TEPSA Guest Lecture: “The Schengen agreement under discussion”, Centre d’études et de recherches européennes Robert Schuman, 6 November 2012

On November 6th, 2012, TEPSA, the Robert-Schuman-Centre for European Studies and Research (Luxembourg) and the Luxembourg Representation of the European Commission organised a TEPSA guest lecture at the European House in Luxembourg City. More than 35 people were welcomed in the “Joseph-Bech-Room” by the TEPSA Affairs representative of the Robert-Schuman-Centre. Among the distinguished guests there were foreign ambassadors to Luxembourg, different members of the diplomatic representations in Luxembourg, the Attorney General of Luxembourg, professors and students from the political science department of Luxembourg University, civil servants from Luxembourg-based European institutions, administrators from the Luxembourg government, lawyers, political science and history teachers as well as a politically-interested public audience. The Luxembourg-based European Affairs monitor called Europaforum, an internet publication, provided a report on the lecture to an even larger public. The vehicular language at the conference was French, which promoted a very open and fruitful discussion with the lively participation of the entire audience.

Professor Virginie Guiraudon, Professor at the Paris University Sciences Po, an

Professor Virginie Guiraudon
Professor Virginie Guiraudon

d Raoul Ueberecken, Luxembourg’s permanent representative in Brussels on behalf of the Luxembourg Ministry of Justice, had been invited to enlighten the audience on why the Schengen agreement is currently under scrutiny.

Mrs Guiraudon, first and foremost, focussed her lecture on the Schengen method. This method was founded in 1985 and is at the basis of all the regulations that have transformed the policies defining the entry onto Schengen territory. She underlined that, in opposition to a generally-received opinion, one should not confuse the idea of the abolition of border controls at the internal borders of Schengen countries with the concept of free circulation of people within the Schengen territory.

To Virginie Guiraudon, the Schengen method is a “trans-governmental,” or even “trans-ministerial, cooperation,” which originates in the objective to abolish internal borders. It develops a whole series of different compensatory measures which will protect the external borders, improve relations with neighbouring countries and, within this framework, develop visa policies and initiate cooperation between the police and the justice departments.

This cooperation has been developing ever since 1985 when the first agreements were signed. At that time a coalition of EU member states had gathered outside the framework of the community and decided to negotiate an agreement, which is today known as Schengen, an agreement, which was, however, later on integrated into the community framework. This group of European States decreed rulings – the agreements of Schengen of 1985 and 1991, and the 2005 Prüm Agreement. A nation that wants to be part of this group must be prepared to comply with those rules, which were later integrated into the so-called acquis communautaire of the European treaties. To start with, parliamentary control of those agreements was virtually nonexistent. However, with the integration of the Schengen acquis into the European agreements, this changed, but unfortunately only partly, as the most recent crisis between the Council and the European Parliament (June/July 2012) based on the legal aspects of the Schengen Evaluation Mechanism (SCHEVAL) has shown.

Professor Guiraudon was wondering if Schengen was a success story considering the increasing number of asylum seekers. According to her, the ways the rules are being applied within the Schengen territory will have to be re-evaluated. She is not at all convinced that the abolition of internal borders will work if, for instance, there is no harmonisation of the way one handles the visa policy.

For example, there are very big differences to the ways the French, Belgian or Dutch consulates grant a visa in Morocco. There are also very big differences to the ways police officers in different Schengen countries use and contribute to the Schengen Information System (SIS).

The evaluation of the implementation of Schengen is crucial. Finally, Professor Guiraudon stresses that the accent should no longer be put on the East –West flux. In the present “hard” times one should also seriously consider other types of migration such as a noticeable south-north movement and migration from the Caucasian regions.

Raoul Uebercken
Raoul Uebercken

Raoul Ueberecken, who has a lot of practical experience in that field, does not see the Schengen discussion from an academic point of view but from a practical angle. In fact, he teaches politics and administrative law at the Luxembourg Civil servants Law School (INAP) next to being a senior adviser to the Luxembourg minister of Justice in European matters and in particular in matters of JAI (Justice and Home Affairs). He is based in Brussels.

