1. The Concept of the Schengen
For the establishment of a common market, the abolition of any obstacles on the mobility of people was deemed to be a necessary pre-condition (Carrera, 2005, p. 700). According to Gogou (2006, p. 2) there are two parallel and competing methods for achieving the free movement of persons: the intergovernmental cooperation and the community approach.
Member States introduced informal regular structures for the exchange of information on internal security problems since the mid-1970s (Gogou, 2006, p. 2-3). As a first step, the member states developed the structure of Terrorism, Radicalism, Extremism, and International Violence Group, or TREVI Group. It was set up in 1975 and comprised interior and justice ministers as well as police chiefs (Edwards & Meyer, 2008, p. 8). It was initially a forum for exchanging information regarding organised crime and terrorism (Casale, 2008, p. 50). The TREVI Group lasted until 1992, when it was replaced by the provisions of the Maastricht Third Pillar involving immigration and asylum, policing, customs and legal co-operation (Casale, 2008, p. 50).
On the other hand, intergovernmental co-operation between EU Member States regarding issues of external border security started in a systematic way in the second half of the 1980s within the Schengen context (Monar, 2006, p. 193). France, Germany, Belgium, Luxembourg and the Netherlands decided to create a territory without internal borders in 1985 (Haider, 2002, p. 473). The purpose of the Schengen Area was to bring people closer together in a Europe without visible internal borders. The aim was to allow for the free movement of people and goods by removing all controls at the common borders of the participating states (Batt, 2003, p. 5-6). The Schengen Agreement increased the freedom of movement of people between countries that have implemented the agreement by abolishing passport controls; in addition, visitors to the Schengen Area require only one visa that is good for all Schengen countries (Bogdanyi & Lewis, 2008, p. 1).
On the other hand, the EU set up a ‘three-pillar’ system of decision-making under the Maastricht treaty (1992). The first pillar contained the EU’s single market and other policy areas where the European Commission has the right to draft laws (Brady & Barysch, 2007, p. 5). The Maastricht Treaty created the Common Foreign and Security Policy (CFSP), as the 2nd pillar and the inter-governmental Justice and Home Affairs (JHA), as the 3rd pillar of the EU (Bomberg & Peterson & Stubb, 2008, p. 2). The third pillar, for JHA, originally covered EU cooperation in four policy areas: policing, criminal justice, immigration and asylum, and border management (Brady & Barysch, 2007, p. 5).
The actual Schengen Convention was ratified in June 1990 and came into effect in March of 1995, by which time several other states had agreed to the EU framework including Italy, Spain, and Portugal (Michael, 2008, p. 3). The Convention contained more general provisions on police cooperation, extradition, other issues of criminal justice cooperation, on narcotic drugs, firearms and the Schengen Information System (SIS) (Gogou, 2006, p. 3).
SIS was established in the Schengen Convention (Title IV). The SIS came into effect in 1995 (Michael, 2008, p. 3). The SIS was developed to enable the authorities designated by each Member State to have access by an automated search procedure to alerts on persons and property for the purpose of border checks and other police and customs checks (Carrera, 2005, p. 7). Member states supply information to the system through national networks (N-SIS) connected to a central system (C-SIS), and this IT system is supplemented by a network known as SIRENE (Supplementary Information Request at the National Entry) (Rowan, 2009, p. 237). In 2001 SIS was expanded into SIS I+ in response to the inclusion of the Denmark, Sweden, Finland, Norway and Iceland, and in 2007 SISone4all was put in place to manage the enlargement of the Schengen Area to encompass nine of the countries that acceded to the EU in 2004 (Czech republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia) (Parkin, 2009, p. 4). Second generation of the SIS II is currently under development under the responsibility of the European Commission. Its deployment is currently planned in the first quarter of 2013 (Hartmann, 2010, p. 5).
Monar (2006, p. 193) points out that Schengen system was based on the idea that common standards, procedures and even certain common instruments such as the SIS.
Intergovernmental cooperation had advantages for Member States. They could escape any form of political control by the European Parliament (Gogou, 2006, p. 3-4) and jurisdictional control of the European Court of Justice or other social actors (Rosonow, 2009, p. 141).
