Schengen-Serie II: Schengen – a legal puzzle of Europe

Hungary-Serbia_border_barrier

What exactly do we mean when we talk about “Schengen” and why does it look like it does today? Schengen’s history is full of twists and turns. One thing has remained largely constant, though: the tendency to conceal fundamental political divisions by means of, oftentimes insufficient, legal instruments.

A comment by Simon Blätgen

 

In December 2015 the European Commission adopted a set of reform measures for ‘managing Europe’s external borders and preserving the security of the internal Schengen area of free movement’. The proposal provides a neat occasion for a look back on the emergence of the Schengen system – taken from a legal perspective.

The idea behind the Schengen agreement was as audacious as it was logical in the process of European integration: It was audacious (i.e. politically sensitive) in the sense that the elimination of national border controls among member states touched upon one of the very core elements of national sovereignty. In turn, it was a logical next step in that the execution of the ‘fundamental freedoms’ in the treaties on the European Community (EC) – since Lisbon they are codified in the Treaty on the Functioning of the EU (TFEU) – practically demanded it: The realization of the free movement of both goods and persons was still heavily limited by national borders and the procedures that went hand in hand with them.

From a legal perspective, the way in which the issue was then handled provides an illuminating example for how delicate matters are oftentimes resolved in the European context: Dealing with the issue in the backyard and bringing it (back) in when it’s neat and clean. When the Schengen agreements were signed in 1985 and 1990 respectively, especially Great Britain and Ireland wouldn’t have accepted the agreement to become EC law, thereby making it binding for all member states. Under EU law (before 1993 ‘EC’ law), amending the foundational treaties or even passing regulations can be extremely complicated and is often associated with high political costs: In many crucial areas the treaties demand unanimity among member states and provide for lengthy decision-making processes.

Therefore, adopting the agreement as a treaty under classic public international law was the swifter way out of this conundrum. Here, a group of states (in this case member states of the EC) convenes, agrees upon a certain set of rules, puts it in a treaty which then, in a way, flanks EU law without actually becoming part of it. In more recent European history, comparable developments led to the ‘European Fiscal Compact’ being adopted outside EU law.

Next to facilitating the adoption of an eventual agreement, this practice offers a variety of further advantages: Under public international law it is, for instance, less complicated to grant exceptions to signatory states. By the same token, changing or amending treaties is easier. On the other hand, there are disadvantages involved: The idea behind the establishment of the European legal system was – from its very beginnings in the 1950s – to deepen integration through integrating law. If, every time it proves politically difficult to reach an agreement, a group of member states effectively steps out of the European legal framework, over time this weakens EU law, its legitimacy, its coherence and acceptance as well as its original integrative function.

Thus, it oftentimes remains an integral part of the endeavour to integrate such ‘sideline agreements’ into EU law later on. By means of the 1997 Treaty of Amsterdam, which also entailed reforms strengthening the role of the European Parliament and amending legislative competences, the Schengen agreement became a formal part of EU law. Technically this was done by an additional protocol to the treaty. Both Great Britain and Ireland, though giving up their complete opposition of the 1980s, negotiated opt-outs from large parts of the Schengen ‘acquis’, particularly maintaining the right to conduct national border checks. In turn, EU institutions obtained the competence to develop the Schengen system and the Schengen agreements became part of the so-called “acquis communautaire”, the sum of EU laws in effect. Today, the Schengen agreements constitute a key part of the ‘area of freedom, security and justice’ (AFSJ), the EU’s policies on justice and home affairs.

The effective reconciliation of increased freedoms with the necessary security measures was one of the key promises of the Schengen agreements. The various measures adopted to secure the external borders of the Schengen space are thus inextricably linked to the very purpose of the agreements. The establishment of Frontex (an agency under secondary EU law) in 2004 certainly constitutes the most prominent example for this. Yet, Frontex is also a good illustration for what happens when something is expected from the EU that it has only limited competences and capacities for: Under the pressure of the current ‘refugee crisis’, external border security and the coordination of visa and asylum policies are being criticized as ineffective and insufficient. Member states start to make use of exemption clauses to temporarily take up national border checks again. The Schengen vision of a Europe without borders is at risk.

If now the Commission intends a ‘targeted revision of the Schengen border code’ (a catchy name for several EU regulations coordinating border policies), and to create a European Border and Cost guard, this illustrates some of the conceptual difficulties of the Schengen system: Especially the coast guard idea will likely bring EU legislation at odds with affected member states. The question will therefore be whether there is sufficient political will to take the necessary steps to actually harmonize border policies. The possibility of concealing political disagreement with legal instruments is, just like the Schengen area itself, not exactly unlimited.

 

Das Polis Blog veröffentlicht in den kommenden Wochen zusammen mit Café Babel eine Serie von Beiträgen, die verschiedene Facetten des Schengenraums und der damit verbundenen Vorstellung eines grenzenlosen Europa in den Blick nimmt. Am nächsten Dienstag wird Christian Freudlsperger einen Blick auf Schengens derzeitige politische Krise wagen.

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Simon Blätgen

Simon Blätgen hat an der FU in Berlin und in Paris Jura studiert, mit einem Schwerpunkt auf Europa- und Völkerrecht. Seit 2015 ist er Doktorand in Völkerrecht in einer gemeinsamen Forschergruppe mehrerer Unis aus Berlin und Potsdam. Bei Polis unterstützt er das Team Schengen.
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