Suspending Schengen? What the legislation says, the specific case of Ceuta, and the precedents

The assault on Ceuta and the sudden migration crisis that Madrid has been forced to manage have led Prime Minister Meloni and Minister Tajani to call for the suspension of the Schengen Agreement with Spain. Other European leaders have – more or less unanimously – rallied behind the Italian proposal, across a bipartisan spectrum ranging from the Finnish Ministers for the Interior and Finance (True Finns, ECR group), to the Austrian Chancellor Stocker of the ÖVP (People’s Party), and the Danish Social Democratic Prime Minister Frederiksen.

Before making any political judgements, it is worth scrutinising the proposal in the light of what the legislation actually says and assessing certain specifics of the Ceuta case, in order to try to understand whether the approach taken by Rome and other European capitals is an applicable and useful one in this crisis.

The Schengen Borders Code (EU Regulation 2016/399) provides for two distinct mechanisms for reintroducing internal border controls. The first is set out in Article 25, read in conjunction with Recital 27 of the preamble: a Member State may temporarily reintroduce controls at its own borders in the event of a serious and present threat to public order or internal security. This is a form of self-defence: the state that feels threatened acts at its own borders, not at those of others, and the decision is unilateral.

The second is the Article 29 procedure, designed for ‘exceptional circumstances that jeopardise the overall functioning’ of the Schengen area, including – as specified in Recital 30 – a ‘serious failure by a Member State to fulfil its obligations’. Here, however, the difference is substantial: a decision by a single country is not sufficient. A Council recommendation is required, on a proposal from the Commission, instructing one or more Member States to reintroduce border controls. This is the instrument which, on paper, would most closely resemble a measure against Spain for its shortcomings at the external borders of Ceuta, but it requires a collective European decision, not a unilateral Italian act.

The former EU High Representative for Foreign Affairs, Josep Borrell, also weighed in on the matter, arguing on social media that Italy “cannot” suspend Schengen with Spain, because no Member State can unilaterally suspend another state’s participation in the Schengen Area. Borrell’s objection, however, misses the mark entirely. Rome has never suggested expelling Spain from Schengen or suspending its participation. What the Italian government is considering is reintroducing controls at its own internal borders, that is, at its own entry points. This is a measure that affects Italian territory and therefore does not require the Council’s approval: a legitimate unilateral act in itself, not an interference with another country’s sovereignty.

However, a special regime applies to Ceuta and Melilla, meaning that arriving on the two islands does not constitute entry into the European area of free movement. The two exclaves are territories administered by Spain, but are situated on the African continent, separated from the European continent by kilometres of sea (around 20 in the case of Ceuta, and many more in the case of Melilla). The two territories are fully covered by the Schengen acquis: this was confirmed by the European Commission in its 2022 response to a parliamentary question, specifying that their borders with Morocco are external borders of the Schengen area. However, a declaration annexed to Spain’s Act of Accession to the Convention implementing the Agreement introduces an exception regarding exit. The text of the act explicitly states that anyone travelling from there to mainland Spain or other Schengen countries must undergo “identity and document checks on sea and air connections from Ceuta and Melilla”.

Those who arrive there, whether legally or otherwise, cannot leave freely for mainland Spain: they must first pass through that checkpoint. For those entering illegally, Spanish immigration legislation applies, involving identification and, where applicable, an asylum procedure. Transfer to the mainland is not automatic but remains a discretionary decision by Madrid, justified on humanitarian grounds in the event of overcrowding in reception centres.

It remains to be seen whether the Italian proposal has a technical basis, as well as a political one. The first limitation is geographical rather than legal: as already mentioned, there is a stretch of sea between Ceuta and mainland Spain, and the tens of thousands of people who have entered the exclave have not, by crossing the Moroccan border, arrived in Schengen territory in the full sense of the term. It may seem trivial, but it is worth pointing out that any suspension would not concern a ‘border’ in the geographical sense of the term: Italy and Spain do not share a land border, and the reinstatement of controls would entail identity and document checks on those arriving in Italy by flight or ferry from Spain. Even in this form, however, it is unclear to what extent the measure proposed by Rome would affect a phenomenon taking place at the border of a non-continental territory, which is, moreover, already subject to a strengthened exit regime.

Supporters of the Meloni-Tajani line might counter that the administrative filter at Ceuta is not an insurmountable wall, but a mechanism that may give way under pressure. With 60,000 people in an enclave of 85,000 inhabitants, overcrowding is already a reality, and it is precisely on humanitarian grounds that Madrid might authorise transfers to the mainland. Added to this is the asylum procedure, which in many cases grants a temporary residence permit valid throughout Spain, including Ceuta. Finally, there is the less traceable route of irregular migration: in 2021, with far fewer arrivals (around 8,000 people), a significant proportion of those who entered nevertheless reached the European mainland in the following months.

The argument is not without merit, but it could well backfire on those who put it forward. If the process of transferring those who have arrived in Ceuta to mainland Spain takes weeks or months – involving administrative transfers and asylum procedures managed by Spain itself – then the very requirement set out in the Schengen Code for triggering the safeguard clause is missing: a serious and present threat, not a statistical projection of a future and potential influx. The provision is designed for an immediate emergency, not for a risk that is deferred over time and mediated by procedures which, in any case, remain under Spanish control.

These precedents demonstrate just how exceptional, historically speaking, the use of this tool is. Since 2006, when the European Commission began keeping a systematic record, internal controls have been reinstated over 470 times. This has occurred during major international summits, for example, such as the G8 in Genoa and L’Aquila, or the G7 in Taormina. It has also been due to the risk of terrorism, particularly following the attacks in 2015 and 2016 in France and Belgium. In October 2023, eleven countries, including Italy, notified the Commission that they were reintroducing border controls due to the terrorism alert linked to the Brussels attack. Or during the most serious migration crises, such as in 2015 between Hungary and Slovenia, or in 2020 during the pandemic.

In none of these cases has one Member State suspended the Schengen Agreement against another Member State, accusing it of negligence at its external borders: this is an unprecedented scenario in practice.

Ultimately, there are two distinct issues at stake, and it is precisely their overlap that has made the recent controversy more confusing than necessary. From a legal perspective, the safeguard clause does exist, but it is designed for national self-protection: the instrument that comes closest to an intervention against another Member State – the ‘exceptional circumstances’ procedure under Article 29 – requires a recommendation from the Council, not a unilateral decision by a Member State, and has never been activated in this way. In practical terms, Ceuta remains a screened point of entry: the link between those arriving there today and those who might reach Italy tomorrow involves weeks of procedures which Spain manages on its own. Viewed through these two lenses, the Italian proposal appears to respond more to a need for domestic political communication than to an imminent threat requiring control through new and extensive border checks.