Prof Dr Jaap W. de Zwaan*
Schengen was launched in the eighties and nineties of the last century as a contribution to a Citizens’ Europe. These days, however, the Schengen discussion is rather connected to security in Europe: notably migration, foreign policy, defence, combat of international crime and, since recently, also public health (Corona virus!).
Schengen is an example of differentiated cooperation. Participation is conditional: only when specific conditions are fulfilled, a country can accede. In principle, Schengen is open to all member states of the European Union (EU). However, not all of them do participate. Whereas Ireland (like the UK in the past) has been granted a derogation to participate, other member states (Romania, Bulgaria, Cyprus and Croatia) have not as yet been admitted (the reason being that those countries, according to some member states, have not as yet fully complied with the relevant obligations).
A number of third countries also do participate: Norway, Iceland, Liechtenstein and Switzerland. Norway, Iceland and Liechtenstein are partners of the EU within the European Economic Area (EEA) framework. All four participate – by means of special arrangements - in the EU internal market and Schengen cooperation.
The Schengen objectives at the time aimed to abolish internal border controls, establish a common system of external controls, start the development of a common visa policy as well as a common asylum and immigration policy.
Schengen was originally the subject matter of purely intergovernmental cooperation. At the time – mid-eighties - it was (politically) impossible to develop this domain of cooperation within the European Economic Community (EEC) framework. The argument being that in particular internal border controls (passport controls, controls of luggage and controls of animals) were covered by purely national competences, so, not by the competences of the then EEC.
Another phenomenon was that originally only a small number of member states were involved in the cooperation: Germany, France and the three Benelux countries. Later on many more member states acceded. The UK and Ireland never acceded: they practised, already for decades, a similar but bilateral system, the so-called Common Travel Area (CTA).
At the time Schengen was criticised as a form of ‘backroom’ politics, lacking transparency and a proper parliamentary control and judicial protection system. For those reasons it was not easy to have the Implementing Agreement 1991 approved by all national parliaments involved.
On the occasion of the entry of the Amsterdam Treaty into force in May 19999, the Schengen cooperation (essentially the reference as to substance was to the Implementing Schengen Convention of 1991) was integrated in the acquis of the European Union. That process is referred to as ‘Communitarization’.
At the time the UK, Ireland and Denmark were granted derogations to participate. The UK and Ireland because of –as already recalled – the so-called Common Travel Area (CTA), that is in place between the two countries already since decades. Denmark claimed a derogation essentially because of political reasons.
After the integration, the Schengen decision making modalities have been developed ‘step by step’. The so far final arrangements of the Schengen cooperation were introduced in the Lisbon Treaty, entered into force on 1 December 2009. On that occasion Schengen became a subject matter covered by the so-called Area of Freedom, Security and Justice (Part Three, Title V TFEU).
SCHENGEN AND INTERNAL MARKET
Since the Schengen acquis has been fully integrated in the one of the Union, Schengen is often looked at – for example by businesses and the public - as a vital element of the internal market cooperation.
However, although Schengen in substance is certainly linked to the internal market, it is not an inherent element of that domain of cooperation. Because legally speaking, the internal market concept (only) foresees ac free movement of all economic factors (goods, persons, services and capital: see Article 26(2) TFEU), however, leaving intact the principle of internal border controls of persons. So, strictly speaking Schengen is only additional in nature.
This finding is illustrated by the fact that both issues are included in different places in the treaties:
- Article 26 TFEU : internal market (Part Three, Title I, TFEU)
- Article 77 TFEU: policy on border checks (Part Three, Title V, TFEU)
It also means that, whereas the internal market represents a framework of cooperation where participation by all member states is in fact obligatory, Schengen lends itself –although that obviously is not the most preferred option- to practise a system of differentiated cooperation. And, that is what in practice has actually happened.
A UNIQUE SYSTEM
Schengen is a system, unique of its kind. The abolishment of passport controls at the internal borders has been originally looked at as a fine contribution to a Citizens’ Europe.
In practice the working of Schengen has been tested more particularly in the context of the Migration crisis of 2015/2016. In that respect, especially the practices in the Mediterranean were of importance.
The main conclusion is that we – the EU and its member states - were not prepared to deal with the (huge) numbers of migrants coming to Europe. We didn’t provide enough immigration officers and an adequate infrastructure plus sufficient equipment was not available. As a consequence, the Schengen system failed.
Also the Dublin system (designating the member state responsible to examine applications for asylum) collapsed. Although the legislation as such was in order (the selection of criteria and their order of application), the regulation was never applied in a correct manner.
As a result, it has not been possible to survey the external borders, especially in the Mediterranean, in an appropriate manner. Several member states took unilateral decisions: they ‘waved’ migrants through, built fences or closed their land borders, permanently or temporarily.
