Watching the Guards: Ensuring Compliance with Fundamental Rights at the External Borders

This article examines the means the Commission has at its disposal to address non-compliance with the Schengen borders acquis in general, and with fundamental rights at the external borders in specific. First, it will look at the Commission’s enforcement powers under primary law, most importantly the infringement procedure. Second, it will examine two alternative instruments aimed to ensure compliance with the Schengen (border) rules, namely the Schengen Evaluation and Monitoring Mechanism (SEMM) and the Vulnerability Assessment Mechanism (VAM). Third, it will examine to what extent conditionality can be applied to the EU’s funding instruments for the management of immigration, asylum and external borders as a means of enforcing compliance with the Schengen acquis, and in particular the role of national border monitoring mechanisms. It will show that although alternative forms of compliance management may improve the oversight over Member States’ implementation of EU law, when it comes to ensuring the respect for fundamental rights, they can at best complement the Commission’s enforcement powers.