Mr. Wouter VAN DE RIJT

General Secretariat of the Council of the European Union
Directorate General H - Justice and Home Affairs

The Implementation of the Schengen Acquis:
Its Impact on Border Controls and Immigration Policies in the Candidate Countries

Lecture in the International Seminar for Experts "EU Enlargement Preparing for Accession", organised by the Cicero Foundation in the series Great Debates in Paris, 10- 11 October 2002.

Disclaimer: this speech solely reflects the personal views of the author and does not commit the institution he belongs to.

Introduction

Congratulations to the organisers of the Conference: this is the appropriate moment, one day after the Commission has made public its Strategy Paper 2002 with a view to the Enlargement and just 3 days before the JHA Council with the Candidate countries, in Luxembourg, on 14 October 2002.
Today, I want to address with you the two topics, which I consider to be the two key issues in relation with Schengen and the Enlargement:
A) The content of the Schengen acquis, by detailing between those parts, which are considered to be applicable in respectively the first and the second phase
B) The specific procedures leading to the implementation of all these parts of the Schengen acquis.

Content of the Schengen Acquis

1. The basic rules as far as the content of the Schengen acquis is concerned has been formulated in the so-called Schengen protocol, added to the Amsterdam Treaty and being an equally binding instrument as the other parts of the Treaty. Article 8 makes clear that candidate countries must accept the Schengen acquis in full.

This distinguishes clearly the candidate countries from other current Member states. The UK and Ireland, for instance, are not obliged to accept and implement all parts of the Schengen acquis. Measures, which are unacceptable to them, like the abolishing of the internal borders or the common visa policy, may remain outside the scope of their partial implementation of the Schengen acquis, according to the articles 4 and 5 of the Schengen protocol:

This is, like the separate position of Denmark (cf. article 3) with regard to the First Pillar acquis, not the purpose of today's presentation. We should keep in mind that what is at stake in the case of the candidate countries concerns the full application of the Schengen acquis.
Thus, the basic statement about the full application of the entire acquis has been detailed as follows in the so called Common Positions as regard the candidate countries: The Common Positions, which the Union has prepared in order to mandate the Commission to conduct the negotiations, provide some details on what is understood by the full acceptance of the acquis.

These Common Positions provide that upon accession
- A high level of border control will have to be achieved
- Furthermore, the candidate countries are required to
a) accept in full on accession the JHA provisions and the working practices designed to give them effect.
b) in respect of Conventions and other instruments, undertake to accede to them or, if under negotiation, accept the points which have been agreed upon.
c) accept on accession joint actions and joint positions as well as resolutions, decisions and statements.
d) introduce administrative and other arrangements, as is necessary to effectively implement the acquis.
e) bring institutions, management systems and administrative arrangements up to Union standards.

The Schengen Action Plan

After this sort of opening statement on the prerequisites to successfully conduct the negotiations,
the candidate countries were invited to establish, as soon as possible, a so called Schengen action plan.

This Plan was meant to display the complete understanding of what is required for full implementation of Schengen, to display some real and concrete results already achieved and a detailed verifiable programme for the adoption and implementation of the rest.

A Schengen Action Plan addresses in a detailed manner the measures set out by the authorities of the candidate countries, by going through in a precise manner the main chapters which form part of the acquis.
I invite you to have a look at the content of the Schengen acquis, during which we will distinguish between the measures in the first phase and in the second phase.

1. Abolition of checks at internal borders and protection of external borders

• Crossing internal borders (article 2)
• Separation of internal and external borders

1) Legislative amendments to:

• Implementing acts to the Border Guard Act Due to actions undertaking within Schengen action Plan the following implementing acts connected with the Act have been amended:
  • Regulation of the Minister of Interior and Administration on the way of conducting border control, personal control, searching luggage, checking loads in ports and railway stations and other means of communication by the Border Guard officers
  • Regulation of the Minister of Interior and Administration on territorial range of border crossings and way and conditions of crossing the state border and the way of performing the border duty and conducting border operations
• Amendments to international agreements on border co-operation, common state borders, relations on such borders.

CROSSING EXTERNAL BORDERS

Article 3 (crossing of external borders)
Article 5 (conditions for entry, excluding para 1. d)
Article 6 (common standards for external border control)
Article 7 (co-operation and information exchange connected to external border control)

The EU Common Positions define two essential elements of high level of external border control:
1) all persons crossing the external borders are checked in a systematic way and
2) effective border surveillance is ensured between authorised border crossing points. However, there is no fixed list defining the practical measures relating to "a high level of external border control" to be achieved at the moment of the EU accession.

The Union has practically no other acquis concerning external border control other than the Schengen acquis. Therefore the guidance for interpreting the notion "a high level of external border control" has to be sought from there, while appreciating that it is partly a political notion.

The basic requirements for effective external border control can be found in Chapter 2 of Title II of the Schengen Convention and the so-called Common Manual on external borders. Besides these specific rules it is a task of the Schengen Evaluation working group to specify certain criteria and requirements, including the requirements related to external border control, to be fulfilled before the internal border controls can be lifted. These criteria and requirements would not be directly applicable to the current enlargement process as they are formulated on a case-by-case basis, taking into account the specific characteristics of the country (including geographical situation) to be evaluated. In addition the Schengen Evaluation Working Group has a role in drawing up recommendations and best practices.
In that context, new Member States should take into account the recommendations and best practices which are being drawn up in the light of the on-going evaluation of the implementation and application of the Schengen acquis in the Member States.

Ideally, the external border control shall be conducted by professionals, trained for that purpose, with the help of equipment and sufficient facilities and in cooperation with the colleagues on the other side of the border. These characteristics will guarantee effective border surveillance as well as effective and smooth border crossing where the crossing is not subject to long queues, arbitrary treatment and corruption.