2. The Integration of the Schengen Acquis into the European Union
Schengen Acquis was transferred into the European Union framework on 1 May 1999 with the Treaty of Amsterdam, the “Schengen area” was expanded step by step beyond the original five member states (Lavenex, 2009, p. 1). Indeed external borders policies were transferred from the Third Pillar to (First Pillar) Title IV TEC named “Visas, asylum, immigration and other policies related to free movement of persons” (TEC Articles 62-69). Therefore, these matters therefore do not belong to national policies and legislation at the individual level (Tanguay & Therrien, 2010, p. 4).
The Treaty of Lisbon of 2009 significantly amended the provisions of the articles in Title IV TEC, renamed the title to “Area of Freedom, Security and Justice” and introduced into EU primary law the concept of an “integrated management system for external borders”. Articles 77-80 TFEU replaced Articles 62-69 TEC as the legal base for any measure dealing with visas and borders (Hartmann, 2010, p. 1). Article 77 (ex Article 62 TEC) provides the absence of any controls on persons, whatever their nationality, when crossing internal borders; carrying out checks on persons and efficient monitoring of the crossing of external borders; and the gradual introduction of an integrated management system for external borders.
This development was crucial. According to Gogou (2006, p. 4) the Amsterdam Treaty put an end to the competition between intergovernmental cooperation and community approach for the implementation of the Schengen rules.
The integration of the Schengen into the EU framework has resulted in special arrangements for three EU member states. The UK and Ireland had specific protocols which allow them to opt out of EU common policies concerning Schengen and the area of freedom security and justice (Duff, 2008, p. 5). The reasons for opt out; that the UK, as an island, has a comparative advantage in the field of border politics. Therefore, the government maintains that based on its geographic location the UK’s immigration control is reduced to certain main ports of entry such as airport, seaports, and the Channel tunnel. Joining Schengen would mean significant changes in UK border politics (Wiener, 1999, p. 446). “British governments maintains that police-free borders would be tantamount to throwing open the door for international criminals” (BBC, 1997). However, these countries have possibility to opt-in at a later stage, adopt and implement certain or all of the Schengen clauses at any time on the basis of an enabling Council Decision (Gogou, 2006, p. 6-7). At the same time, the UK and Ireland participated in the Schengen aspects that are not related to border control, such as the SIS with the exception of alerts relating to third country nationals (Parkin, 2011, p. 4).
On the other hand, Denmark is a member of Schengen, but has a special arrangement. The Protocol on the Position of Denmark grants this Member State an opt-out from Title IV TEC which is in substance and procedures very similar to the British and Irish. However, Danish case is obviously more complicated because Denmark is a member of Schengen. Denmark has six months time to decide whether it will implement any Council decision building on the Schengen Acquis into national law (Monar, 1999, p. 12-13). Gogou, (2006, p. 7) claims that the effect of this regime is clearly to bypass the jurisdictional control of the European Court of Justice, and has an impact on community law in the area of the implementation of the Danish decision to opt-in.
On the other hand, candidate states were not being offered the opportunity to negotiate similarly flexible arrangements like the UK, Ireland, and Denmark (Grabbe, 2000, p. 503). Poungh (2003, p. 648) stresses that new members have to comply with Schengen Acquis in full before benefiting from the advantages in terms of abolition of internal border controls and free movement of persons (as cited in Rowan, 2009, p. 237).
At present, 22 EU Member States and 3 Non-EU states are part of the Schengen Area. Belgium, France, Germany, Luxembourg, the Netherlands, Portugal and Spain implemented the Schengen agreement in 1995. They were followed by Italy and Austria in 1997, Greece in 2000, and Denmark, Sweden, Finland, Norway and Iceland in 2001(Norway and Iceland are not in the EU). Nine more EU countries joined in 2007, after the EU’s eastward enlargement in 2004. They are: the Czech Republic, Estonia, Hungary, Lithuania, Latvia, Malta, Poland, Slovakia and Slovenia. Switzerland, which is not in the EU, implemented the agreement in December 2008 (BBC, 2011a).
