Upload
nuhister
View
303
Download
1
Embed Size (px)
Citation preview
Mr. Nuhi Shala
THE SCHENGEN AGREEMENT
INTRODUCTION
Signed in 1985 by France, Germany, Belgium, Luxembourg, and
the Netherlands, the Schengen Agreement had a significant impact on the
integration of the European Community/European Union, particularly by
providing for the gradual abolishment of border controls to facilitate the free
movement of persons within the “Schengenland,” i.e. the area of the states
participating in the Schengen Agreement. Initially an intergovernmental
agreement, later it was incorporated into the E.U.’s framework under the
Amsterdam Treaty. Now the Schengen acquis, consisting of the set of rules of
all the agreements, conventions, accession protocols, decisions and
declarations accepted by the Schengen bodies, has become an integral part
of 15 countries, two of which are non-E.U. states. It allows people, who reside
or visit any of these 15 countries, to freely travel and move within each
other’s internal borders. This thesis’ main purpose is to explore the major
factors and people who initiated and influenced the acceleration of removing
the border and customs controls. Also, the thesis will describe the political
and economic implications of the consequent development of the Schengen
Agreement.
THE ORIGINS OF SCHENGEN
Early Attempts to Establish a “Free Movement of Persons” Area
The initial idea of “free movement of persons” came into being in
the 1950s; particularly, in March 1957, when the Treaty of Rome established
the European Economic Community (EEC). The six countries – Belgium,
France, Germany (FRG), Italy, Luxembourg, and the Netherlands –which
1
were also the signatories of the European Coal and Steel Community (ECSC),
set an objective to create a common market, where free movement of factors,
such as labor and capital, is the main requisite. Article 48 of the Treaty of
Rome stated: Freedom of movement for workers shall be secured within the
Community by the end of the transitional period at the latest.
THE SCHENGEN AGREEMENT
On June 14, 1985, the Benelux states along with France and
Germany signed the Schengen Agreement, which provided for the gradual
abolishment of internal border controls among the aforementioned countries.
It was called the Schengen Agreement because it was signed in Schengen, a
small town in Luxembourg. The actual signing of the Schengen agreement
was held “on a boat in the middle of the Moselle river, which forms the
border between Luxembourg and Germany” (BBCNews, “Q&A:Schengen
Agreement”).
P. De Keersmaeker (Staatssecretaris voor Europese Zaken), Prof. Dr. W.
Schreckenberger (Staatssekretär im Bunderskansleramt), C. Lalumière
(Secrétaire d’Etat aux Affaires européennes), R. Goebbels (Secrétaire d’Etat
aux Affaires étrangères), and W. F. van Eekelen (Staatssecretaris van
Buitenlandse Zaken) represented Belgium, Germany, France, Luxembourg,
and the Netherlands respectively when signing the Schengen Agreement
(Europa:EURlex, “The Schengen Acquis”). Hence, the Schengen Group was
formed. The Schengen Agreement between the Governments of the States of
the Benelux Economic Union, the Federal Republic of Germany and the
French Republic consisted of two titles and thirty-three articles. Title I of the
agreement discussed “measures applicable in the short term” (Article 1-16),
and Title II –“measures applicable in the long term” (Article 17-33)
(Europa:EURlex, “The Schengen Acquis”).
According to Article 30 of the Schengen Agreement, the
elimination of border checks (i.e. the implementation of measures provided in
Title II of the agreement) was aimed to be achieved by January 1, 1990. Also,
the agreement arranged for: … working groups to deal with ‘compensatory
2
measures’ in policing and security (narcotics, arms, border controls and
security, information exchange, threats to public order and state security);
movement of people (asylum, border controls, visa controls, exchange of
information, a common deportation fund); transport (including lists of
passengers carried across borders); and customs and circulation of goods.
Only the Netherlands ratified (without any parliamentary debate)
the Schengen Agreement; and the rest regarded it “as being only a
declaration of intent, and did not submit it for parliamentary ratification”.
