The Schengen Agreement and the Convention Implementing the Schengen Agreement

Parties to the Schengen Agreement:

Austria, Belgium, Denmark, France, Finland, Germany, Greece, Iceland, Italy, Luxembourg, the Netherlands, Norway, Portugal, Spain and Sweden.

History and Development of the Schengen Agreement

On 14 June 1985 the Federal Republic of Germany, France, Belgium, Luxembourg and the Netherlands signed the Schengen Agreement (Schengen being a place in Luxembourg) on the gradual abolition of checks at their common borders.

On 19 June 1990 the Convention Implementing the Schengen Agreement was signed. Its key points relate to measures designed to create, following the abolition of common border checks, a common area of security and justice. Specifically it is concerned with:

  • harmonizing provisions relating to entry into and short stays in the Schengen area by non-EU citizens (uniform Schengen visa);
  • asylum matters (determining in which MemberState an application for asylum may be submitted);
  • measures to combat cross-border drugs-related crime;
  • police cooperation (hot pursuit);
  • cooperation among Schengen states on judicial matters.

The Convention Implementing the Schengen Agreement entered into force on 1September1993; its provisions could not take practical effect, however, until the necessary technical and legal prerequisites (such as data banks and the relevant data protection authorities) were in place. The Convention thus took practical effect on 26 March 1995 for the original Parties to the Schengen Agreement as well as for Spain and Portugal. Since 1995 Italy, Greece, Austria, Denmark, Finland and Sweden have acceded to the Convention, which only entered into force for the three Nordic countries on 25 March 2001. A Schengen cooperation agreement was concluded with the non-EU members of the Nordic Passport Union (Norway and Iceland) in 1996. Norway and Iceland have also fully implemented the Schengen regime since 25 March 2001.

Once checks at common borders are completely abolished, the holder of a uniform visa is entitled to stay in the above-mentioned 15 countries which apply the Convention Implementing the Schengen Agreement for a maximum of up to 90 days per six-month period during the visa's period of validity.

Key Points of the Convention Implementing the Schengen Agreement

  • Citizens of countries implementing the Schengen Agreement (see item 1) can cross the internal borders of the implementing countries at any point without checks.
  • A visa with no territorial restrictions (visitor's or business visa allowing the holder to stay up to 90 days per six-month period, transit or airport visa) granted to a third-country national by one implementing country entitles the holder, for the same purpose and for the duration of the visa's validity, to enter without border checks other implementing countries as well.
  • Any third-country national with a residence permit valid in one implementing country may travel on a valid passport, without requiring a visa, for up to 90 days per six-month period to other implementing countries.
  • Harmonized visa policies of Schengen countries (common list of third countries whose nationals require visas).
  • External border checks according to a common Schengen standard.
  • Access by all Schengen countries to the Schengen Information System (SIS) providing personal identity and other data throughout the Schengen area.
  • Close police and judicial cooperation.
  • Joint efforts to combat drug-related crime.
  • Rules determining competence for asylum procedures (now largely replaced by similar provisions in the Dublin Convention of 15 June 1990).

Incorporation of the Schengen Agreement into the European Union

As from 1 May 1999 the Schengen Protocol to the Treaty of Amsterdam of 2 October 1997 incorporated Schengen cooperation into the framework of the EU.

The European Community thus acquired competence for large areas of the Schengen acquis (the Schengen Agreement and the various provisions adopted in this context) as well as its further development. For Britain, Ireland and Denmark special arrangements have been made. Although Britain and Ireland are not parties to the Schengen Agreement, they can, with the approval of the EU Council, apply the Schengen acquis in whole or in part and participate in its further development. Denmark will decide on a case-by-case basis whether to participate, under international law, in the further development of the acquis and to incorporate into its national law also Community law developed without its participation.

The cooperation agreements between the implementing countries and Norway and Iceland respectively have been replaced by association agreements with the EU, very similar in content, concluded on the basis of the Treaty of Amsterdam.

For EU citizens and third country nationals living in the EU the Schengen Agreement has resulted in substantially increased freedom of travel and improved safety within the Schengen countries and at their external border.

Selected legal provisions relating to the Schengen Agreement

1. Agreement of 14June 1985 between the Governments of the States of the Benelux Economic Union, the FederalRepublic of Germany and the FrenchRepublic on the Gradual Abolition of Checks at their Common Borders: Joint Ministerial Gazette 1986, p.79 ff.

2. Convention of 19June 1990 Implementing the Schengen Agreement of 14June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the Gradual Abolition of Checks at their Common Borders (Convention Implementing the Schengen Agreement): Federal Law Gazette II 1993, p.1013 ff.

3. Act of 15July 1993 on the Schengen Agreement of 19June 1990 on the Gradual Abolition of Checks at the Common Borders: Federal Law Gazette II 1993, p.1010 ff.

4. Notification of 14June 1985 of the Entry into Force of the Convention Implementing the Schengen Agreement of 14June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the Gradual Abolition of Checks at their Common Borders: Federal Law Gazette II 1994, p.631 ff.

