THE SCHENGEN DEBACLE - A CHANCE FOR A DEMOCRATIC TURNABOUT?
The Schengen debacle is raising critical and self-critical thoughts both about the still limited applicability of computer technology for policing and the deficiencies of intergovernmental policy-making outside democratic institutional frameworks. Nothing however, indicates that the essential objectives of the Schengen process - more control and policing - are likely to be dropped.
With the sine die postponement of the entry into force of the implementing agreement, the Schengen process has suffered a breakdown - temporary at least - on two levels: the technical and the political.
On the technical level, persistent trouble in making the SIS, this gigantic tool of computerised policing, operational, tends to show that a wide gap still remains between the conception of ever more sophisticated high-tech devices of control and surveillance and their actual applicability in a complex reality governed not only by binary mathematics, but just as much by innumerable social, economic, political, historical and cultural factors.
The failure of the SIS is not the only illustration of the fact. Some years ago, criminal investigators in Hamburg investigating a squatter movement suspected of being inclined to violence and terrorism sorrily admitted that Germany's impressive electronic data base on terrorism and extremism, APIS, was of no use in identifying the ringleaders of the boisterous squatters. The police computer simply contained too much and too soft (unreliable) information on too many people. The Hamburg policemen gradually discovered that a daily reading of the local newspapers' reports on the squatter issue was far more fruitful for the investigation.
There is political failure too. Executive branches of government have long since shown frustration at the slow pace of European harmonisation in the field of law and order. This is why they developed a scheme of policymaking that enabled them to circumvent to a large extent cumbersome and time-consuming public debate, and parliamentary and judicial control. The scheme consisted of resorting to inter-governmental "ad hoc" and step-by-step cooperation matching the needs of the day and outside clearly defined common legal and institutional frameworks. It was based on a secretive and discriminating policy of co-optation of some Member States acting as the self designated elite of European policing.
By creating faits accomplis in this domain, the "elite-states" hoped to gradually impose their political choices on the "retarded" rest of the Community.
As the haste of the southern EU-member states to join the Schengen group shows, this policy has had some success.
Moreover, the scheme of basically secretive intergovernmental "ad hoc" cooperation favoured the rise of the "Fifth power". Politically un-accountable senior officials were exchanging experience, drafting agreements and, de facto, making political decisions in a plethora of more or less informal working groups that is increasingly difficult to oversee. The Schengen process was the principal laboratory in shaping this profoundly undemocratic scheme of European cooperation.
The political lesson to draw from the present debacle is, that - in the long run - efforts to achieve European unity by such means are doomed to failure.
As the Masson report to the French Senat emphasises, the Schengen fiasco is the result of "policies engaged without prior concertation, either with public opinion, or with the parliaments". The report further recalls the fact that both the European and the national parliaments were deliberately kept outside of the Schengen negociations, the work of the Ad hoc Group on Immigration, the CIREA and the CIREFI, "just as they are now from the work of the committee established by article K.4 of the Treaty on European Union".
The report concludes that "transparency and democratic control are indispensable in creating a European political determination" to cope with serious crime.
In its recent Communication on Immigration and Asylum Policies (see article in this issue) the European Commission appears to draw similar lessons, when it questions the efficacy of ad hoc "approximation" in this policy domain and insists on the need for "legally binding instruments and procedures" as the only means of achieving and implementing a common policy.
The Schengen debacle - and this is maybe its major positive aspect - is likely to further stimulate such necessary reflection about the wisdom of building European unity on intergovernmental ad hoc approximation rather than public democratic consent.
We should seize this possibly unique chance for a genuine public debate.
On the other hand, malicious satisfaction in the face of Big Brother's nervous break-down is unjustified.
The Schengen laboratory has already done great damage by serving as a welcome pretext for "law and order" hard-liners both in the Schengen- member states and in the rest of Europe to infringe on fundamental rights and liberties:
France and Germany have amended their constitutional provisions pertaining to the right of asylum. The Netherlands is considering the introduction of a compulsory identity card and similar projects are under way in other countries (see article in this issue on electronic ID-card in Switzerland). Spain has hardened its legislation on drugs and Portugal has abandoned formerly liberal immigration and naturalisation policies vis à vis its former colonies.
On a general European level, discriminatory internal checks and external border controls have become routine.
All these developments have been justified by the respective national governments as a necessary pre-requisite for the implementation of the Schengen Agreement, which in its turn is presented as the fore-runner of European harmonisation in the fields of justice and home affairs.
Yet, while the Schengen Agreement and thus the implementation of its only positive element, the free movement of persons within the member states, is postponed sine die, the liberty-restrictive "prae hoc" changes in law and practice it caused are likely to remain and further spread.
As a matter of fact, the Schengen debacle was caused by contradictions and rivalries inherent in the scheme of policy implementation chosen, and not by the central implications of the agreement - the curbing of immigration and a general shift of power towards police and security. Regarding these objectives no change of attitudes is in sight.
None of the governments that, for various reasons, have quite successfully obstructed both the Schengen process and the development of the Third pillar of the Maastricht treaty (cooperation in the fields of Justice and Home Affairs) are opposed to these repressive objectives. Britain, for instance, is eager to exploit a powerful European policing computer of the SIS type. Just like the French Interior Minister Pasqua, the British government is opposed only to the Schengen policy, aborted for the time being, of abolishing EU-internal border controls. The argument is about more, not less policing.
N.B.