One might wonder what the structure of the agreement was an
intergovernmental agreement, meaning that it was concluded among the
states outside the EC framework and its deliberations were not dependent on
the consideration of the European Parliament. However, right from the
outset, the Commission of the EC had taken part “as an observer, in the
ministerial meetings of Schengen”. This intergovernmental initiative was
recognized positively by the Commission, which saw it as a motivating “force
and a Community test-bed for” eliminating internal border controls on
individuals. As mentioned previously, at this stage countries participating in
Schengen cooperation deemed intergovernmentalism (i.e. the
intergovernmental structure of Schengen cooperation) best suited to issues
related to “free movement of persons,” since it offered greater control and
autonomy over such sensitive matters. The explanation of the implementation
of the intergovernmental agreement was also mainly due to the fact that
during the 1980s, the debate concerning the denotation of “free movement of
persons” took place. The split between the Member States was about
whether the movement would apply strictly to EU citizens, that is the non-
removal of border checks so as “to distinguish between citizens of the EU and
non-EU nationals,” or approve the movement for everyone, i.e. abolish
internal border inspections completely. Being unable to achieve an
agreement within the Community, the five states concluded the
intergovernmental agreement, and indirectly, undertook a step forward in the
integration and acceleration of the establishment of a “free movement of
persons” area. Sufficient to note, at the Community level, the Commission
deemed that the measures needed for the abolition of border checks on
3
individuals would be prepared by intergovernmental bodies, implying not by
Community institutions. Another version of why an intergovernmental
agreement was created because EC Member States did not wish the
European Commission to manage asylum and immigration by placing these
matters into Community legislation. Although Member States had agreed to
give up their sovereignty in issues related to the establishment of a single
market and freedom of movement within the Community for EU citizens, they
had not been willing to pass immigration-related issues to the Community
legislature. So in 1985, when the Commission tried to arrange a
communication and consultation procedure on migration policies of the
Twelve, it was opposed by Germany, France, the Netherlands, the UK, and
Denmark in the European Court of Justice.
THE IMPLEMENTATION OF SCHENGEN
Today the “Schengenland” consists of fifteen states, which fully
participate in the Schengen cooperation. There are also countries that
partially participate in Schengen. Moreover, there are states that are going
to implement the Schengen acquis fully as soon as they satisfy all the
requirements and put into practice all the measures necessary for the
abolition of border controls. As it is seen, the “Schengenland” is expanding.
Although it takes some time for countries joining the Schengen cooperation
to actually implement the Schengen acquis, they eventually fully participate
and benefit from the cooperation. There were only seven states when the
border checks were abolished initially in 1995.
The first tier of states that began participating wholly in the Schengen
cooperation consisted of Belgium, France, Germany, Luxembourg, the
Netherlands, Portugal and Spain. As of today the “Schengenland” includes
Austria, Belgium, Denmark, Finland, France, Germany, Greece, Iceland, Italy,
Luxembourg, the Netherlands, Norway, Portugal, Spain, and Sweden.
4
Western Europe: France, Germany, Belgium, the Netherlands, Luxembourg,Switzerland, and Liechtenstein
Germany, France, and the Benelux countries are the five initial
signatories of the Schengen Agreement. When they signed the agreement in
1985, they aimed to abolish border controls by January, 1990.
Germany was one of the most interested states in the Schengen
cooperation. In order to comply with the decrees of Schengen, it had to
amend its Constitution. Before the unification of West Germany with East
Germany in 1989, Schengen signatory states debated whether East Germany
would be in the Schengen zone. And in 1990, when the Schengen Convention
was signed, it was decided that East Germany would participate in the
frontier-free zone, whereas its external frontiers would be tightened and visa
requirements would match West Germany’s (“Schengen Agreement: Jeux”).
France was also one of the initiators of the Schengen cooperation.
However, ratification of the Schengen Convention was questioned in French
Parliament, since Schengen was of a supranational scope, and therefore, seen
as “politically risky.” In 1993, it was decided that July 1 and December 1,
1993 would be deadlines for lifting border controls at common land borders
and airports, respectively, among Schengen states. However, France refused
to abolish border checks, and therefore the deadline was missed. The main
reason of France’s unwillingness to implement the Schengen Convention was
due to “'inadequacy' of policies against drug trafficking in the Netherlands
and the 'incapacity' of Italy and Greece to control their borders” (“Schengen:
France”)Later, five Schengen countries (Germany, the Benelux states, and
Spain) were ready to implement the Schengen Convention entirely on
February 1, 1994. France was supposed to join them but it had to postpone
since it was waiting for the “final internal agreement on the legal effect of the
Schengen Accords on the French constitution” to be reached (“Keeping up
with” 940). Although, France had started to implement the Schengen
Convention in March, 1995, along with the other six signatory states, on June
29, 1995, it decided to reintroduce border checks because of “difficulties in
controlling illegal immigration and the movement of drugs, especially at its
5
Benelux borders”. France reintroduced temporary border controls several
times due to security concerns.
