The Schengen acquis and the EU Candidate Countries

Monica den Boer argues in favour of the necessity of granting flexibility to applicant countries to meetthe Schengen arena conditions for accession.

At the Amsterdam summit in 1997, it was agreed to integrate the Schengen acquis into the Treaty on European Union (TEU). This brought a provisional end to a dual legal, institutional and political trajectory. The Schengen framework, which consists of 13 EU Member States minus the UK and Ireland, included various measures meant to compensate for the security deficit resulting from the abolition of internal border controls, such as visa arrangements, asylum policy, external border control, electronic information exchange and police and justice co-operation in criminal matters.

The Schengen process

The incorporation of the Schengen acquis into the TEU was accompanied by a partial communitarisation process, in which some elements of the previous Title VI were lifted to Title IV of the TEU. This Title, entitled “Visas, Asylum, Immigration and other Policies related to the Free Movement of People”, forms an integral part of the progressive establishment of an area of freedom, security and justice. As the title suggests, measures pertaining to the abolition of internal border controls, external borders, visa policy, asylum, refugees, immigration policy, legally resident third country nationals, and judicial co-operation in civil matters now form part of EC law.

Schengen was originally launched as a temporary initiative to test a common framework of internal security control. This framework should then gradually expand to the whole European Community. A first Schengen Agreement was signed in 1985 between France, Germany and the Benelux countries. After several debates about the newly arising security situation following the unification between East and West Germany, the Schengen Implementing Convention (SIC) was signed five years later. It took another five years until Schengen entered into force on 26 March 1995. Since then, Austria, Sweden and Finland have acceded to Schengen. Due to their status as Associated Partners, Norway and Iceland have effectively implemented Schengen as of 25 March 2001, together with Denmark, Finland and Sweden. Meanwhile, the Council has made a positive decision about partial participation of the UK in Schengen, and Ireland has submitted its application.

The Schengen Agreement and the SIC are the chief elements of the “Schengen acquis”, which further consists of Accession Protocols and Agreements, and numerous decisions and declarations adopted by the Schengen Executive Committee and the Central Group. As far as EU-enlargement is concerned, it has been made clear that the Schengen acquis must be accepted in full by all States which are candidates for admission (Article 8, Protocol integrating the Schengen Acquis into the Framework of the European Union).

This is usually interpreted to mean that the candidate countries, unlike the United Kingdom and Ireland, cannot be allowed partial participation in the provisions of the Schengen acquis. Hence, no transitory periods in the field of Justice and Home Affairs are in principle allowed for the new Member States, as they are required to fulfil the requirements of the acquis at the moment of their accession. Specific rules concerning the implementation and abolition of the internal border controls are regulated in the Accession Treaties.

The “big bang” scenario

The effective implementation of the requirements of the acquis will be verified before the completion of the relevant Accession Treaty negotiations or at the latest before the ratification of the Accession Treaty concerned. This may be regarded as the formal EU-position at the moment, and is more popularly characterised as (an integral part of) the “big-bang-scenario.” The main reason for this insistence on simultaneous acce ssion is that regulatory and procedural alignment between candidate countries is less costly, time-consuming, technically awkward and politically sensitive than the choice for a flexible path.

This formal expectation is subject to a rather contentious debate. First of all, various authors have expressed misgivings about the comparatively privileged position that was granted to the UK and Ireland, who are allowed a partial opt-in in the Schengen system without – in principle – abolishing their border checks. In contrast, the candidate countries are requested to implement Schengen in full. Other misgivings relate in particular to the fact that the insistence on simultaneous implementation of Schengen by candidate countries might put longstanding historical, cultural and economic relations between them under strain. In addition, there is the sensitivity of a new ‘hard border’ being created between the EU and neighbouring countries in East Europe.

Meeting the Schengen requirements

Moreover, there is the more pertinent and pragmatic question of whether the candidate countries will actually be able to satisfy the relevant requirements in time. Certain issues are particularly problematic, such as the organisational infrastructure of law enforcement authorities, the technological and organisational infrastructure at the external borders, regulations and provisions in the field of criminal law, and the training of police and legal personnel. Legal and administrative mechanisms will have to be given the capacity to control organised crime, money laundering, terrorism and illegal immigration, and are under pressure to tackle corruption within their own membranes. Finally, the candidate countries are not only faced with the challenge to complete normative alignment with the JHA and Schengen acquis, but they are also faced with a rapidly developing acquis and with shifting crime patterns. However, the volume of the acquis and its rapid evolution may not be the most significant problem for candidate countries.

