War as an external challenge to internal coherence: Assessing the EU’s response to member state travel bans on Russian nationals

The full-scale Russian invasion of Ukraine on 24 February 2022 shocked Europe. It demanded, and largely received, a robust and unified response from the European Union (EU) and its member states. Yet, the war has also exposed divisions, some of which touch on the coherence of EU legal order. This is well illustrated by the debate over whether Russian nationals should be banned from travelling to Europe’s Schengen area. Such a policy was rejected at the EU level, only to be imposed unilaterally by a number of member states, namely Estonia, Latvia, Lithuania, and Poland. This series of events poses a dilemma for the EU, and especially for the Commission, as the body charged with overseeing the implementation of EU law. In responding to the actions of Poland and the Baltic states, the Commission has three broad options. First, it could seek to accommodate the preferences of the non-compliant states through formal amendment of the relevant legal provisions. Second, the Commission could enforce the law as it stands by initiating infringement proceedings against the non-compliant states. Third, the Commission may choose to tacitly tolerate the non-compliant behaviour; a strategy that would render it a form of ‘de facto differentiation’ (Hofelich 2022). That is, differentiation that, rather than being established via legal arrangements, is created via the circumvention of EU law. The purpose of this paper is twofold. First, I use the case of Schengen entry bans imposed on Russian nationals by several EU member states to assess the utility of the concept of de facto differentiation. That is, how does the concept of de facto differentiation differ from, and what does it add to existing categories of wilful non-compliance and de jure differentiation? Second, I use this case to assess the EU’s capacity to respond effectively to non-compliance with EU law on issues that are highly contentious and politicised. I suggest that the EU finds itself in a position in which de facto differentiation may be the Commission’s least worst option. Yet, this in turn reveals a troubling unwillingness and inability on the part of the EU to defend its own legal order in the face of persistent, politicised, and publicised instances of outright non-compliance.