The Schengen system of borderless travel across much of Europe faces many challenges, from the migration crisis to preventing crime and terrorism, writes Ester Herlin-Karnell. She argues that the system must be reformed to ensure that it is equipped to address these concerns, and that the reform process provides an opportunity for the UK in particular to engage and to increase its influence.
By Ester Herlin-Karnell
The
Schengen system of borderless travel across much of Europe faces many
challenges, from the migration crisis to preventing crime and terrorism, writes Ester
Herlin-Karnell. She argues that the system must be reformed to ensure
that it is equipped to address these concerns, and that the reform process
provides an opportunity for the UK in particular to engage and to increase its
influence.
Image
Attribute: Construction of barrier at the Hungarian-Serbian border.
Photo:
Wikipedia / Délmagyarország/
The Schengen
Agreement of 1985 and the idea of open borders may be one of the hallmarks of
European integration. However, in recent months the ideal of EU free movement
has been put under extreme pressure as a result of the migration crisis and the
need to fight terrorism and to monitor movement not only of those entering
Europe, but also within the Union as such.
The crisis of
the EU has fuelled a different but related crisis in the UK political arena:
the British referendum. Accordingly, in his recent
letter to European Council President Donald Tusk outlining the UK’s
options for staying in or leaving Europe, David Cameron gave an emphatic
British ‘No’ to the one-size-fits-all approach of EU harmonisation.
The UK
government’s main difficulties with the EU seem centred on two particular
aspects of integration: free movement rules in modern-day Europe and the
apparent overreach of the EU courts in expanding integration – the latter of
which it says must end. Yet the passport-free Schengen area has become one of
the tenets of Europe itself, despite the fact that it does not include the UK
and Ireland (which have opted out) and Bulgaria, Croatia, Cyprus and Romania
(which are candidates for joining).
The UK is of
course not a party to the Schengen Agreement, but Cameron’s concerns neatly sum
up what Schengen is about: free movement rights and no discrimination on the
basis of nationality. The UK will no longer be part of an ‘ever closer’ Europe,
nor will it support the EU’s current trajectory.
An article in
the Financial Times stated last month that: ‘If the Schengen accord
finally buckles under the weight of Europe’s migration and security crises, the
world’s biggest border-busting experiment will probably end as it began: with a
long traffic jam.’ This appraisal might be too hasty in predicting
Schengen’s downfall. What is really needed is a reform of the system to
adequately address future challenges.
In short, the
Schengen acquis has been, in different respects, both a
success story and a failure. It has been a vastly successful project in that it
has helped to create a European identity. Once you are in the EU you are at
home – the European fortress requires no border checks within its walls. At the
same time, it has also been a failure in that not all EU Member States have
opted to join in wholeheartedly.
You can even
go to non-EU members Switzerland, Norway and Iceland without a passport. Only
the UK and Ireland maintain intra-EU border controls by choice (Protocol No 19
to the Lisbon Treaty), although they still use the Schengen Information System
(SIS) for law enforcement purposes. Bulgaria, Croatia, Cyprus and Romania have
all yet to be approved to join Schengen, when the current members agree that
they meet the criteria. Moreover, Denmark is also in the Schengen area, despite
its otherwise complicated relationship with the EU.
On 3 December
2015, the Danes voted against the possibility of joining the policies
associated with the EU’s Area of Freedom, Security and Justice. How they can be
part of Schengen, but not part of EU criminal law and immigration cooperation,
may seem a mystery for anyone outside the Kingdom of Denmark.
In fact,
Schengen is about more than just freedom from passports, queues and traffic
jams. It has functioned as a means of regular exchange of information between
Member States in order to counter terrorism, cross-border crime and illegal
migration.
The SIS is the
most widely used information-sharing instrument today. Competent national
authorities can use it to check alerts on wanted or missing persons and
objects, both inside the Union and at the external border. The SIS was upgraded
in early 2015 to improve information exchange on terrorist suspects and to reinforce
the efforts of Member States to invalidate the travel documents of persons
suspected of wanting to join terrorist groups outside the EU.
