The Schengen area and cooperation
The Schengen area and cooperation are founded on the Schengen Agreement of 1985. The Schengen area represents a territory where the free movement of persons is guaranteed. The signatory states to the agreement have abolished all internal borders in lieu of a single external border. Here common rules and procedures are applied with regard to visas for short stays, asylum requests and border controls. Simultaneously, to guarantee security within the Schengen area, cooperation and coordination between police services and judicial authorities have been stepped up. Schengen cooperation has been incorporated into the European Union (EU) legal framework by the Treaty of Amsterdam of 1997. However, all countries cooperating in Schengen are not parties to the Schengen area. This is either because they do not wish to eliminate border controls or because they do not yet fulfil the required conditions for the application of the Schengen acquis.
During the 1980s, a debate began over the meaning of free movement of persons. Some Member States felt the concept should apply to European Union (EU) citizens only, which would involve keeping internal border checks in order to distinguish between citizens of the EU and non-EU nationals. Others argued in favour of free movement for everyone, which would mean an end to internal border checks altogether. Since Member States could not reach agreement, France, Germany, Belgium, Luxembourg and the Netherlands decided in 1985 to create a territory without internal borders. This became known as the "Schengen area", after the town in Luxembourg where the first agreements were signed. Following the signing of the Treaty of Amsterdam, this intergovernmental cooperation was incorporated into the EU framework on 1 May 1999.
Development of Schengen cooperation and extension of the Schengen area
The first agreement between the five original group members was signed on 14 June 1985. A further convention was drafted and signed on 19 June 1990. When it took effect in 1995, it abolished checks at the internal borders of the signatory states and created a single external border where immigration checks for the Schengen area are carried out in accordance with identical procedures. Common rules regarding visas, right of asylum and checks at external borders were adopted to allow the free movement of persons within the signatory states without disrupting law and order.
Accordingly, in order to reconcile freedom and security, this freedom of movement was accompanied by so-called "compensatory" measures. This involved improving cooperation and coordination between the police and the judicial authorities in order to safeguard internal security and, in particular, to fight organised crime. With this in mind, the Schengen Information System (SIS) was set up. SIS is a sophisticated database used by authorities of the Schengen member countries to exchange data on certain categories of people and goods.
The Schengen area gradually expanded to include nearly every Member State. Italy signed the agreements on 27 November 1990, Spain and Portugal joined on 25 June 1991, Greece followed on 6 November 1992, then Austria on 28 April 1995 and Denmark, Finland and Sweden on 19 December 1996. The Czech Republic, Estonia, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia joined on 21 December 2007 and the associated country Switzerland on 12 December 2008. Bulgaria, Cyprus and Romania are not yet fully-fledged members of the Schengen area; border controls between them and the Schengen area are maintained until the EU Council decides that the conditions for abolishing internal border controls have been met. (Details of the position of the United Kingdom and Ireland are given below.)
Measures adopted by the Member States as part of cooperation under Schengen
Key rules adopted within the Schengen framework include:
- removal of checks on persons at the internal borders;
- a common set of rules applying to people crossing the external borders of the EU Member States;
- harmonisation of the conditions of entry and of the rules on visas for short stays;
- enhanced police cooperation (including rights of cross-border surveillance and hot pursuit);
- stronger judicial cooperation through a faster extradition system and transfer of enforcement of criminal judgments;
- establishment and development of the Schengen Information System (SIS).
The Schengen Information System (SIS)
At the heart of the Schengen mechanism, an information system was set up. It allows national border control and judicial authorities to obtain information on persons or objects.
Member States supply information to the system through national networks (N-SIS) connected to a central system (C-SIS). This IT system is supplemented by a network known as SIRENE (Supplementary Information Request at the National Entry), which is the human interface of the SIS.
Incorporating the Schengen acquis into the EU framework
A protocol attached to the Treaty of Amsterdam incorporates the developments brought about by the Schengen Agreement into the EU framework. The Schengen area is now within the legal and institutional framework of the EU. Thus, it comes under parliamentary and judicial scrutiny, and attains the objective of free movement of persons enshrined in the Single European Act of 1986, while ensuring democratic parliamentary control and giving citizens accessible legal remedies when their rights are challenged (Court of Justice and/or national courts, depending on the area of law).
In order to make this integration possible, the Council of the EU took a number of decisions. First, as set out in the Treaty of Amsterdam, the Council took the place of the Executive Committee created under the Schengen Agreements. With its Decision 1999/307/EC of 1 May 1999, the Council established a procedure for incorporating the Schengen Secretariat into the General Secretariat of the Council, including arrangements relating to Schengen Secretariat staff. Subsequently, new working groups were set up to help the Council manage the work.
One of the Council's most important tasks in incorporating the Schengen area was to choose those provisions and measures taken by the signatory states that formed a genuine acquis, or body of law, and that could serve as a basis for further cooperation. A list of the elements that make up the acquis, setting out the corresponding legal basis for each of them in the Treaties (EC Treaty or the Treaty on the European Union), was adopted by Council Decisions 1999/435/EC and 1999/436/EC of 20 May 1999. Most of these acts are published in the Official Journal. Since then, the Schengen legislation has been further developed. For example, some articles of the Schengen Convention have been replaced by new EU legislation (e.g. the Schengen Borders Code).
The participation of Denmark
Although Denmark has signed the Schengen Agreement, it can choose whether or not to apply any new measures taken under Title IV of the EC Treaty within the EU framework, even those that constitute a development of the Schengen acquis. However, Denmark is bound by certain measures under the common visa policy.
