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Introduction

At its meeting in Bonn on 22 December 1994, the  Executive Committee of the
Schengen  group decided  to apply  the Schengen  Convention irreversibly as
from 26 March 1995.

The objective  of  the  present  paper is  to  provide  a  concise  factual
information  on the  scope and  consequences of  the Executive  Committee's
decision and of the implementation of the Schengen Convention.

Summary

In order  for  the decision  implementing  the  Schengen Convention  to  be
understood properly, it  is necessary to outline briefly the background to,
and  development of, the Schengen initiative (point A).

The  paper  then  goes on  to  analyse  the  implications  of the  Schengen
Executive Committee's decision of 22 December 1994 (point B).

It  also describes the most important  effects of the implementation of the
Schengen Convention both  for individuals (point C) and for  relations with
those Member States which  either do not  belong to  the Schengen group  or
belong to it  but without the Convention  being applicable to them  at this
stage (point D).

A.   The background to Schengen
- The 1985 Schengen Agreement

1.   On 14 June 1985 the Commission  approved its White Paper on completing
the  internal  market,  which  was  designed  in  particular  to  eliminate
controls  at  internal  borders -  an  aim  subsequently incorporated  into
Article 8a (now Article 7a) of the EC Treaty by the Single European Act.

On that same  date Belgium, Germany, France, Luxembourg and the Netherlands
signed the Schengen Agreement on  the gradual abolition of checks at  their
common borders  (referred  to below  as  the  "Schengen Agreement").    The
preamble  to the  Agreement stated  that its  aim  was to  bring about  the
abolition of internal border checks at Community level.

The countries signing the Schengen Agreement  wished to abolish completely,
"if  possible,  by   1 January 1990"  (Article 30),  all  checks   on  both
individuals and goods at their common borders.  The Agreement provided  for
measures to facilitate  checks which were to  be applied as from  its entry
into force;  it also listed  accompanying measures which  were to  be taken
prior to the  total abolition of border  checks and which were  designed to
maintain a  high level of  security in the  frontier-free area.  That  list
corresponded  to the  programme set  out  in the  Commission's White Paper:
accompanying measures had to  be taken regarding immigration controls, visa
and  right-of-asylum  policies,  cooperation  between  police  forces,  the
combating of drug trafficking,etc.

The 1990 Convention applying the Agreement

2.   The political sensitivity  and legal  complexity of the  issues to  be
settled  led to  lengthy  negotiations; the  developments  in and  with the
German Democratic Republic  at the end  of 1989  caused additional  delays.
But  on  19 June 1990 the  five  Member States concerned  signed,  again at
Schengen,  the Convention  applying  the  Schengen Agreement  (referred  to
below  as  the  "Schengen Convention").   The  preamble  to  the Convention
states   that   "the  Treaty   establishing   the   European   Communities,
supplemented by the  Single European Act, provides that the internal market
shall comprise an area without internal frontiers"  and "the aim pursued by
the Contracting Parties  (Schengen) coincides with that  objective, without
prejudice to the  measures to be taken  to implement the provisions  of the
Treaty".

The  Convention  confirms the  principle  of  the  abolition  of checks  on
individuals  at  internal  borders  and  contains  all  the  essential  but
sufficient  accompanying measures for ensuring that individuals are free to
cross common borders; it covers in particular:

-    surveillance of external frontiers;
-    harmonization of visa policies;
-    freedom of movement of aliens;
- criteria  for  designating the  country  responsible  for  processing an
  application for asylum;
-    cooperation between police forces;
-    cooperation  between  the  legal  authorities in  matters  covered  by
     criminal law;
-    extradition;
-    delegation of responsibility for enforcing criminal judgments;
-    narcotics;
-    firearms and ammunition;

-    the Schengen Information System (SIS).

