Leers

Yesterday, I took the liberty of writing on my Facebook page that Minister Leers, the Dutch Minister for Immigration, is an idiot. His lawyers should never have let him near this matter, given that they should be claiming in the face of all evidence that it is not his responsibility. My response is based on this newspaper report from EUObserver:

Dutch minister: Border cameras do not break EU law

BY ANDREW RETTMAN

BRUSSELS - The Dutch interior minister has told Brussels his new border cameras will catch illegal immigrants without breaking EU rules.

Gerd Leers defended the project - which has already seen military-grade surveillance technology installed on main roads from Belgium and Germany - in a letter sent to the European Commission on Friday (27 January) and seen by EUobserver.
(...)

Now, this story is not as bad as other versions I have seen. However, it still defends the measure as essentially one of immigration - as indeed it has to as long as Minister Leers's name is under the letter - even though this is a highly suboptimal defence.

When this camera-idea was first mooted, I looked into the actual Schengen Border Code, in order to decide for myself whether this would be legal. The SBC distinguishes between two kinds of border control:

9. ‘border control’ means the activity carried out at a border, in accordance with and for the purposes of this Regulation, in response exclusively to an intention to cross or the act of crossing that border, regardless of any other consideration, consisting of border checks and border surveillance;

10. ‘border checks’ means the checks carried out at border crossing points, to ensure that persons, including their means of transport and the objects in their possession, may be authorised to enter the territory of the Member States or authorised to leave it.

11. ‘border surveillance’ means the surveillance of borders between border crossing points and the surveillance of border crossing points outside the fixed opening hours, in order to prevent persons from circumventing border checks;

Of these, border checks are abolished for the internal borders under art. 20 SBC. Moreover:

Member States shall remove all obstacles to fluid traffic flow at road crossing-points at internal borders, in particular any speed limits not exclusively based on road-safety considerations. (art. 22 SBC)

Now here's the problem: Border checks are not defined based solely on whether they involve an "obstacle to fluid traffic flow". Instead, they are defined based on the intent of the check: you may not check individuals to make sure that they are authorised to enter your territory. As far as I can tell, those random checks the Minister is talking about have no basis in the SBC. What does have a basis, however, is checks that "do not have border control as an objective" (art. 21(a)(i) SBC) for "the exercise of police powers" (art. 21(a) SBC).

And this is what the reports were talking about last year: using these cameras in order to detect cars travelling into and out of the country in a pattern that would indicate the smuggling of drugs or people. And that is how the Dutch government should have defended this measure: They should have had Minister Opstelten, the Justice Minister, talk about how they were going to catch drug dealers with these cameras. Stopping drug smugglers always gets the Eurocrats excited (see AG Bot's opinion in the Josemans case). There's no chance that the European Commission would tell the Dutch government to stop doing something that might arguably catch drug runners. But in order to get away with that defence, you have to avoid mentioning immigration. Seriously, don't talk about it, ever. Don't even let any of Minister Leers's people in the same room as that letter to the Commission. Ever. No matter what anybody says, just insist that it's legitimate law enforcement, not an immigration matter.