Challenges
Ahead: Why the Schengen System Needs Reform
The increased
terror threat, coupled with the huge influx of migrants and refuges to Europe,
has put the EU’s open border policy under strain and fuelled a new discussion
on how it can be reformed. Member States such as Germany and Sweden, arguably
the two most liberal countries in accepting refugees and migrants, have
declared the need for exceptional measures and reinstated border controls.
In
circumstances such as these, is there any point to Schengen? The answer rests
in what Schengen could offer the EU and its citizens in addition to ease of
movement. To start, the EU already has many opportunities for cooperation which
are not fully implemented or used. For example, the Prüm Treaty framework, another European information exchange tool, is
not used to its full potential.
The Prüm
Treaty offers the possibility of automated comparison of DNA profiles,
fingerprint data and vehicle registration data – all of which are key to
providing evidence and detecting crime. Yet, as the European Commission noted
in its European Agenda on Security, published earlier this year,
the system is falling short of its potential because to date only a small
number of Member States have implemented their legal obligations and integrated
the network into their own systems. This is the price of flexibility – while
nation state-friendly, it can sometimes result in half-baked solutions to
pressing problems.
This raises
the prospect of whether free movement is an all or nothing endeavour. Perhaps
it is when it comes to security. The challenges facing Schengen should be seen
in the light of the merger of the migration acquis and the
EU’s Security Agenda at large, along with the new challenges of terrorism. The
point is that terrorism also encompasses online activity, not necessarily just
physical movement across the EU.
The Security
Agenda sets tackling the risk of radicalisation as one of its main priorities,
and that seems like a wise decision. But this requires more cooperation, not
less. Free movement, money and criminals go hand in hand. Add to this the
financial crisis and increased nationalistic sentiments across Europe, forces
which were already putting pressure on Schengen.
However, the
idea of open borders is the idea of the internal market, and it is the first
step to an Area of Freedom, Security and Justice. The real challenge will be to
maintain the spirit of European cooperation and free movement within the
internal market, integrated with a sophisticated intelligence system.
One may also
wonder if ‘smart’ borders (the EU’s goal for 2016) presupposes regular checks
anyway? The Commission will present the Border Package before the end of the
year. It aims to create a European border guard and to facilitate a more
effective EU entry/exit system, allowing authorities to trace the movements of
third country nationals across the EU’s external border. Yet in terms of the
external dimension, perhaps too much trust is place in a European passport.
In the
regulation of asylum seekers, the EU Court of Justice has made it clear that in
applying the Dublin System (which aims to ensure that one Member State is
responsible for the examination of an asylum application, to prevent multiple
asylum claims) a Member State cannot assume that an asylum seeker’s fundamental
rights will be respected in another Member State. EU countries will have to
ensure that they respect the fundamental rights of refugees. Yet this would
require increased solidarity across Europe.
The EU needs
more advanced intelligence, which does not engage in general snooping of its
citizens but can target criminal activity. But how can this be done?
Fundamental rights protections and the rule of law should lead the EU in all
its actions, and we cannot sacrifice these rights in a community based on
equality, freedom and high human rights standards. Nevertheless, the
intelligence methods used in order to identify those individuals who are
exploiting the system need to be robust.
The task for
the EU legislator then is to maintain its high fundamental rights standards as
set out in the Charter of Fundamental Rights, while securing fairness and
freedom, security and justice for all. Such a system seems to presuppose an
ever closer Union and that ‘closeness’ would require the UK, Ireland and the
others to be on board.
When times are
tough, the EU usually comes up with big agreements creating new names and
institutions. This is a real opportunity for the UK to take part in reforming
Schengen, enhancing its engagement in Europe and regaining some of its
influence. If it did, the new Schengen system might become known as the London
Agreement. If not, it could well be named after Berlin.
About The
Author:
Ester Herlin-Karnell, VU University Amsterdam
Prof Ester
Herlin-Karnell is Professor of EU Constitutional Law and Justice and University
Research Chair at VU University Amsterdam. She is Founder and Co-Director of
the VU Centre for European Legal Studies. Her research interests include EU
constitutional law and theory, European criminal law and the European Area of
Freedom Security and Justice.
Publication
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by the original publisher – “European Futures” on December 15,2015.
Please note
that this article represents the view of the author(s) alone and not European
Futures, the Edinburgh Europa Institute nor the University of Edinburgh.