There is no date yet for Cyprus, which joined the EU in 2004, or for Bulgaria and Romania, which joined in 2007. Bulgaria and Romania have to fulfil a series of requirements. Andorra, and San Marino are not part of Schengen, but they no longer have checks at their borders (BBC, 2011a). Liechtenstein signed a protocol on the accession to the implementation of the Schengen Acquis on 28 February, 2008. The official Schengen incorporation is expected in the second half of 2011 (Liechtenstein, 2011).
Schengen Area consists of 25 European countries, covering a population of over 400 million people and an area of 4,312,099 km? with 10,000 km? of land borders, 50,000 km? of sea borders and 1,792 official border-crossing points (Hartmann, 2010, p. 6).
3. Towards Integrated Border Management
Member States expressed the political will to reinforce their policy in particular for the management of external borders.
The Laeken European Council of 14-15 December 2001already recognised that ‘better management of the Union’s external border controls will help in the fight against terrorism, illegal immigration networks and the traffic in human beings (Hobbing, 2006b, p. 169). The Eurpean Council asked the Council and the European Commission to work out ‘arrangements for co-operation between services responsible for external border control and to examine the conditions in which a mechanism or common services to control external borders could be created’ (Council of the European Union 2001, Conclusion No. 42 of the Laeken Council.).
This represented a revolution, a first breakthrough, in EU-history, of Member States’ monopoly in implementing and enforcing EU legislation at the borders. (Hobbing, 2006b, p. 169). Commission called for a more “coherent strategy” on European border management and identified as a core element of the latter the creation of a European border guard. (Carrera, 2010, p.2). The conclusion of the European Council initiated a discussion on a new topic called ‘integrated border management. (Hobbing, 2006, p.1).
On the basis of the Council conclusions and in order to respond to the new challenge of the enlargement, a ‘Catalogue of recommendations for the correct application of the Schengen acquis and best practices for external border controls, removal and readmission’ was elaborated by the Council on February 2002. It is a practical instrument listing a series of measures for the correct implementation of the Schengen rules and dressing up a non exhaustive set of working methods for its optimal application. (Gogou, 2006, p. 11).
The Commission built upon the Council’s request and released a communication entitled “Towards integrated border management of the external borders of the member states of the European Union” on 7 May 2002. (Communication to the Council and the European Parliament, Brussels, 7 May 2002, COM (2002) 233 final, 28p). , this Communication proposed a gradual move towards an ‘integrated management’ of external borders, which would start with a consolidation and codification of common rules and standards for external border controls. (Monar, 2006, p. 195).It would continue, inter alia, with the creation of an ‘External borders practitioners’ common unit’ and various other co-operation mechanisms, leading then to financial burden-sharing mechanisms, and, finally, to a ‘European Corps of Border Guards’. (Monar, 2006, p. 196).
In a similar fashion, in June 2002 the Seville European Council on 21–22 June 2002 Council adopted the action plan for the (Carrera, 2010, p. 3). management of the external borders of the member states of the European Union,17 where for the first time it confirmed its political willingness to seriously consider the European Border Guard proposal. (Carrera, 2010, p. 4). In the action plan, the Council also stressed that this common corps would not be destined to replace national services but only to support them. (Carrera, 2010, p. 4).
European Border Guard was also presented as a key institutional tool to foster the principle of solidarity and a fair sharing of responsibility between the old and new EU member states. The initiative, however, was received with cold reactions by countries such as Poland and Slovenia, which expressed concern in relation to its potential impact over their national sovereignty and constitutional prerogatives. (Hobbing, 2006, p. 163). On the basis of the 2002 Action Plan significant progress has been made towards the ‘integrated management’ of external borders through enhanced operational cooperation and coordination between national border guard forces, institutionalisation of the cooperation process regarding external borders, and burden-sharing in the domain of external border controls. (Monar, 2006, p. 200).
According to Monar (2006, p. 196) there are different possible models for a European Border Guard, which are ultimately based on different political concepts on how far ‘integration’ should go in the area of external border controls. These models can be summarised as follows: (Monar, 2006, p. 196).