Belgium, Luxembourg, and the Netherlands were also
initiators of the Schengen cooperation. It is said that the Schengen
cooperation was modeled on the Benelux Agreement of April 11, 1960, which
provided for the elimination of border controls on persons crossing the
common borders of Benelux countries and standardization of their visa
policies.
Austria joined the Schengen cooperation later. It signed the
Schengen Convention on April 28, 1995. Bordering with eight countries,
Austria was contiguous only to two Schengen Member states (Germany and
Italy) by the time it joined the Schengen cooperation. Germany had criticized
Austria for not controlling its borders thoroughly to prevent illegal
immigration from Eastern Europe. In response, Austria spent $2 million to
reinforce “surveillance of borders” . Finally, the Schengen Executive
Committee decided that Austria would be integrated into the Schengen
cooperation fully step by step, beginning from December 1, 1997 (passport
controls would be lifted on air travel) to April 1, 1998. On March 29, 1998
Austria completed its phased implementation fully (Van de Rijt).
Switzerland, a non-EU state, will soon fully participate in the
Schengen cooperation. The participation of Switzerland in the Schengen
acquis will increase its security and cooperation in matters related to
organized crime. Moreover, it will expand free movement of person’s area,
and will grant Switzerland an opportunity to participate closely in the
internal market of the EU. Its initial interest in Schengen was observed in
1998.
Southern Europe: Italy, Spain, Portugal, and Greece
For some of the Southern European countries it took a relatively
long time to establish an area of free circulation of persons. For others,
however, it took a relatively short period of time to abolish border controls
and become a full participant of the Schengen cooperation. The differences in
6
the geographical position and other political economic issues were the
primary causes of delays in fully implementing the Schengen arrangements.
Italy was the first among Southern European states to join the Schengen
cooperation. It signed the Schengen Convention on November 27, 1990 in
Paris. For Italy, a member of the European Community, it was obviously
advantageous to participate in the Schengen cooperation, since it embodied a
step forward to fulfilling one of the four fundamental freedoms – free
movement of persons – of the Single Market. Italy ratified the Convention on
September 30, 1993 (“Visa system”)
Almost a year later, Spain along with Portugal signed the Schengen
Convention on June 25, 1991 in Bonn. The Convention went into force on
March 1, 1994, for both countries. Members of the European Community at
that time, Spain and Portugal joined the Schengen cooperation for the same
reason as Italy did. It took almost four years for Spain and Portugal to fully
implement the Schengen Convention. The border controls were abolished
along with initial signatories of the Schengen Agreement on March 26, 1995.
Another southern state, Greece, started to hold observer status
from November 5, 1991, and a year later – on November 6, 1992 – signed the
Schengen Convention in Madrid. Political and technical impediments
inhibited Greece from joining the Schengen cooperation fully for almost 8
years
Nordic States: Finland, Denmark, Iceland, Norway, and Sweden
In February 1995, the heads of Nordic states decided to initiate
cooperation with Schengen. After negotiations, they were granted an
observer status beginning from May 1, 1996. And on December 19, 1996, the
Agreement on the Accession of the Kingdom of Denmark, the Republic of
Finland, and the Kingdom of Sweden to the Schengen Convention as well as
the Cooperation Agreement between Iceland, Norway and the Schengen
signatory states were signed in Luxembourg. This allowed the five states to
maintain their Nordic Passport Union and participate in the Schengen
cooperation.
7
The United Kingdom and Ireland
The United Kingdom and Ireland are not participating in the
Schengen cooperation fully. The United Kingdom argues that its island
geography makes its frontier controls more efficient than those of its EU
partners. In March 1999, the United Kingdom requested to participate in
Schengen partially, particularly in matters related to police cooperation,
mutual assistance in criminal matters, application of the non bis in idem
principle, extradition and transfer of the enforcement of criminal judgments,
narcotic drugs, the Schengen Information System, and protection of personal
data (“Select Committee”). The request was approved on May 29, 2000.
In June 2000, the Republic of Ireland also asked to partake in the
matters of the Schengen cooperation almost identical to the UK’s request.