The  Schengen  group had  intended  initially  to  legislate  also for  the
abolition of checks  on luggage  and, more generally,  on goods.   However,
the Schengen  Convention contains virtually no  provisions on these topics,
the Schengen  group having  taken the  view that  they unquestionably  fell
within the Community's sphere  of competence and that satisfactory progress
was being made at Community level.

Work since the signing of the Schengen Convention

3.   Since the signing  of the Convention applying  the Agreement, Schengen
work has been concentrated on two areas:

- preparation of the arrangements for implementing the Convention applying
  the Agreement;

-    enlargement of the Schengen group.

3.1  On the  latter point, it should  be pointed out that  accession to the
Agreement  and   to  the  Schengen   Convention  is  reserved  solely   for
Member States of the Union.  The following have since joined the group:

-    Italy, on 27 November 1990;
-    Spain and Portugal, on 25 June 1991;
-    Greece, on 6 November 1992.

Of the twelve Member States, only  Denmark, Ireland and the  United Kingdom
have not yet acceded  to the Schengen agreements.   However, in  March 1994
Denmark requested  observer status  in the  Schengen group with  a view  to
seeking membership.  That request is being examined.

The  work on  enlarging  the  Union has  paved  the  way for  possible  new
Member States  to envisage  joining the  Schengen group.   On  27 June 1994
observer status was granted to  Austria, and the instruments  providing for
its  accession  to the  Schengen agreements  will be  signed in  the coming
weeks.

3.2  Since the  signing of  the Convention,  the Member States  forming the
Schengen group  have been  making  the  arrangements for  implementing  the
Convention  and for  introducing  the mechanisms  and forms  of cooperation
covered by the Convention, including the SIS.

The most important  implementing arrangements include the common  manual on
external frontiers and the common consular instruction.

The problems  encountered in  introducing an  operational  SIS have  caused
delays in implementing the Schengen Convention. 

Entry into force/implementation of the Schengen Convention

4.   A  distinction  must be  drawn between  the entry  into force  and the
implementation of the Schengen Convention.

4.1  As  to  its entry  into  force,  the  Schengen Convention  contains  a
traditional  provision:    entry  into  force   depends  on  the  requisite
ratification  instruments   being   deposited  and   occurs   automatically
(Article 139).  For the  five signatories  to the Schengen Convention,  the
Convention came  into force on  1 September 1993;  for  Spain and Portugal,
two  countries  acceding  to  the   Convention,  it  came  into   force  on
1 March 1994.

Legally,  therefore,  the  Executive Committee  is  made  up  only  of  the
ministers of those seven  countries;  however, decisions are  taken only if
approved by all involved, including Italy and Greece.

4.2  In  order to prevent this  automatic entry into  force from compelling
member countries  to abolish  checks  at internal  borders  before all  the
accompanying  measures provided  for in  the Convention  were applied,  the
member countries incorporated into  the Final Act a statement to the effect
that  the Convention would come into force  only when the preconditions for
applying  it had  been  met  in the  signatory  countries and  controls  at
external frontiers were effective.

As those preconditions  were not met in time, the deadline for implementing
the Schengen Convention  was missed  on three  occasions (successive  dates
adopted   by  the   Schengen group:     1 July 1993,  1 December 1993   and
1 February 1994).

At its  meeting in Paris on 14 December 1993, the Executive Committee noted
that all the preconditions  had been  met, except for  that relating to  an
operational SIS.   It was the  technical difficulties  surrounding the  SIS
that led  the Schengen group  to postpone implementation  of the Convention
again in February 1994,  this time  until an unspecified  date.  Thanks  to
the sustained  and  determined efforts  of  the  German presidency  of  the
Schengen group   (throughout  1994),  those   technical  difficulties  were
overcome,  enabling the  Executive Committee  to  decide to  implement  the
Schengen Convention at its meeting in Bonn on 22 December 1994.

