Catching Up with Securitization: EU Citizenship and Free Movement in a Border-Free Area

EU nationals theoretically enjoy a mobility regime that is free and characterised by a lack of internal border controls within the Schengen+ area. This paper examines how the many crises witnessed by the EU in the last decades, from the so-called migration crisis to the Covid-19 pandemic, have chipped away at the idea of free movement and affected fundamental rights’ protection for everyone. Member States have routinely reintroduced internal border controls to deal with varied security threats, while the border control measures adopted during the Corona pandemic fit seemingly within this longer trajectory of restrictions warranted by security concerns but not necessarily meeting the legal conditions of the Schengen Border Code (SBC). Legally, the Covid-19 related border measures required a judicial (re)interpretation of the notion of public security as including public health emergencies, which would operate as an ex-post legitimation of Member States’ practices. At the same time, the revised SBC introduces the possibility to rely on alternative measures to border controls to break away with Member States’ practices that have normalised internal border controls despite their supposed exceptional nature. These proposed measures have been criticised for their effects on the fundamental rights of migrants and persons seeking protection, but their impact on the rights of EU citizens is less discussed. This issue requires further investigation especially since according to EU law, the SBC neither calls into question, nor affects the rights of free moment of EU citizens and their family members. The paper argues that despite the above suggested non-friction between Schengen and free movement rights for EU citizens, the latter are not insulated against SBC developments which have homogenising effects in terms of lowering fundamental rights protection for TCNs and EU citizens alike.