ONE YEAR OF SCHENGEN IN OPERATION
On 26 March 1995, the Schengen Implementing Convention (SIC) entered into force in seven member states (Germany, France, the Benelux countries, Spain and Portugal). According to both the Schengen "Central Group" of senior officials and the German Interior Ministry, the results of one year of implementation are satisfactory, despite shortcomings in various areas. More than ever, the Schengen cooperation is presented as an engine of the European Union. The question is, how long it will remain outside the EU framework.
Internal borders
The checks at internal Schengen border crossing points (i.e. crossing points between two Schengen-member states) have been abolished, except for French controls at that country's borders with the Benelux countries.
On the other hand, the Schengen states agreed on 24 October 1995 that the protection of the internal borders should be considered a matter of "common interest" and that the abolition of checks at crossing points should be compensated for by further improved cooperation between the police, the Customs and the judiciary, as well as by joint mobile controls in areas 20 km deep on both sides of internal borders.
The Permanent Conference of German Interior Ministers describes common border zones as "sensitive crimino-geographical areas" requiring continually improved transborder police cooperation.
For this purpose, joint bi-national police offices have been set up at the French-German and the French-Spanish borders. Similar agreements are planned between Germany and the Benelux countries. Germany regards this form of joint transborder policing as "a model for a particularly intense form of European police cooperation" and even considers concluding similar bi-lateral agreements with Poland and the Czech Republic, i.e. countries neighbouring the Schengen territory.
In its annual report on the implementation of the SIC, the Schengen Central Group notes that all member states are already "more or less systematically" carrying out mobile controls in areas close to internal borders to control the movement of third country nationals.
Cross-border observation and hot pursuit
The SIC provides for the police of one member state to cross the border of a neighbouring member state for observing or hunting criminals. However, the details of such cross-border police operations are defined in bi-lateral agreements between neighbour states. Germany has granted all its neighbouring Schengen member states a right of hot pursuit without time or territorial restrictions, while the German police are subject to varying restrictions in Belgium, France, Luxembourg and the Netherlands. Germany is now pressing for a harmonisation of the bilateral agreements to allow unrestricted observation and hot pursuit.
For the time being, cross-border hot pursuits and observations do not appear to occur very frequently. Germany, for example, reports only 51 cases of observation and 27 of hot pursuit from or to Germany, in the first 12 months of implementation of the SIC.
External borders
Intensified control measures at the external borders under the SIC, such as the requirement to check every third country (non-EU) national entering the Schengen territory against the computerised Schengen Information System (SIS), have sometimes led to delays at crossing-points and increased working pressure for border personnel. Two-track systems enabling a separate processing of "difficult or dubious cases", as well as border control posts lying side by side and permitting close cooperation with the neighbouring third country, help speed up controls, the Central Group says.
Surveillance is being steadily increased at the "green borders" outside official crossing points. Nonetheless, the Central Group reports constant illegal entry from Eastern Europe, Asia, Africa and South America, particularly at the German borders with Poland and the Czech Republic, but also at the French-Italian and French-Swiss borders (which became external Schengen borders in March 1995).
Innenpolitik, a monthly magazine published by the German Interior Ministry, particularly mentions the Mediterranean port of Bar in Montenegro as an example for a "localised and geographically restricted source of danger". According to Innenpolitik, thousands of undesirable third country nationals - most of them Kosovo-Albanians and Turks take the ferry from Bar to the Italian port of Bari and then make their way to Germany and the Benelux countries via France.
Innenpolitik stresses that, with regard to external border security, the extension of Schengen cooperation to the Nordic countries will result in "the line of protection and defence being further advanced".
As the next step, Germany wishes to facilitate full Swiss participation in Schengen cooperation. For the time being, the Schengen states should seek bilateral agreements "made up of elements corresponding to the Schengen Agreement" with the Central and Eastern European states and Switzerland. The German objective is to "get these states to progressively bring their security and immigration policies closer to Schengen standards".
Border controls moved to the countries of departure
With a view to the effective prevention of illegal immigration, pre-boarding checks at airports of departure outside the Schengen territory or joint controls at Schengen airports of destination are increasingly carried out on so-called "risk flights". According to the Central Group, the implementation of the SIC has led to increased checks on third country nationals - mainly transiting passengers, who were usually not controlled earlier. This has resulted in a "significant rise" in denied entries.