- Schengen and the Community (and the Union)
5.   Before  analysing   this  decision   on  the  implementation   of  the
Schengen Convention, the following comments need to be made  concerning the
position  adopted by  the  Community  institutions regarding  the  Schengen
initiative   and        concerning    the    relationship    between    the
Schengen Convention and  the instruments  of the  Community, the Union  and
intergovernmental bodies of the Twelve.

5.1  From  the   outset,  the  Commission  welcomed   the  Schengen group's
initiative  as a  driving  force and  a  Community test-bed  for abolishing
checks on  individuals at  internal borders.   The  favourable response  to
this intergovernmental initiative was due  in particular to the  fact that,
at  Community  level, the  Commission  had  adopted  a pragmatic  approach,
accepting  that  the measures  accompanying  the elimination  of  checks on
individuals would  be drawn up by  intergovernmental bodies and not  by the
Community institutions.

By  participating  as   an  observer  in  the  Schengen group's  work,  the
Commission ensured that  the Schengen initiative developed in a manner that
was fully  consistent with  Community objectives  and law.   It ensured  in
particular that the Schengen Convention involved  no discrimination between
nationals of Schengen countries and  those of the other  Member States (see
below).

5.2  With regard  to  the  preparation of  the  measures  accompanying  the
abolition of checks on  individuals at Community level, it should  be noted
that,  generally speaking,  in the intergovernmental  bodies of  the Twelve
the Schengen Member  States have not  formed an alliance  seeking to impose
the Schengen  rules on the  other Member States without  any possibility of
derogation.  For  example, the  criteria adopted for  the Dublin Convention
of the  Twelve, signed on  14 June 1990, for  determining the  Member State
responsible for  examining an application  for asylum are  not identical to
those adopted in the relevant chapter of the Schengen Convention.

5.3  This   does   not   mean   that   the   rules   agreed   between   the
Schengen countries  have not  had any impact  on the  Twelve's accompanying
measures.  For example, the  Commission's initial proposal for  a Directive
on the control of the purchase  and possession of arms was not  designed to
harmonize national legislation  on arms.  The Schengen group took the view,
however,  that  such  harmonization  (prohibited   arms,  arms  subject  to
authorization and  arms subject  to declaration)  constituted an  essential
accompanying measure.  The Commission  presented an amended proposal  for a
Directive which  incorporated the  Schengen Convention provisions  relating
to such harmonization, and that proposal was approved by the Council.

When the  Commission presented its  proposal for a Regulation  establishing
the list of third  countries whose nationals had  to be in possession of  a
visa   when   crossing   the  external   borders   of   the   Member States
(Article 100c(1)  of the EC Treaty), it  adopted the  "negative" list drawn
up by the  Schengen group.  Similarly,  when the  Commission presented  its
proposal  for  a  Regulation establishing  the  uniform  format  for  visas
(Article 100c(3)  of  the EC Treaty),  it  used  the  visa  adopted by  the
Schengen group (which, in drawing  up its uniform format for visas,  saw to
it that that format could be used at Union level).

Conversely,  the  Schengen group  adopted   the  implementing  arrangements
agreed at Union level for  the Dublin Convention as its rules for  applying
the "asylum" chapter of the Schengen Convention.

5.4  With regard  to the  relationship between the  Schengen Convention and
the instruments  for  achieving  the objective  of  eliminating  checks  on
individuals at  Union level,  it was  pointed out above  that the  Schengen
initiative was  launched  with a  view  to attaining  the  aim set  out  in
Article 7a  of the EC Treaty  and that  the Schengen Convention  is without
prejudice to measures taken or to be taken under the Treaty.

This is guaranteed by two provisions of the Schengen Convention:

- one  which lays down the principle of the precedence of Community law in
  respect  of  the  relationship  between  the  Convention  and  Community
  instruments   (Article 134),   e.g.   on  the   question   of   firearms
  (relationship  between  the  above-mentioned  Directive  and  Article 77
  et seq. of the Convention);

- no  other which lays down that  conventions to be  concluded between the
  Member States  of  the   Union  will  also  take   precedence  over  the
  Schengen Convention (Article 142):

     "When  conventions  are concluded  between  the  Member States of  the
  European Communities  with a view  to the completion of  an area without
  internal   frontiers,  the  Contracting Parties   shall  agree   on  the
  conditions under which  the provisions of the present Convention  are to
  be  replaced or amended in  the light of the corresponding provisions of
  such conventions. 

