Last year, the Council of the European Union adopted a decision requiring Austria to implement Schengen law and address shortcomings identified by the European Commission in its 2020 evaluation report on compliance with return rules, which showed that the authorities in Vienna had major problems with border management.

Although Austrian Chancellor Karl Nehhammer has repeatedly emphasized that the extension of the Schengen area is not possible due to the problems that Romania has with regard to the large number of migrants who will arrive in Austria without being registered in our country, the Council of the European Union requests Through Vienna – December 19, 2022, in 11 days after the meeting of the JAI Council, a decision was made to eliminate the shortcomings identified by the European Commission in the assessment report carried out in 2020 on compliance with the Schengen legislation on return, reports MEP Eugene. Tomak.

According to the recommendations of the European Forum, Austria should amend national legislation and transpose a directive on the entry and return of migrants to address the problems, which were pointed out as far back as 2020, when Karl Nehammer was interior minister.

• “At least five articles of Directive 2008/115/EC must be implemented in Austrian law on entry and return, aspects that represent serious shortcomings in the implementation of European legislation on migration management.
• In conclusion, this document demonstrates as clearly and unequivocally as possible that Austria has not adapted its domestic legislation to effectively manage migration, a fact that the European Commission noted back in 2020.
• Therefore, all accusations against Romania were based on a false thesis. The problem of immigrants from Austria is actually a long-standing internal problem, not a recent one opened by Nehhammer, who before becoming chancellor was the minister of the interior and had the obligation to bring his domestic legislation into line with the European one,” said Eugen Tomak. .

The document of the Council of the European Union is another piece of evidence in case Romania appeals to the Court of Justice of the European Union against the vote of the Council of the European Union on December 8, 2022, Tomac also states. .

Austria has two months from the date of the decision to draw up an action plan to implement all recommendations to address any deficiencies identified in the assessment report and submit this plan to the Commission and the Council.

Recommendations of the Council of the European Union for Austria:

Return procedures

• 1. to provide in all return decisions issued for illegally staying third-country nationals, the obligation to leave the territory of all Schengen Agreement states in order to reach a specific third country, in accordance with Article 3, paragraphs 3 and 4 of Directive 2008/115/EC; take measures to ensure compliance with the principle of non-refoulement in cases where the third country of return was not specified in the decision on return due to the impossibility of identifying it in accordance with national legislation or national legal practice;
• 2. to make changes to the national legislation in order to correctly transpose clause 3 of article 3 of Directive 2008/115/EC;

Procedural guarantees

• 3. to amend the national legislation in such a way as to challenge the return decision if the decision exposes the third-country national to a real risk of being subjected to treatment contrary to Article 3 of the European Convention on Human Rights or Article 4 of the Charter of Fundamental Rights of the EU have a suspensive effect at least until those until the court decides whether to give the appeal a suspensive effect;

Entry bans

• 4. amend the national legislation regarding the duration of the entry ban to bring the legislation into line with the provisions of Directive 2008/115/EU;
• 5. amend domestic legislation to ensure that entry bans are issued in accordance with Article 11(1) of Directive 2008/115/EC;

Detention

• 6. take measures to improve detention conditions in detention centers by ensuring that detention centers are designed to reflect the nature of detention, that third-country nationals are generally held in open public places of detention, that a wider range of organized entertainment activities are offered more frequently and all rooms and common areas are properly equipped and in good condition;
• 7. take the necessary measures to allow visits to the Police Detention Center Rossauer-Lande and the Police Detention Center Hernalser-Gürtel in an environment that respects the right to private and family life;
• 8. Ensure that minors in custody are, in all circumstances, separated from unrelated adults, amend relevant national legislation so that the obligation to provide age-appropriate housing and care also extended to minors over the age of 16, and to coordinate the practice accordingly;
• 9. ensure that an individual assessment is carried out before making a decision on the use of a personal search and consider the possibility of using less intrusive methods;

Forced returns

• 10. take measures to improve the effectiveness of the forced return monitoring system, including by monitoring forced return carried out by regular flights, and by expanding the scope of monitoring activities at all stages of the forced return operation.

Austria’s arguments against Romania’s accession to Schengen

After the JAI vote on 8 December, both Austrian Chancellor Karl Nehhammer and Interior Minister Gerhard Karner claimed that of the more than 100,000 immigrants or asylum seekers who arrived in Austria, 75,000 were not registered anywhere, and this must have happened when crossing Austria. external border of the EU. They claimed that many of the unregistered arrived via Romania or Bulgaria, contradicting the Romanian authorities.

• “Romania and Bulgaria have different indicators. These countries wouldn’t even know the real numbers if they didn’t register people,” Nehhammer explained of the discrepancy between the data on migrants provided by the Austrian government and the authorities in Bucharest and Sofia.

In an interview with a public TV channel, he emphasized that lifting the veto will be possible only when Romania and Bulgaria improve border protection.

When asked why Austria did not choose the usual path in the EU, namely to seek allies among other states and thus achieve change, Nehhammer replied that no other country has – in proportion to the number of its population – as much migratory pressure as Austria. The Netherlands also tried for a long time to find support in the Council of the EU, but without success, and “in other EU countries, the problem was simply perceived differently than in Austria.” Since the European Commission did not act, it was necessary to act “resolutely” and at the national level, the chancellor claimed.

“Austrian police investigated it”

And at the meeting of the European Council on December 15 in Brussels, Austrian Chancellor Karl Nehammer continued to support the thesis that a large number of migrants will arrive in Austria without being registered in Romania.

Responding in Brussels to a question about Austria’s refusal to admit Romania to Schengen, Karl Nehammer repeated the thesis about the “huge” number of migrants who arrived in Austria this year – 100,000, of which 75,000 were not registered by other states through which they passed . :

• “Austria’s position is that we should support Bulgaria and Romania. This is not a problem of countries against other countries, it is a security problem.
• We have more than 75,000 unregistered people in Austria and we know that 20,000 illegal migrants are crossing Romania. We know this as a result of the investigation conducted by the Austrian police. Now we have to find a solution to this problem.”

To the journalist’s remark that these figures are denied by the Romanian authorities, the Chancellor of Austria replied:

• “But you know that the Romanian police have a record of these people who are registered in Romania.
• In Austria, we have registered more than 100,000 migrants, and 75,000 of them are not registered. This is a huge number.
• This is a security issue for the entire European Union.
• This is a problem, and it must be said that it is not about being against Austria, Bulgaria or Romania. We have to solve this security problem together, and I think we will.”