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14 mei 2015

Schengen and centralization of the EU by Antonio Vulas

 Door Antonio Vulas Head of the Illegal Migration Department in the Police Administration Split-Dalmatia. Graduated on the Law faculty, University of Split. In the Police since 1990.

Creation of the EU and Schengen

Although Schengen and the European Union have the same mother - the idea of united Europe - we might say that their fathers and childhoods were different. From the very beginning for some of the creators of the European economic fusion it was just a first step for much higher objective - a political unification.
The economically united (western) Europe was born in atmosphere still full of toxic war clouds. France was on the knees, held up only by a weak hand of wounded Britain. Germany was buried under the ruins. Political strength of the European countries was broken. The Russian tanks on the banks of Elbe and Danube reminded the western Europeans that the days of fear have not disappeared with the German panzers.
The idea of united Europe, at least of its western part, was not such a new idea in that time. But vigorous attempts of Winston Churchill in the post war years to find a way to oppose the communist threat in Europe, have brought the idea of "the United States of Europe" at surface again. He was not the only one who saw the advantages, and some would say inevitability, of such project. Europe could survive in the new world only if it was united.
Unification of whole Europe in that time was not possible. Half of the central Europe and whole eastern Europe was in the Russian hands. There had to be be found a way how to unite the rest of Europe. And what kind of union it should be?
As we all know it started from the economics. In economically broken western European countries it was not so hard to impose the idea of economic cooperation as a way for the economic survival.
I shall not go in details how a simple economic cooperation evolved into a common market and finally into a political union, I am sure we all know that. But despite the gradual development of the economic and political unification of Europe (after 1990 we can talk about whole Europe) some things remained unsolved between the partners, and those things had to be solved parallel to the EC/EU integration.
Common market is the key stone of the united Europe. But in order to develop a common market one needs to fulfil some prerequisites, such as free movement of goods, capital, services and - people. These elements are conditio sine qva non for a common market.
Freedom of movement of people within the borders of the Member States has become one of the key issues in the strategic debates how the unified Europe should look like in the future - a commonwealth, a federation or something between.
It is important to say that this debate is still going on. At the moment, the EU is something between, something never seen before in the international relations, but there are strong players who pull the EU in one or another opposing extreme.
In the beginning of the 1980s the debate was getting hot. It was the time when it was clear to everyone that EEC should evolve from a purely economic union to something more. But what?
One of the opposing sides was pointing out that without freedom of movement of people there is no common market. Other opposing side pointed out that full freedom of movement of people within the Member States might pull the EEC dangerously close to federalization, the idea they did not like.
So, as always in the EEC/EU they tried to find a compromise. The side which was opposing to the full freedom of movement of people proposed freedom of movement only for the citizens of the Member States. Some steps in that direction were made. Maybe some of you will remember the oval white car signs with a green frame and a big green capital letter 'E' on it. Some of the citizens of the Member States used those signs on their cars in order to present themselves as the citizens of the EEC Member States, which was a base for a lax border checks on the still existing border crossing points between the Member States.
But the other side was not happy about this compromise. It changed nothing. The border crossing points between the Member States were still there. The border checks we still carried out on all persons moving across the borders. The 'E' sign did not help much. Each car would still be stopped and checked. Besides that, the Benelux and Nordic passport unions without border checks between the participating countries had shown that something like that could be possible even on a larger scale.
Despite all of that the two opposing sides did not want to withdraw. It was obvious that it was not possible to find the solution within the framework of the EEC.
To make a long story short, in 1985 in a small town of Schengen in Grand Duchy of Luxemburg, the representatives of Belgium, the Netherlands, Luxemburg, FR Germany and France signed the Schengen Treaty. The Treaty expressed a wish of those countries to abolish the border checks on their joint borders. The whole process was independent of the EEC integration process. Five years after that those countries signed the Schengen Convention, which in general determined the ways how to implement the Schengen Treaty. Finally, ten years after the signing of the Schengen Treaty five above mentioned countries, together with Spain and Portugal, who had joined the Treaty in the meantime, abolished the border checks on their joint borders. All of this happened outside of the framework of the EEC/EU. The opposing currents within the EEC/EU were to strong to reach a compromise in that moment.
Despite that, in 1997 the Member States of the European Union (in 1993 the EEC becomes the EU) signed the Amsterdam Treaty. By that treaty the Member States agreed that the Schengen acquis should become a part of the EU legal framework. It did not mean that one side of above mentioned opposing sides stepped back. All Member States in that moment could decide whether they were going to accept the Schengen acquis or not. All of them, except the United Kingdom and Republic of Ireland, decided that they are going to abolish the border checks on their joint borders. Still, Denmark kept an 'opt-out' position, meaning that any provision (present or future) of the Schengen acquis needs to get an approval from the Danish parliament within six months in order to be applicable in Denmark. 
Other countries accessing to the EU after 1997 were obliged to accept the Amsterdam Treaty provisions if they wanted to join the EU. For them there was no chance to chose - take it all or leave it all. Today we have 28 Member States of the EU. Six of them are not part of the Schengen area. Besides UK and Ireland, which do not show any enthusiasm for joining, other fours states - Romania, Bulgaria, Croatia and Cyprus - still have to pass the evaluation process. These four countries are obliged to take steps in order to join the Schengen area as soon as possible because they signed the Amsterdam Treaty in the process of their accession to the EU after 1997.
Besides the EU Member States, four other countries, which are not member states of the EU, are included into the Schengen area. Those are Norway, Iceland, Switzerland and Lichtenstein. Since the Schengen Treaty is not directly connected with the membership of the EU these countries were able to join Schengen area after fulfilling the Schengen requirements.