  The Contracting Parties  shall, to  that end, take account  of the  fact
  that  the provisions of  this Convention may provide  for more extensive
  cooperation  than  that  resulting  from  the  provisions  of  the  said
  conventions. 

  Provisions which are in breach of those agreed between the Member States
  of  the  European Communities  shall  in any  case  be  adapted  in  any
  circumstances."

On the  basis  of this  provision,  the  Schengen Executive  Committee  has
already approved  a protocol stipulating  that the "asylum"  chapter of the
Schengen Convention  will be  replaced by  the  Dublin Convention when  the
latter enters into force.

B. Decision on the implementation of the Schengen Convention

1. On  22  December  1994  the  Schengen  Executive  Committee  decided  to
implement the  Schengen  Convention  irreversibly  as  from  26 March 1995,
since all the preconditions  for the abolition of  internal-frontier checks
on persons - including an  operational Schengen Information System  (SIS) -
had been met.

The date  chosen will  enable the  Schengen arrangements  to be  introduced
simultaneously at  internal land,  sea and  air frontiers  (as regards  air
travel, the date coincides with the switch to summer flight schedules).

The Convention will be implemented  as from that date by seven of  the nine
signatory  countries:  Belgium,  Germany,  Spain,  France, Luxembourg,  the
Netherlands and  Portugal (in Italy  and Greece, not  all the preconditions
have yet been met; the accession instruments have  not yet been ratified by
all the national parliaments;  and the national SIS networks are not yet in
place).

2.  Between 22 December  and 25 March  the necessary  preparations will  be
made, in  terms of organization  and staffing, for  the full implementation
of the Schengen  rules (particularly  as regards  cooperation on  consular,
legal  and  police  matters,  and  completing  the  conversion  of  airport
infrastructures).

3.  A  three-month  initial  implementation phase  will  begin  on 26 March
during  which  close monitoring  will  aim to  detect  any problems  and to
rectify them without delay.

From that date, therefore, the  Schengen partners will abolish  controls at
their internal frontiers altogether, and  the change will be  most apparent
at airports.

The implementation of the Convention  and, in particular, the  abolition of
controls will be a matter for each contracting party.

A permanent monitoring  framework has also been  set up to ensure  that any
technical problems which arise are resolved.

At  the end of  the initial  phase, the  Central Group  will submit  to the
Executive  Committee  a  first report  on  the  operation of  the  SIS, the
effectiveness of controls at external  frontiers and of measures  to combat
drug trafficking,  and  the results  of  cooperation  on police  and  legal
matters.

C. Implementation of the Schengen  Convention and its implications  for the
general public

1. The  implementation of the  Schengen Convention  will mark a  major step
forward for  members of  the public,  who will  be able  to enjoy  complete
freedom of movement within a significant part of the single market:

- everyone,  regardless  of  nationality  (i.e.   including  third-country
  nationals), will thus benefit from the abolition of controls at internal
  frontiers: and so, within the frontier-free area, no distinction will be
  made  between nationals of  the Schengen countries and  nationals of the
  other Member States;

- at the external frontiers of the Schengen countries, all Union nationals
  will merely  be required  to show  their identity  card or  passport  in
  accordance with  current Community  law: again,  no distinction  will be
  made between Schengen and non-Schengen nationals.

2. The implementation  of the Convention will  also be of major  benefit to
third-country nationals residing in a  Schengen country since they  will be
able  to travel  to the  other Schengen  countries  on the  basis of  their
residence permit and will not be subject to visa requirements.