The basic procedure which was proposed in the Common Negotiation Position (CP) indicates that candidates will first join the EU and that they will not start to fully apply the Schengen acquis on border controls until afterwards. This creates the need for further definition of those requirements that must be met before joining the EU, and those that can wait until full application of the Schengen acquis. Otherwise, there will be a very real risk of having a long-term ‘grey zone’ between accession and full application of the Schengen acquis, ‘resulting in insufficient border security and certainly not leading to unified border management at the EU’s external borders.’

Other areas of attention include: the need for a more clear definition of ‘a high level of external border control upon accession’; the quality of the border controls between two candidate countries, which is relevant if one of them joins the EU earlier than the other; practical implementation of visa and asylum rules should be improved; alignment of visa policy should be achieved before accession and training and a transition period would be required for some countries; there is no practice of expulsion to remote countries as readmission traditionally tends to be undertaken with the neighbouring country; the monitoring of practical application of organisational change within the law enforcement authorities and the preparation of staff (needed for continued training); the protection of (sensitive data) and the integrity of law enforcement personnel; reinforced training requirements concerning economic crime, computer crime and other forms of information technology crime; practical implementation of Europol requirements and installation of liaison officers; and the establishment of an independent, reliable and efficient judiciary.

Variable speeds

In accordance with the guidelines for the negotiations approved by the Luxemb ourg European Council (1997) and confirmed by the Helsinki European Council (1999), each candidate proceeds at its own speed, depending on its degree of preparedness. Each candidate is assessed on its own merits and will join the EU when it is able to meet the obligations of membership. Moreover, heading towards the end of the enlargement negotiations, transitional measures are allowed – but only in well-justified cases – whereby the application or part of the acquis is delayed for a specific period.

A recent illustration of this differentiation strategy relates to the tackling of the free movement of persons. After Austria and Germany exercised heavy pressure to impose labour restrictions on neighbouring ex-communist states in Central and East Europe, Hungary accepted a transitional phase of two to seven years before the EU borders will be opened up for Hungarian workers. Likewise, Hungary obtained the reciprocal right to impose restrictions on workers from the EU. A multi-speed process has been heralded with the assurances of the Netherlands and Sweden that they will admit Hungarian workers upon Hungary’s accession to the EU. Other Member States are likely to follow. Likewise, the Czech Republic has declared it will be able to implement the acquis by 1 January 2003, with the exception that it would like to be granted a transitional period for the border management of its international airports.

A two-step approach is now under consideration. From recent Schengen precedents, we learn that a distinction was drawn between the signature of the Schengen Agreements themselves on the one hand and the full application of “Schengen” obligations on the other hand. In the past, this two-step procedure has also applied to Greece and the Nordic countries after the integration of the Schengen acquis into the framework of the EU. This transitional period allows the performance of evaluations on the quality of border management and other internal security measures. The procedure entails a temporary transitional derogation of EC/EU law, which resembles the other transitional clauses negotiated in the context of accession. Although Article 8 of the Schengen Protocol seems to deny partial participation to new member states, it is not uncommon for accession agreements to set specific deadlines to any transitional periods granted.

The possible distinction between accession to the European Union and the putting into effect of the provisions of the Schengen acquis is partly related to the obligation to postpone the connection between the Schengen Information System (SIS) and the national information system (national databases, networks, equipment, etc.). This connection can only be made secure if there is a substantial amount of technical and financial co-operation, mutual knowledge and recognition of each other’s legal provisions, and reciprocal trust. In other words, full participation in SIS counts as a prerequisite for the lifting of internal border controls, the proper execution of external border controls, and thus for realising free movement of persons within the “Schengen” area.

The applicant countries will almost certainly implement the Schengen acquis at variable speeds. This may result in the introduction of temporary “external border” controls between the candidate countries themselves. Such a scenario does not look unrealistic, knowing that during the next five to ten years, the border between Germany and Poland will be guarded as if it were an external border, even after Poland’s accession to the EU. Meanwhile, a great deal of work will be invested in the qualitative aspects of border control, with a shift of focus to countries of origin and transit. Granting flexibility to applicant states in the Schengen/JHA arena will most definitely contribute to forging more symmetry between the current and future member states of the EU, to the extent that flexibility has become a celebrated model of integration in the progressive establishment of the EU Area of Freedom, Security and Justice.

Dr Monica den Boer is Associate Professor Public Administration at CRBI, Tilburg University

For more in-depth analysis, see The European Policy Centre’s Challenge Europe:

Building an area of freedom, security and justice.