The next step 

So, the general idea of the Schengen Treaty was to enable unhindered movement of the people within a certain territory comprising of more countries which apply the same border control standards.
These standards have been proscribed by many documents. Those who want to get detailed insight should read at least the Schengen Catalogue. It regulates the minimal standards that each country has to apply in its border control system if the country wants to be a part of the Schengen area. Each candidate country should be scrutinized through an evaluation process in the fields of efficiency of measures on the external borders, visa policy, Schengen Information System, police cooperation, judiciary cooperation in criminal cases and measures on the internal borders (see Council Regulation (EU) No 1053/2013 of 7 October 2013 establishing an evaluation and monitoring mechanism to verify the application of the Schengen acquis and repealing the Decision of the Executive Committee of 16 September 1998 setting up a Standing Committee on the evaluation and implementation of Schengen, OJ L 295/27, 6.11.2013).
Only after full implementation of the "Schengen Standards", and a positive opinion by the Schengen evaluation team, a country can be admitted in the Schengen area, but only by an unanimous vote of the representatives of all Member States in the Council of the EU. It is definitely not easy to get in for those countries which are accessing after 1997.
I do not want to go deep into the legal basis on which the "unified border control" on the external borders of the EU is established, because it would be too much for this article, but I have to mention few the most important.
  • COUNCIL REGULATION (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (OJ L 349, 25.11.2004, p. 1)
  • REGULATION (EC) No 562/2006OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ l 105, 13.4.2006, p. 1)
  • Commission Recommendation establishing a common "Practical Handbook for Border Guards (Schengen Handbook)" to be used by Member States' competent authorities when carrying out the border control of persons (9.11.2006)
  • REGULATION (EC) No 863/2007OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 11 July 2007 establishing a mechanism for the creation of Rapid Border Intervention Teams and amending Council Regulation (EC) No 2007/2004 as regards that mechanism and regulating the tasks and powers of guest officers (OJ L 133, 31.7.2007, p. 30)
  • REGULATION (EU) No 1051/2013 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 22 October 2013 amending Regulation (EC) No 562/2006 in order to provide for common rules on the temporary reintroduction of border control at internal borders in exceptional circumstances (OJ L 295, 6.11.2013, p. 1)
  • REGULATION (EU) No 1052/2013 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 22 October 2013 establishing the European Border Surveillance System (Eurosur) (OJ L 295, 6.11.2013, p. 11)
To anyone who knows something about these documents it is obvious that they present a legal base for standardized and uniformed system of border control in all Member States, despite the fact that these documents state that the border control is primarily responsibility of each Member Sates.

Border control sovereignty

Border control sovereignty is something which every Member State jealously defends. But in practice, development of their border control systems, at least their core standards, is decided within the center of the decision making system of the EU and Schengen. It would not be wrong to say that border control sovereignty of the Member States, regarding the strategic development, is seriously "wakened" by the border control standardization. How far it will go it is hard to say. But we can be sure that there are those who would like to standardize and centralize it even more, as well as there are those who would like to reverse that trend.
The most recent proposal by the European Commission for proportional distribution of migrants who might land on the EU shores among the Member Sates has already cause a loud response from some countries who do not agree to receive the migrants who "were let by the other countries to enter to the EU".
This statement shows that the Member States do not believe each other when talking about the efficiency of the border control measures taken on the "other parts" of the external borders. In order to ensure the full trust between the Member States the Commission has to show that the border control measures in Italy and Greece are as good as those in Germany, Sweden or France. The logical answer is that the Commission can do it only by even stronger standardization and uniformity of the border control systems in all Member States.
It is hard to expect that the Member States will easily renounce their "border sovereignty". We can expect that the Member States will preserve their nominal border sovereignty, at least in the near future, but in practice it is going to be more and more centralized and standardized. Otherwise, there is no chance that the Member States will ever develop a sense of necessary trust between each other if they do not believe that the border control in the "other parts" of the  external border are as good as in "their parts".
My conclusion is that the trend of the standardization and centralization of the border control systems will continue and it will take more deeper measures to ensure uniformity. 
The question is - are the member States going to accept this trend?
It is very hard to give the answer. The time will show. The balance of political powers in the EU sometimes is very hard to predict. For example, the EU without the UK would not be the same as with the UK. Extinguishing of the political flames on the southern shores of the Mediterranean, and reduction of the number of the migrants arriving, would certainly change the balance between the border control centralizing and decentralizing currents in the EU.
But centralization and standardization of the border control systems might serve as a model on which the centralizing currents within the EU might built a centralizing pyramid in other fields too. One thing is sure, no united Europe without freedom of movement within its borders, no freedom of movement without standardized border control, no standardized border control without centralized organisational systems. How far it will go it is hard to say. It depends on the balance of the political powers within the EU. But if the centralizing powers succeed why should they stop on the border control.
Or maybe we shall have another of many unprecedented compromises which we have already seen in the EU history.         

originele vindplaats:

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