It should  be noted  that the  principle of  equivalence between  residence
permits and visas  applies only to  third-country nationals  residing in  a
Member State  in  which  the  Schengen  Convention  has  been  implemented.
Third-country  nationals residing  in Italy  or Greece,  or in  one  of the
non-Schengen Member States  will be  "discriminated against": depending  on
their nationality,  they will continue  to be subject  to visa requirements
when  entering  Schengen  territory  (or  the  territory  of  one  or  more
member countries).

3. The  Schengen visa  arrangements will  apply to third-country  nationals
who  are  not  resident  in  one  of  the  seven  Member States  where  the
Convention has been implemented but who travel there for a short stay.

Compared with the  present situation, the harmonized arrangements  imply on
the one hand that in theory, a  visa issued by one Schengen country will be
valid throughout Schengen territory and, in exchange of this  facilitation,
on the other hand,  that in theory, all the signatory countries will refuse
to issue a visa to someone  put on the common list of persona non  grata by
a fellow signatory.

D. Implementation of the Schengen  Convention and its implications  for the
European Union

1. The  establishment of an  area without  internal frontiers goes  hand in
hand  with  the  introduction   of  effective  controls  at   its  external
frontiers. The  absence of a  convention on the  crossing of Member States'
external  frontiers  is  one  reason  why  controls  have  still  not  been
abolished throughout the Union.

By the  same token,  the Schengen  group will  apply its  external-frontier
arrangements at  those frontiers which  are external for  them but internal
for the Union.  It remains to be seen  whether this will result  in tighter
controls at those frontiers.  A guarded response is called for  at both the
theoretical and the practical level.

At  the  theoretical level,  Community  law  as  it  stands (leaving  aside
Article 7a) permits routine checks  on Union nationals and  their families.
However,  Member States must allow  such persons  to enter  their territory
simply on production of their  identity card or passport  (where necessary,
containing a  visa  in  the  case  of  family  members  with  third-country
nationality). The Schengen Convention fully respects Community  law on this
point.

At the practical  level, it is true  that routine checks have  already been
abolished at  a number of  internal frontiers.  The  reintroduction of such
controls  there following  the implementation  of  the Schengen  Convention
would, therefore, be a retrograde step.

However, this problem needs  to be put into perspective: routine  checks on
intra-Community  passengers  have  so  far  been  retained   at  ports  and
airports.  As a result, the implementation of the  Convention will not be a
retrograde step as regards crossings  and flights between one of  the seven
Schengen  countries for which the Convention will  enter into force and the
other Member States. It would  be a retrograde step only at  those Schengen
external land frontiers  which are internal  frontiers for  the Union:  the
border between France and Italy  (until the Convention is  also implemented
in Italy), and  that between Germany  and Denmark  (which recently  applied
for Schengen observer status).

2. With specific  regard to the implementation of the Schengen arrangements
at airports, the position from  26 March 1995 onwards may be  summarized as
follows:
At  (major)  Schengen  airports,  passengers  will  normally  pass  through
separate channels according to whether  they are on domestic/intra-Schengen
flights or on non-Schengen flights (i.e. to  or from Member States or third
countries):

- those on intra-Schengen flights, irrespective of their nationality, will
  be  checked neither on departure nor on arrival (they may be required to
  undergo  only such  security checks  as are  or may  be  carried out  on
  passengers travelling on domestic flights);

- those  on   non-Schengen  flights  will   be  treated  as  international
  passengers and required  to undergo the relevant controls on  leaving or
  entering Schengen territory.

For  instance, passengers arriving in  Paris on flights  from London or New
Delhi will be checked  on entry. Union and EEA nationals and their families
will merely  have  to  present  their  passport  or  identity  card,  while
third-country nationals will be required to undergo thorough controls.

Schengen  airports will  retain the  special channels  for  Union nationals
(and other passengers  covered by Community law) on  international flights,
in order to reduce waiting times.

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