A general trend towards moving entry controls to countries of departure is highlighted by Innenpolitik. The magazine describes the Schengen member states' foreign representations as "advanced security posts" and stresses the need for close cooperation of embassies and consulates in processing visa applications. The integration of the automatised VISION-system for mutual consultation on visa applications is to be integrated into the SIS through the setting up of SIRENE II, the second phase of the electronic communication system for Supplementary Information Requests at National Entries.
The introduction of a common Schengen visa allowing its bearer to travel to all Schengen member states, has led to visa applicants filing their application at the consulate of the Schengen member state which suits them best with regard to accessibility, visa fees and liberal reputation. Since the beginning of the implementation of the SIC, the total number of visa applications has significantly dropped by 17 per cent, from 4,893,119 (1994) to 4,083,540 (1995). But the drop in applications varies strongly from one member state to another. Thus, the decrease was -34 per cent for Belgium but only -8 per cent for the Netherlands.
Innenpolitik also advocates a systematic enforcement of so-called "carrier sanctions" as provided for by the SIC. Carrier companies must be required to carry out their own pre-flight checks on passengers at airports of departure and should be fined whenever they transport insufficiently documented passengers. The article claims that, while carrier companies are usually made liable for the costs of the return of passengers denied entry, a number of Schengen member states have failed, as yet, to systematically enforce additional sanctions under the SIC.
On 22 December, the Schengen Executive Committee (the Schengen Council of Ministers) agreed on the need for "pre-flight inspections" to be carried out by officers of the Schengen state of destination stationed at non-Schengen airports, and eventually at railway stations and sea ports of departure. The problem in realising this scheme lies with the third countries on whose territory the advanced border controls of the Schengen countries shall take place. According to Innenpolitik, many third country governments are opposed to foreign border control personnel operating on their territory.
SIS: A new quality of search
In its annual report, the Schengen Central Group describes the SIS as the only criminal search system of its sort in Europe. Unlike Interpol, search requests of member states are immediately stored in the SIS and communicated to the national parties of the SIS, the N-SIS. According to Innenpolitik, a "new quality of search" has been achieved compared with Interpol, since the member states are liable under the SIC to enter all relevant information into the SIS. A search request in the SIS automatically comprises a request for preliminary detention in view of extradition. Thus, the lawfulness of an extradition is already established from the moment the search request is entered into the SIS.
Innenpolitik further notes that, unlike the SIS, Europol has not been conceived as a criminal search system, but merely to enable the exchange of case-related information and analysis of trans-border criminality.
For these reasons, for the Schengen member states, "the SIS prevails over all other means of information", but this "of course does not mean that Interpol is no longer important". Interpol continues to be necessary for searches in neighbour states of the Schengen territory and in the rest of the world.
The Schengen states are currently drawing up rules defining the relation between the SIS and Interpol and particularly the necessary system interfaces.
3.8 million search requests in the SIS
According to the statistic tables attached to the annual report of the Central Group, in early March 1996 the number of valid search requests stored in the SIS amounted to 3,868,529.
939,758 of these requests concerned persons wanted on various grounds, including 507,859 persons denied entry to the Schengen territory (mostly rejected asylum seekers). Requests for "discreet surveillance" or "specific checks" under Article 99 number 8,254; 7,722 of these came from France alone. However no requests have as yet been entered under the controversial Article 99.3 of the SIC, which allows for observation and checks of persons not suspected of any specific crime on state security and public order grounds.
Other categories of data concern:
- ID-documents: 1,407,450
- Motor vehicles: 875,140
- Bank notes: 499,641
- Firearms: 111,205
- Blank documents: 35,335
Of the total of 3.8 million items of data in the SIS, 2.4 million were entered by Germany, and 1.25 million by France.
Registration in the SIS resulted in 19,011 "internal" hits (hits inside a member state due to an entry by another member state) and 12,574 "external" hits (hits outside the member state which entered the request).
The final storage capacity of the SIS in its present shape is 9 million items of data, according to the German Interior Ministry.
The integration of the Italian and the Greek N-SIS is currently being prepared and test programmes are run, although both countries have not ratified the Convention as yet.
According to Innenpolitik, the Schengen states have offered Britain and Ireland the use of the SIS, without requiring them to join the Schengen Convention first.