5. Treaty of Amsterdam of 2 October 1997 (Federal Law Gazette 1998 II, p.386).

The 1985 Schengen Agreement is an agreement between European states which allows for common immigration policies and a border system. A total of 26 countries – including all European Union states except the Republic of Ireland and the United Kingdom, but including non-EU members Iceland, Norway, and Switzerland – have signed the agreement and 15 have implemented it so far. Border posts and checks have been removed between Schengen countries and a common 'Schengen visa' allows access to the area, however the agreement does not cover residency or work permits for non-EU nationals.

The agreement was originally signed on June 14, 1985, by five European countries (Belgium, France, Germany, Luxembourg, and The Netherlands). The agreement was signed aboard the ship Princesse Marie-Astrid on the MoselleRiver, near Schengen, a small town in Luxembourg on the border with France and Germany.

Its goal was to end border checkpoints and controls within the Schengen area (also known as Schengenland) and harmonise external border controls. It was originally separate from the European Union (then European Community) but has since become an EU competence, although there are some non-EU members inside the Schengen area and some EU members outside.

Additional countries have since also signed the convention, bringing the total number of signatories to twenty-six.

Membership and implementation

The agreement signed in 1985 established the steps to be taken to create the Schengen area. An additional document, called the Schengen Convention (or more fully: Convention applying the Schengen Agreement of 14 June 1985 between the governments of the states of the Benelux Economic Union, the Federal Republic of Germany, and the French Republic on the gradual abolition of checks at their common borders), was created which put the Schengen area into practice. This second document replaced the first and was signed by each country on the dates shown below.

For each member country there has been a delay between signing the agreement (becoming a member) and actually implementing it.

Membership

June 14, 1985 Belgium, France, Germany, Luxembourg, Netherlands

November 27, 1990 - Italy

June 25, 1992 - Portugal, Spain

November 6, 1992 - Greece

April 28, 1995 - Austria

December 19, 1996 - Denmark, Finland, Iceland, Norway, Sweden

May 1, 2004 - Cyprus, CzechRepublic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, Slovenia (not yet implemented)

October 16, 2004 - Switzerland (ratified by referendum on June 5, 2005)

The Swiss vote yes to same-sex relationships and "Schengen/Dublin"[edit]

Exceptions

The following territories of the membership countries are not covered by the agreement:

Heligoland of Germany

Svalbard of Norway (But Jan Mayen Island is covered by the agreement.)

Greenland and the Faroe Islands of Denmark, although formally excluded from the Schengen area, are integrated with it. (It was laid down in the association agreement with Denmark that persons travelling between the Faroe Islands and Greenland on the one hand, and the Schengen Member States on the other hand, are not subject of a border check. The traditional Free Movement of Persons acquis of the European Community is not applicable to Greenland and to the Faroe Islands.)

Implementation

March 26, 1995 - Belgium, France, Germany, Luxembourg, Netherlands, Portugal, Spain

1997 - Italy (October 26), Austria (December 1). Greece (December 8) implements theoretically but in practice internal border controls continue until 2000

March 26, 2000 - Greece implements the agreement fully

March 25, 2001 Denmark, Sweden, Finland, Norway, Iceland

The ten countries who signed on May 1, 2004 are set to implement the agreement in October 2007. Switzerland also has to implement the agreement; therefore only fifteen countries are currently full members of the Schengen Agreement.

Each new country, before fully implementing the Schengen Agreement, will need to have its preparedness assessed in four areas: air borders, visas, police cooperation, and personal data protection. This evaluation process involves a questionaire and visits of EU experts to selected institutions and workplaces of the country under assessment. The Council of the European Union is scheduled to review the results between April and September of 2007. [1] [2]

Non-signatories of note

There are some countries other than the Schengen signatories that should also be mentioned:

San Marino, although not formally part of the Schengen zone, has an open border with Italy.

Regarding Monaco, which borders onto the Mediterranean Sea, the Schengen Agreement is administered as if Monaco were a part of France, with French authorities carrying out the Schengen checks at Monaco's sea port.

Liechtenstein is not yet part of the Schengen area; it has an open border with Switzerland (which has not yet implemented the agreement) but border controls are still carried out between it and its EU neighbours. As part of the European Economic Area it applies the Traditional Free Movement of Persons acquis of the European Community; Liechtenstein intends to adhere to the Schengen area and negotiations will start in the Autumn of 2005. [3]

The Vatican City has expressed a desire to join Schengen [4]. It already has an open border with Italy, but enforcing the Schengen Agreement will allow for closer cooperation in information sharing and similar activities covered by the Schengen Information System.

Andorra is not integrated into the Schengen zone and border controls remain.

Of these states only Liechtenstein has concluded agreements on the Traditional Free Movement of Persons with the European Community.