During the crisis there has not been sufficient, if any at all, coordination at the EU level of national policies and practices. Also, the role of Frontex respectively the European Border and Coast Guard (EBCG) – they essentially (only) ‘support’ the responsible member states in their efforts - has not been adequate.
TEMPORARY REINTRODUCTION OF INTERNAL BORDER CONTROLS
In light of the experiences in connection with the migration crisis of 2015/2016, some options to reintroduce temporary internal border controls have been agreed by the Council and the European Parliament on 9 March 2016 (Regulation 2016/399). The options are threefold: foreseeable cases (Article 25 and 26: sport events for example); cases requiring immediate action (Article 28: combat of terrorism for example); and cases where exceptional circumstances put the overall functioning of the Schengen area at risk (Article 29: see the precedent of the migration crisis).
The first option requires prior notification to the Commission and the other member states; the second obliges the member state(s) concerned to immediately inform the Commission and the other member states; and according to the third the Council, upon a proposal from the Commission, may recommend that one or more member states decide to reintroduce border control.
Because of the (consequences of the) chaos arisen in 2015/2016, these prescriptions have not always been respected in practice, also not in more recent times when similar developments occurred. Probably new problems will arise when the Corona virus problems will get serious proportions.
SUSTAINABILITY OF SCHENGEN
These days the discussion about the future of the Schengen cooperation cannot be looked at in isolation, by focussing purely on the technical aspects of border controls.
On the contrary, the present discussion is rather linked to several security substance matters, such as foreign policy, defence, migration, combat of international crime and public health (Corona virus!). NB. The exceptions of Article 45(3) TFEU (free movement of workers) are related to public policy, public security and public health.
These kinds of common interests have to be dealt with commonly.
Internal border control can only be abolished if the system of external border control is adequately organised and implemented. However, external border controls are difficult to execute, especially when many people present themselves at the same time at the external borders, like happened during the crisis of 2015/2016, and still happens often. In that context immigration officers as a rule also are confronted with different categories of migrants: asylum seekers, economic migrants, illegal migrants and perpetrators of crime (human trafficking for example). On top of that, a sea as an external border – like the Mediterranean- obviously has its own characteristics.
To that extent migration is an area to be distinguished, for example, from the common commercial policy domain – an area where the EU holds exclusive competences - where member states in principle ‘only’ have to apply common rules regarding tariffs, quotas and regulatory prescriptions on trade movements.
Whereas notably the Commission has undertaken several initiatives to restore the coherence of the Schengen system (see for example the Communication Back to Schengen, a Roadmap, COM(2016)120 final of 4 March 2016), so far these efforts have remained without much follow-up.
If we want to keep the Schengen system intact, necessarily more centralised guidance and management (by the Brussels infrastructure) will be needed. The focus must notably be on the adequacy of the external border controls.
Essentially these responsibilities are better to be assigned to a single EU agency. At least responsibilities cannot be laid mainly on the shoulders of the authorities of the most involved member states, like Greece and Italy in the case of the influx of migrants coming from the Middle East, Asia and Africa. Alternatively, the responsibilities as they are organised at present, should at least be reversed: the European Border and Coast Guard (EBCG) as the primary responsible authority, whereas the member states concerned do ‘support’.
Necessarily, such a different, but more effective, approach also requires sufficient financial resources to be made available at the EU level, in order to finance the necessary human capacity, infrastructure and technical equipment. When money has to be allocated (see the linkage with the Multiannual Financial Framework negotiations!), interests have to be weighed in a correct and realistic manner. In that regard an adequate protection of our external borders represents a crucial common interest.
SCHENGEN AS AN EXAMPLE OF DIFFERENTIATED COOPERATION
Schengen serves crucially, but also complicated and politically sensitive, security interests of the EU and the member states. In fact, the dependence, of member states, on the way external borders are controlled (by the ‘responsible’ member states), has become a crucial weakness of the system. In view of these characteristics, it is hardly conceivable to ‘copy’ a system like Schengen, the way it is organised these days, to other policy domains.
*Prof Dr Jaap W. de Zwaan is Emeritus Professor of the Law of the European Union, Erasmus School of Law, Erasmus University Rotterdam, and former Director of the Netherlands Institute of International Relations ‘Clingendael’ in The Hague, The Netherlands, Email: [email protected]
This presentation was delivered during the roundtable “Europe on the Move: Open or Closed Borders?” held in the premises of GLOBSEC in Slovakia on 2-3 March 2020 and is published within GLOSBEC DIFF GOV — „European Governance: Potential of Differentiated Cooperation“ project supported by Jean Monnet Activities of the EU Programme Erasmus+.
The views expressed in this article are the author’s own and do not necessarily reflect GLOBSEC’s policy.
The European Commission support for the production of this publication does not constitute an endorsement of the contents. which reflects the views only of the authors, and the Commission cannot be held responsible for any use which may be made of the information contained therein.