The participation of Ireland and the United Kingdom
In accordance with the protocol to the Treaty of Amsterdam, Ireland and the United Kingdom can take part in some or all of the Schengen arrangements, if the Schengen Member States and the government representative of the country in question vote unanimously in favour within the Council.
In March 1999, the United Kingdom asked to cooperate in some aspects of Schengen, namely police and judicial cooperation in criminal matters, the fight against drugs and the SIS. The Council Decision 2000/365/EC approving the request by the United Kingdom was adopted on 29 May 2000.
In June 2000, Ireland too asked to take part in some aspects of Schengen, roughly corresponding to the aspects covered by the United Kingdom’s request. The Council adopted the Decision 2002/192/EC approving Ireland’s request on 28 February 2002. The Commission had issued opinions on the two applications, stressing that the partial participation of these two Member States should not reduce the consistency of the acquis as a whole.
After evaluating the conditions that must precede implementation of the provisions governing police and judicial cooperation, the Council consented with its Decision 2004/926/EC of 22 December 2004 that this part of the Schengen acquis could be implemented by the United Kingdom.
Relations with third countries: common principles
The gradual expansion of the Schengen area to include all EU Member States has led third countries that have particular relations with the EU to take part in Schengen cooperation. The precondition for association with the Schengen acquis by non-EU countries is an agreement on free movement of persons between those states and the EU (this is provided for by the Agreement on the European Economic Area in the cases of Iceland, Norway and Liechtenstein and by the Agreement on the free movement of persons in the case of Switzerland).
For these countries this participation involves:
- being included in the area without checks at internal borders;
- applying the provisions of the Schengen acquis and of all Schengen-relevant texts adopted pursuant to it;
- being involved in decisions relating to Schengen-relevant texts.
In practice, this involvement takes the form of mixed committees that meet alongside the working parties of the EU Council. They comprise representatives of the Member States' governments, the Commission and the governments of third countries. Associated countries therefore participate in discussions on the development of the Schengen acquis,but do not take part in voting. Procedures for notifying and accepting future measures or acts have been laid down.
Relations with Iceland and Norway
Together with Sweden, Finland and Denmark, Iceland and Norway belong to the Nordic Passport Union, which has abolished internal border checks. Iceland and Norway have been associated with the development of the Schengen Agreements since 19 December 1996. Although they did not have voting rights in the Schengen Executive Committee, they were able to express opinions and formulate proposals. To extend this association, the agreement on Iceland’s and Norway’s association with the implementation, application and development of the Schengen acquis, as based on the Council Decision 1999/439/EC of 17 May 1999, was signed between Iceland, Norway and the EU on 18 May 1999.
An agreement approved by the Council on 28 June 1999 covers relations between Iceland and Norway on the one hand, and Ireland and the United Kingdom on the other, in the areas of the Schengen acquis applying to Iceland and Norway [Official Journal L 15 of 20.1.2000].
The Council Decision 2000/777/EC of 1 December 2000 provides for the application of the Schengen acquis arrangements to the five countries of the Nordic Passport Union as from 25 March 2001.
The participation of Switzerland and Liechtenstein
The EU concluded an agreement with Switzerland on its participation in the Schengen area [Official Journal L 53 of 27.2.2008]; consequently, Switzerland joined on 12 December 2008. It has the same associate status as Norway and Iceland. A protocol on the participation of Liechtenstein in the Schengen area was signed on 28 February 2008.
The second-generation Schengen Information System (SIS II)
As the SIS has been operational since 1995, work is in progress on a new system with enhanced functionalities and based on new technology. This new system (SIS II) is currently undergoing extensive tests in cooperation with Member States.
The Council adopted two legislative instruments on 6 December 2001: Regulation (EC) No 2424/2001 and Decision 2001/886/JHA, making the Commission responsible for developing SIS II and providing for the related expenditure to be covered by the general budget of the EU. These instruments were modified in 2006, extending the period of their validity until 31 December 2008.
The Commission published a communication [COM(2001) 720] on 18 December 2001 examining ways of creating and developing SIS II. Following studies and discussions relating to the architecture and functionalities of the future system, the Commission presented three proposals for legislative instruments in 2005. Two of the instruments in this package (Regulation (EC) No 1987/2006 on 1st pillar aspects of the establishment, operation and use of SIS II and Regulation (EC) No 1986/2006 on access to SIS II by the services responsible for issuing vehicle registration certificates) were adopted on 20 December 2006. The third instrument (Decision 2007/533/JHA determining 3rd pillar aspects of the establishment, operation and use of SIS II) was adopted on 12 June 2007.
The Justice and Home Affairs Council of December 2006 endorsed the SISone4all project (a joint effort by Member States coordinated by Portugal). SISone4all was a temporary solution, which enabled nine EU Member States that joined the EU in 2004 to connect to the current SIS system (SIS1+), with some technical adjustments. The successful completion of SISone4all, in conjunction with the positive Schengen evaluations, allowed the lifting of internal border controls with these new countries at the end of 2007 for land and sea borders and in March 2008 for air borders.
The lifting of internal border controls paved the way for implementing alternative and less risky approaches for migrating from SIS1+ to SIS II. Following requests by the Member States to allow more time for testing the system and to adopt a less risky strategy for migration from the old system to the new one, the Commission presented proposals for a regulation and a decision defining the tasks and responsibilities of the various parties involved in preparing for the migration to SIS II (including testing and any further development work needed during this phase). These proposals were adopted by the Council on 24 October 2008.