Agreement provisions

Before Schengen, citizens of western European countries could travel to neighbouring countries by showing their national ID card or passport at the border. Nationals of some other countries required separate visas for every country in Europe they wished to visit. A vast network of Border posts existed around the continent, disrupting traffic, trade and causing delays and costs to both businesses and visitors.

The Schengen Agreement removed border checks between participating countries. The Schengen Agreement also means that participating countries will co-ordinate their external controls. This is necessary since a person acceptable to one country but not to another can still enter both, if one admits him. For example, immigration policy must be agreed upon as immigrants can enter through the most relaxed border and make their way to less hospitable countries once within Schengenland unless entry criteria are homogeneous.

A country is permitted by the article 2.2 of the agreement to reinstate border controls for a short period if it is deemed in the interest of national security. This occurred in Portugal during the 2004 European Football Championship and in France for the ceremonies marking the 60th anniversary of D-Day. It was used again by France shortly after the London bombings in July of 2005 (This was despite the fact that the UK is not part of Schengen and the France-UK border controls were always in place. One of the bombers anyway managed to pass unimpeded through France, only to be arrested in Rome). Finland briefly reinstated border controls during the 2005 World Championships in Athletics that took place in Helsinki Olympic Stadium during August 2005.

The Schengen Agreement also includes consent to share information about people, via the Schengen Information System. This means that a potentially undesirable person cannot 'disappear' simply by moving from one participant country to another as each country will know the same about the person's background.

Previously, a criminal with police in hot pursuit would be safe once they managed to cross the border, but under the agreements of the Schengen Agreement police from one nation can cross national borders to chase their target.

The Schengen Agreement intends to harmonise the laws and regulations of several policy areas, in order to minimise the extent to which criminals can take advantage of the relaxation of controls. For example, the Dutch policy on drugs differs from the French policy, and a person could buy drugs in the Netherlands and transport them to France to sell on the black market. This is much easier when there are no border controls between the two countries. As a result of this particular difference in policy France insisted on maintaining border controls on people entering France from the Benelux countries for some time after the agreement was implemented.

Schengen and the European Union

All Schengen Agreement signatories except Norway, Iceland and Switzerland are European Union members. Two EU members (the United Kingdom and the Republic of Ireland) have opted not to sign the Schengen Agreement (see below).

The main reason for why the non-EU states of Iceland and Norway joined was to preserve the open borders agreement between the Nordic countries that has been in effect since 1952.

The Schengen Agreement was created independently of the European Union in part due to the lack of consensus amongst EU members, and in part because those ready to implement the idea did not wish to wait for others who were not ready.

The Treaty of Amsterdam incorporated the developments brought about by the Schengen agreement into the European Union framework, effectively making the Schengen Agreement part of the EU. Amongst other things the Council of the European Union took the place of the Executive Committee which had been created under the Schengen agreement. Future applicants to the European Union must fulfil the Schengen Agreement criteria regarding their external border policies in order to be accepted into the EU. The existing signatories who are not EU members have less opportunity to participate in shaping the evolution of the Schengen Agreement as a result of the Treaty of Amsterdam. Their options are effectively reduced to agreeing with whatever is presented before them or withdrawing from the agreement.

Despite the Schengen Agreement having been incorporated into the EU, it has not been voted upon by any EU institution. Because of this, there are some concerns regarding the democratic accountability of the agreement. Greece, prior to accepting and signing the agreement, raised questions about the legality of the Schengen Information System, and suggested that it represented a violation of privacy.

Additionally, the Schengen III Agreement was signed on 27 May 2005 by seven countries (Germany, Spain, France, Luxembourg, Netherlands, Austria, and Belgium) at Prüm, Germany. This agreement, based on the principle of availability which began to be discussed after the Madrid bomb attack on 11 March 2004, could enable them to exchange all data regarding DNA, fingerprint data of concerned persons and to cooperate against terrorism. Finland has also indicated an interest in joining. [5]

UK and Ireland

United Kingdom and the Republic of Ireland are the only two EU members not to have signed Schengen Agreement. The UK wishes to maintain its own borders and Ireland has a free movement arrangement with the UK (called the Common Travel Area) similar to the Schengen Agreement, so in order to maintain this it can only sign the Schengen Agreement if the UK does. Because of the island nature of the British Isles and also because neither country issues ID cards to their nationals, there would be relatively few benefits to joining the agreement (Denmark issues CPR (Central Person Register) numbers to its citizens for the government-provided services instead of national ID cards). Also the UK has historically been reluctant to relax border controls because of its strict rules on bringing live animals into the country—the British Isles are free of rabies unlike much of Europe.

Non-EU nationals living in the UK and Ireland would however benefit from the UK and Ireland joining the Schengen area, as they currently need to obtain separate UK, Irish and Schengen visas in order to travel within the EU. On May 29, 2000 the UK and Ireland began participating in the Schengen Information System.

Gaining entry

Member States of the Schengen area have elaborated uniform rules as to the type of visas which may be issued for a short-term stay, not exceeding three months, on the territory of one, several or all of those States.