Judicial cooperation
The SIC contains a number of provisions on improved judicial cooperation, such as the possibility for the judiciary in one member state to send court documents to the addressee in another member state directly, instead of requesting judicial assistance from the member state concerned. The judiciary of one member state can also send requests for judicial assistance directly to the judicial authorities in another member state, without involving the Ministries of Justice.
According to the Central Group, cooperation is still hampered by problems. It is currently being examined how far a network of prosecutors specialised in judicial assistance could improve cooperation. Moreover, an agreement on judicial assistance on road traffic offences and the execution of sentences is being considered.
The relationship of Schengen with the EU
In view of the European Union's Intergovernmental Conference (IGC), the question of the relationship between the Schengen framework and the EU is once again being discussed.
A Briefing on the Intergovernmental Conference and the Schengen Convention presented by the Working Party Secretariat of the European Parliament's "Task-Force" on the IGC, stresses that the SIC is "the precursor of or a sort of testing ground for the creation of a European area without frontiers where people can move freely", provided for in the EEC Treaty, the Single Act, and the TEU (Maastricht Treaty). It insists that the SIC "can and must be replaced by Community regulations valid for the whole Union". The Briefing further notes that, while the Schengen Convention does not formally appear on the IGC agenda, it will probably play an important indirect role in the improvements in Justice and Home Affairs cooperation, an important item on the conference agenda.
It further says that "Schengen and Union policy share a continuity and a common logic, especially as Article 142 of the Convention [SIC] requires the text to be adapted to changes in Community law intended to create an area without internal frontiers".
Two future options for the Convention are described:
- the "minimum option": coexistence between the two systems if some of the EU member states decide not to accede to the Schengen Convention. In that case the Schengen provisions would be adapted or replaced under Article 142 in accordance with changes in Union rules covering the same ground (e.g. the SIC chapter on firearms has already been replaced by a Union directive and the provisions on asylum will shortly be replaced by the Dublin Convention);
- the "maximum option": the Union would accept Schengen, which would be merged into the rules and structures provided for in the TEU.
In the latter event, the SIC could be "discarded, having acted as a catalyst and a testing ground for a European area without frontiers", the Briefing says.
While Germany was earlier believed to favour a rapid merger of Schengen with the EU, the State Secretary at the Interior Ministry, Kurt Schelter, stated in March such considerations are "premature at the moment". Germany argues that Schengen was conceived as an engine for EU development and has proved successful in the respect. Before moving the Schengen acquis to the First or Third Pillar of the TEU, one should await the outcome of the IGC. Germany fears an integration at the present moment could stall the dynamic Schengen cooperation while not bringing cooperation within the EU any further. According to Mr Schelter, a majority of member states shared this German view at an extraordinary meeting of the Schengen Executive Committee on 25 March, while Belgium, Greece and Luxembourg rather believe that an integration of Schengen would improve EU cooperation. The Dutch Schengen Presidency announced its intention to draw up a framework together with the EU Commission for proceedings after the IGC. At the IGC, The Italian EU Presidency is expected to present a proposal for a "Schengen Protocol" that could be attached to the TEU.
On its part, the European Commission says in a statement of 28 February that all items under the Third Pillar of the TEU, except criminal law and police cooperation, should be transferred to the First Pillar (i.e. Community law). "Such a transfer is particularly necessary in areas directly relevant to the free movement of persons, e.g. rules pertaining to crossing external borders, the fight against narcotics, immigration policies, policies regarding third country nationals, as well as asylum policies", the statement says and concludes: "In continuation of this line of thought it appears natural to integrate the Schengen Convention's provisions in the Treaty [on European Union]".
Sources: Schengen Central Group: Jahresbericht über die Anwendung des Durchführungsübereinkommens im Zeitraum vom 26. März 1995 - 25. März 1996 (Annual Report on the implementation of the SIC), Brussels, 26.3.96, SCH/C (96) 17 rev; Innenpolitik (German Interior Ministry), March 1996; Report of an Ad hoc working group to the Permanent Conference of German Interior Ministers (Federal and Länder) on the implementation of the SIC, 14.12.9, in German; Note of State Secretary Kurt Schelter, Interior Ministry, to the Internal Affairs Committee of the German Parliament, Bonn, 29.4.96; Briefing on the IGC and the Schengen Convention, Luxembourg, 30.1.96, European Parliament, PE 165.808; Statement of the European Commission on strengthening and widening the political Union (Den politiske union må styrkes og udvidelsen forberedes), Brussels, 28.2.96, in Danish.