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

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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

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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

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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.

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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

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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

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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.

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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

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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

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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

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became a fundamental right and is one of the practical benefits of European

integration.

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