The first model – which may be called the ‘integrated force model’ – would involve the creation, surely only in a longer-term perspective, of an integrated border guard force under the authority of the Council. It would have a common command structure and common training and equipment standards, financed through the EU budget. It would also be vested with full law enforcement powers at external borders, partially or (eventually) totally replacing national border police forces. (Monar, 2006, p. 196-7).
The second model – which may be called the ‘network model’ – would mean the creation of a European Border Guard as a network of national border guard units. According to this model units would continue to exist as separate national forces, but they would be subject to common instructions issued by a Council body and based on common training and equipment standards. Certain parts of the national border guards could be trained and equipped to constitute a contingency reserve (or ‘rapid response force’) consisting of national units able to merge into joint units, and capable of being deployed at particular ‘hot spots’ at external borders upon request and approval by the Council body. (Monar, 2006, p. 197).
It appears that the first model would be the most easy and efficient. However, it is believed that would be the most difficult to implement. According to Monar (2006, p.197) there are political obstacle. Most Member States are reluctant to create any supranational body in the law enforcement field, and to confer law enforcement powers within their area on officials from other Member States. Also the new Central and Eastern European Member States got back their full national sovereignty only at the end of the Cold War, most of these new Member States are wary of the creation of further supranational structures at the EU level restricting their sovereignty. The integrated force model would require considerable changes to national legislation, and constitution.
An integrated force would need to be created through the merger of national forces, which up to now are marked by major differences in terms of tasks, structures, training and equipment. Integrated border guard force will cause the language problems. The UK House of Lords report (2003) highlighted the “danger of misunderstanding as a result of languages and other differences”. (Carrera, 2010, p. 5).
On the other hand, the second ‘network’ model would clearly be easier to implement. Under the network model (Monar, 2006, p. 198). However, according to Monar (2006, p.198) there are number of specific problems with the network model of a European Border Guard. Under this model, national forces would continue to exist. Therefore the effectiveness of the network would heavily depend on all of these separate forces implementing external border control standards and procedures as uniformly as possible in line with the common guidelines issued by the Council body. Also Member States are most likely to resist any major changes to their national services in charge of border controls, especially if these are perceived to be costly and contrary to well established national traditions. (Monar, 2006, p. 198). However, this model would require a major effort in training, language learning and standardisation of equipment.
The Greek Presidency at the European Council in Thessaloniki in June 2003, the Member States agreed, on 16 October 2004, on the establishment of an Agency for the Management of Operational Cooperation at the External Borders (Treaty Establishing a Constitution for Europe 2004). (Monar, 2006, p. 204).
FRONTEX Agency was set up in order to promote integrated border management. (Jorry, 2007, p.8).
The EU acquis on external borders, and its IBM, are now part of the main legal, institutional and financial foundations. Since 2005, Frontex has been in charge of coordinating operational cooperation among the border services of the EU member states.42 (Carrera, 2010, p.8)
One year later Frontex’s activities were complemented by the adoption of the Community Code on the rules governing the movement of persons across the borders (the SBC),43 which offers a more transparent and common set of harmonised rules and procedures for crossing the external borders of the EU.44 This has been accompanied by the adoption of the external borders fund in 2007,45 which has been politically presented as a key component of the principle of solidarity on (Carrera, 2010, p. 8) border controls in an enlarged EU by financing border-crossing infrastructure, equipment and projects as well as the exchange and training of staff. (Carrera, 2010, p. 9).
The SBC has also codified a common European understanding of the ways in which border controls should be carried out across the Union, which has had deep repercussions regarding ‘who’ is to be considered a border guard and the kinds of activities and tasks falling under the scope of external border controls in Europe. (Carrera, 2010, p. 9).
ConclusionConsequently, IBM rules cannot easily be located within just one framework; they are spread across a number of legal and administrative instruments. They represent a multi-layered compilation of provisions, with only the basic ones found in formal legal texts such as the Treaty on the European Community or the Schengen instruments of 1985-90, while much of the rest has been adopted through informal arrangements, e.g. the Common Manual on external borders adopted by the Schengen Executive Committee (Council of the European Union, 2002a) and the Catalogue of Best Practices drawn up by the Working Party on Schengen Evaluation.17 (Hobbing, 2006, p.165).