Ueberecken confirms, what Prof Guiraudon has already expressed, this special “club”- nature of the operational aspect of the Schengen agreement. Schengen has created a whole codex of rules concerning the asylum and the immigration policy. Raoul Ueberecken, furthermore, elaborates on the agencies and funds in relation with the Schengen agreement: the FRONTEX agency, the SIS II, the Schengen Information System of the second generation, the Visa database allowing member states to update and check visa-related information, EURODAC, a system allowing to check fingerprints off illegal immigrants and asylum seekers, and the Border Fund. For Ueberecken, all this means a high level of operational and executive cooperation.

In his second part, Raoul Ueberecken deals with the current crisis and the possibilities of a reform of the Schengen system.

In a first instance he recalls the very beginnings of the crisis in early 2011 at the moment when the Arab Spring started in Tunisia. At that time Berlusconi’s government was confronted with a huge wave of refugees stranded on the beaches of Southern Italy and Lampedusa. In order to cope with this unexpected problem, which created political unrest, the ruling government coalition in Italy agreed to deliver laissez-passer papers to these immigrants allowing them to cross the French border within the Schengen territory. The Sarkozy government in France, coming up to the 2012 election, was not happy about this and reinforced its border controls, especially on the border with Italy, to prevent the Tunisian refugees from entering France.

Many European governments, like the Dutch one, with the Geert Wilders party, were confronted with the surge of right wing or populist political movements in 2011. In this context, an increasing number of illegal immigrants would not have been helpful to reverse this current. This meant that Schengen candidate countries like Bulgaria or Romania, which already fulfilled all the criteria necessary to enter the Schengen area, were prevented from becoming full members as Germany and France refused to give their agreement. The true, not openly expressed, reason of this reaction is obvious: If Romania and Bulgaria joined the Schengen area, an uninterrupted land bridge between the Turkish-Greek border and Western Europe would be established. Security experts consider the Turkish-Greek land border as “the” uncontrolled entry hot spot for all illegal immigrants from Asia and Africa anyway.

In his third part, Ueberecken gave his view on the evolution of the current crisis of the Schengen agreement.

In June 2011 the European Council issued new proposals on how to solve the current crisis by, for example, introducing a migration clause which could allow internal border control.

From September 2011 to June 2012 the Commission negotiated with the Council and finally made some new proposals, although these did not get a unanimous approval of the Council. The evaluations within the SCHEVAL framework span the whole chain of control from visa policy over police cooperation data protection to an absence of internal border control. The Council, according to Ueberecken, wants to stick to this acquis. Thus the importance of the Council’s role is reinforced in the evaluation mechanism to the detriment of the Commission’s role. An important new element is going to create a lot of problems: Article 70 of the TFUE (Treaty on the Functioning of the UE) gets a different legal basis. This article was especially conceived for evaluation mechanisms which had to undergo the ordinary legislative proceedings – the co-decision- which includes the European parliament by special proceedings, which need a qualified majority vote in the Council, but excludes the Parliament.

In July 2012 a major clash between the European Parliament and the Council shocked many experts and observers. To Ueberecken, the reaction of the Parliament was like “much ado about nothing.” The imminent summer holidays, the results of the French and the Dutch elections, which created new political landscapes, finally calmed things down. But there is still no good news for Romania and Bulgaria, since the old members can still play within the SCHEVAL framework. They hang on to their exclusive “club” mentality; so they still have the possibility to exclude Romania and Bulgaria from full membership as long as they like.

Thus, the question at hand is: Is the reform of Schengen really dead or is there another reform on its way? Should the Schengen political steering be reinforced? Should the FRONTEX agency be transformed into a full-scale border police corps of the Union? Should one eliminate at last the incoherent Dublin agreement and EURODAC and find a fairer burden- sharing solution for the asylum seekers’ problem? The current situation is far too unjust because the bordering states have to cope with most of the migration problems by themselves.

Finally, neither a common European migration policy nor harmonized rules about issuing working permits are in sight.