droits asking for her to intervene, if possible, in order to ensure compliance with EU law. He also contacted the Spanish Ombudsman. On the same day the Basque Ombudsman contacted the European Ombudsman, enclosing a copy of the letter to the French Ombudsman and asking her to consider intervening with the European Commission.

The questions addressed to the Commission

5. Based on the query, on 4 August 2023, the European Ombudsman asked the Commission the following questions:

▪ 1. Is it compatible with EU law for a Member State to unilaterally close a pedestrian border crossing between two Member States for in excess of 30 months, where it is the only bridge that is closed among six along the same boundary river, and if so, under what circumstances?

▪ 2. Is it compatible with EU law that the Member State who closed the border crossing based on concerns as regards ‘new terrorist threats..... and irregular entry flows at the external borders’ can re-open that crossing for a day to allow for the passage of a sporting event across it and then close it again?

The Commission's reply

6. On 19 September 2023, the Commission provided its reply. In it, the Commission explained that controls had been reintroduced along the internal border between France and Spain since November 2015.

7. The decision to reintroduce controls by the French authorities was based on Article 25 of the Schengen Borders Code[1], which allows Member States to temporarily introduce such controls as a measure of last resort in response to a serious threat to public policy or internal security. This right of Member States is without prejudice to the right of free movement, which may be restricted in these circumstances.

8. As regards the temporal aspect of the reintroduced controls, the Commission explained that ‘[w]hile in principle the Schengen Borders Code sets a time-limit of 6 months for the reintroduction of internal border controls, this time-limit applies only to the reintroductions based on the same grounds. Therefore, in case of the new threats to internal security and public policy, the Member States may reintroduce internal border controls again.’

9. The Commission referred to the recent judgment of the Court of Justice of 22 April 2022 in the joined cases C-368/20 and C-369/20[2], which confirmed the legal framework and the applicable time limits in cases where new threats are identified. The Commission explained that the previous decision to reintroduce border control by France was based on concerns as regards the terrorist threats and increase in irregular entry (covering the period 1 May 2022 to 31 October  2022) but that the current decision was based on threats related to COVID 19. The Commission provided a link on its website to an overview of decisions where controls have been reintroduced.

10. The Commission also explained that it is for the Member States to decide on the scope of the reintroduced controls based on their experience and risk assessment, which may involve restricting certain border points along an internal border. Since October 2022, the Schengen Coordinator[3] has been in discussion with a number of countries, including France, which have in place long-term controls where they continue to face serious threats to their internal security and public policy. In light of the recent notifications for reintroduced controls, the Commission has also consulted those Member States.

11. In relation to the second question posed, the Commission stated that it is the Member States who are best placed to determine the existence of risks and of the necessary measures to address them. These should take account of available intelligence and can be adjusted accordingly. Thus, there may be instances where a border point is opened temporarily for a sporting event.

12. In conclusion, the Commission stated that it was aware of the impact of border closures in cross-border regions and that it is ‘working on restoring a fully functioning Schengen area, where internal border controls are a measure of last resort, by means of the dialogue orchestrated by the Schengen Coordinator and through the Schengen cycle’. The reduction in border crossing points has been the subject of trilateral discussions between France, Spain and the Schengen Coordinator.

13. The Commission is finalising an amendment to the Schengen Border Code (proposed in December 2021), under which Member States who decide to reintroduce internal border controls ‘must assess not only the appropriateness of the reintroduced controls and their likely impact on the free movement of persons, but also their impact on the cross-border regions.‘

14. On 19 September 2023, the European Ombudsman sent the reply of the Commission to the Basque Ombudsman for their comments.

15. On 25 January 2023, the Basque Ombudsman replied that the explanations provided by the Commission adequately addressed its query. They stated that France had announced the re-opening of the cross-border bridge at the end of October 2023 and they thanked the Ombudsman for her support in submitting the query to the Commission.

The European Ombudsman's conclusion

16. The explanations provided by the Commission are detailed and very helpful. The Commission clearly set out the legal framework (Schengen Border Code or Code) under which Member States may introduce temporary border controls along internal EU borders. It also provided links to useful resources to monitor the application of border controls and the reasons justifying them and provided an update on the current state of play on the revision of the Code. To this end, it is noteworthy that the concern raised in this query, that is the effect on cross-border regions or temporary border closures, will form part of the assessment that will be required to be carried out before such border controls are put in place in the future.

17.  In light of this, and the above‑mentioned report, the Ombudsman considers that the issues raised in the query have been adequately clarified. The Ombudsman therefore closes the query.

The Basque Ombudsman and the Commission will be informed of this report.

 

Rosita Hickey
Director of Inquiries

Strasbourg, 12/02/2024

 

[1] Article 25 of the Schengen Border Code entitled ‘General framework for the temporary reintroduction of border control at internal borders’ states ‘1. Where, in the area without internal border control, there is a serious threat to public policy or internal security in a Member State, that Member State may exceptionally reintroduce border control at all or specific parts of its internal borders for a limited period of up to 30 days or for the foreseeable duration of the serious threat if its duration exceeds 30 days. The scope and duration of the temporary reintroduction of border control at internal borders shall not exceed what is strictly necessary to respond to the serious threat.

2. Border control at internal borders shall only be reintroduced as a last resort, and in accordance with Articles 27, 28 and 29. The criteria referred to, respectively, in Articles 26 and 30 shall be taken into account in each case where a decision on the reintroduction of border control at internal borders is considered pursuant, respectively, to Article 27, 28 or 29.

3. If the serious threat to public policy or internal security in the Member State concerned persists beyond the period provided for in paragraph 1 of this Article, that Member State may prolong border control at its internal borders, taking account of the criteria referred to in Article 26 and in accordance with Article 27, on the same grounds as those referred to in paragraph 1 of this Article and, taking into account any new elements, for renewable periods of up to 30 days.

4. The total period during which border control is reintroduced at internal borders, including any prolongation provided for under paragraph 3 of this Article, shall not exceed six months. Where there are exceptional circumstances as referred to in Article 29, that total period may be extended to a maximum length of two years, in accordance with paragraph 1 of that Article.’ (emphasis added)

[2] See paragraphs 79-81 of the judgment

[3] As part of new structures proposed by the French Presidency of the Council, to (i) prepare the work of the Schengen Council and ii) to ensure the follow-up of the measures and actions taken in the framework of the Schengen Council. The Schengen coordinator would also play a central role in case of crisis at the external borders, in order to ensure a proportionate and appropriate European response at all levels.