The application was approved on February 28, 2002. The Commission pointed
out that the participation of the UK and Ireland “should not have the effect of
reducing the consistency of the acquis as a whole” (“The Schengen Acquis”).
As of today, the UK participates in police and judicial cooperation only.
The 10 New EU Member States: Cyprus, the Czech Republic, Estonia, Hungary,
Latvia, Lithuania, Malta, Poland, Slovakia, and Slovenia
When the 10 new Member States joined the EU on May 1, 2004,
they agreed to accept the Schengen acquis fully. It is imperative to mention
that every applicant to the EU has to fully accept the Schengen acquis and its
following development. Currently, the new Member States are not
participating in the “Schengenland,” i.e. they have not abolished border
controls yet. They are expected to join the Schengen zone in October of 2007,
or by the time when all the necessary measures are set up. The EU Council
will decide unanimously whether any new member states can join the
Schengen area. Every new Member State is preparing to satisfy the
Schengen requirements. By the summer of 2007, the EU is supposed to
8
affirm which of the 10 new EU states are prepared to join the
“Schengenland” (“EU experts”).
THE SCHENGEN INFORMATION SYSTEM (SIS)
When the Schengen Convention was concluded (1990), the
establishment of the Schengen Information System was agreed (“Article
92”). The SIS is an information network that was set up to allow all border
posts, police stations and consular agents from the Schengen Member States
to access data on specific individuals or on vehicles or objects which have
been lost or stolen. In other words, the SIS database contains data on
criminals wanted for arrest or extradition, missing persons or persons
requiring temporary police protection, third-country nationals who are not
allowed to enter the “Schengenland,” and lost or stolen goods (“Abolition of
internal”). The goal of the SIS is to increase police and judicial cooperation
with regard to “criminal matters, visa policy, immigration and free movement
of persons”. In all fifteen Schengen Member States fully participating in the
Schengen cooperation, the SIS is set and utilized. The data stored at the SIS
is collected by the member states via national sections (N-SIS). The N-SIS is
in turn connected to a central technical function (C-SIS), located in
Strasbourg, France. The C-SIS’s task is to check whether all participating
Member States have access to the same information. The significance of the
SIS is illustrated by the fact that the problems with launching an operational
SIS impeded the implementation of the Schengen Convention in 1993 and
1994.
CHANGES AFTER SCHENGEN’S IMPLEMENTATION
In March 1995, the border controls were abolished between seven
Schengen states, meaning that internal border inspections were eliminated.
As of today there are fifteen countries which fully participate in the Schengen
9
cooperation. Since then, there is no need to show a passport and undergo
border checks once one is traveling within the “Schengenland.” For instance,
most airports of the Schengen participating countries are separated by two
terminals for travelers within the Schengen space and for those coming from
outside of the Schengen states. With regard to traveling by train, there is no
need to stop at borders when crossing Schengen states for passport checks;
instead, “inspectors can board the train and examine passengers’ documents
during the journey”. Although there are no border checks within the
“Schengenland,” it is advised to carry a passport or ID card while traveling in
the EU should one have to prove one’s identity (“Documents”). After internal
borders were eliminated, thorough controls were set up at the external
borders of the EU. When leaving or entering the Schengen zone it is required
to have the necessary documents for entry, such as a passport or ID. The free
circulation of people necessitated establishment of so-called compensatory
measures, which include a harmonized visa policy and an upturn of
coordination between the police, customs, and the judiciary in order to
prevent terrorism and organized crime (“Abolition of internal”).
CONCLUSION
Major changes have occurred since the formation of the European
Economic Community in 1957. The willingness of Community member states
to cooperate has deepened integration and led to the realization of most of
the goals set by the Treaty of Rome, Single European Act, Maastricht Treaty,
and Amsterdam Treaty. The creation of the free movement of person’s area is
an example of such successful cooperation and fulfillment of one of the four
freedoms of the common market.
Although the initial cooperation started bilaterally, between France
and Germany, it eventually involved other Community member states. Today
thirteen EU members and two non-EU states participate fully in the
Schengen arrangements. Schengen had been considered as “a laboratory for
intergovernmental cooperation” before it was incorporated into the EU
framework. Moreover, the freedom of movement within the European Union
10
became a fundamental right and is one of the practical benefits of European
integration.
11