It is understood that full access to the Schengen Information System prior to the lifting of internal border controls is not possible for the new member states. Therefore the Member states will implement Article 5 (1) e) on the basis of international agreements and other arrangements on the exchange of information to which they are parties and with due regard to the provisions of the EU acquis, in particular the provisions regarding Europol and those concerning police cooperation (Articles 39 and 46 of the Schengen Convention). Furthermore the exchange of information under this provision will be in compliance with the relevant acquis provisions on data protection.

Upon accession, a sufficiently high level of border control will also be required on the temporary external borders while appreciating that special arrangements at these borders are justified, to tighten the cooperation between the future Schengen partners, in order to allow for a smooth transition when internal border controls will be abolished, and to avoid unnecessary investments. The border control system should be based on functioning cooperation with the authorities of the other side of the border. Practical cooperation models across the temporary external border should be accepted: for instance, everyone crossing the border is checked but shared infrastructure and removable and/or shared equipment could be considered, wherever possible, as well as joint patrols.

Such mechanisms, infrastructure and equipment offer a good basis for effective cooperation between relevant authorities working at the border even after the candidate countries in question have all acceded to the Union, especially to implement cross-border cooperation. In addition, for the "user's" point of view, these arrangements would facilitate the movement of people and goods as they would render the control procedures more simple and smooth.

Concerning the international ports and airports, there is no need to separate extra- and intra-Schengen passenger flows before the internal border controls are lifted. However, this question should be addressed in the Schengen action plan, in order to give a clear picture of the plans, including the financial implications and the timetable.

Finally, it should be emphasised that the current Schengen States will be responsible for the control of Schengen external borders until the internal border controls will be lifted vis-à-vis new Member States. However, after accession, the nationals of the new Member States would not any more be third country nationals who will have to fulfil all entry conditions required. For nationals of the EU Member States, a mere presentation or production of a travel document is sufficient.

2. Visa policy

Only one article in PHASE I
Article 13 (the quality of travel document to which a visa may be affixed)

Article 13 is related to the realising the requirement of a high level of border control. This article is a clear example of a provision which not only supports the application of Chapter 2 of Title II of the Schengen Convention but also the application of the EU regulations concerning the uniform format for visa and the common visa lists, which are to be applied upon accession.

PHASE II

• Visas for short-term stay (articles 9-17)
• Visas for long-term stay (article 18)
• Terms and conditions governing the movement of aliens (articles 19-24)
• Residence permit, alerts for the purposes of refusing entry and other measures (articles 25-27)

The common visa policy is one of the key elements supporting the high level of external border controls. However, most parts of the Schengen acquis concerning visa policy are so closely linked to the lifting of internal border controls that these provisions cannot be applied or it is not sensible to apply them before that time. For instance, the new Member States will not be issuing Schengen visas valid for travel in all Schengen States before the internal border controls are lifted. Therefore, they would not be implementing the EU provisions on the Schengen visa fees either. The new Member states could still be determining their own visa fees for some years. Nonetheless, by way of preparation for the lifting of internal border controls, the new Member States are encouraged to gradually bring their national visa fees into line with the EU acquis.

Concerning visa policy in general, it should be stressed first of all that although Schengen related instruments, the EU instruments concerning the uniform format for visa and the common visa list, are EU acquis that has to be accepted and implemented upon accession.

Although the new Member States would not be delivering Schengen visas before the internal border controls are lifted, they will have to ensure proper functioning of the visa issuing procedures as well as administrative management and organisation as from EU accession. Guidance for applying the visa procedures should be sought from the Common Consular Instructions and other secondary Schengen legislation.

ACCOMPANYING MEASURES

Article 26 - 27 (accompanying measures)
Carrier's liability, sanctions
Articles 26 - 27 contain measures intended to combat illegal immigration and can as such be applied independently from the lifting of internal border controls, thus upon accession. The Council has adopted in June 2001 a directive supplementing to provisions of Article 26.

3. Police co-operation

PHASE I

Article 39 (mutual assistance between police authorities for preventing and detecting criminal offences)

Article 44 (co-operation on telecommunications)

Article 45 (hotel registration forms for other EU nationals and non-EU nationals)

Article 46 (unsolicited communication of information and cooperation in matters relating to public policy and security)

Article 47 (bilateral agreements on exchange of liaison officers)

The application of Article 39 and some other articles relating to police cooperation is possible in the situation where the internal border controls have not been lifted. The possibility of bilateral agreements or agreements between neighbouring countries is foreseen at Article 39 (4) and (5). Even if Article 44 refers to transmission of information for the purposes of cross-border surveillance and hot pursuit, the candidate countries should prepare for future cooperation and develop possibilities offered by Article 44, e.g. voluntary agreements between Member States.

The cooperation possibilities provided for in Article 47 should be looked into. This article specifically concerns secondments, for specified or unspecified periods, of liaison officers to provide advice and assistance aimed at furthering police co-operation. Such agreements with candidate countries are already possible (Art. 47.4).

PHASE I - MUTUAL COOPERATION IN CRIMINAL MATTERS

Articles 48 - 53 (mutual assistance in criminal matters)

Articles 54 - 58 (ne bis in idem)

Articles 59, 61 - 63 and 65 - 66 (extradition)

Articles 67 - 68 (transfer of enforcement of criminal judgements)

The purpose of the above articles is to complement or specify the provisions of existing international agreements in these fields. These agreements are mentioned in the articles. In addition, there are several third pillar agreements between the member states: Convention on Simplified Extradition Procedures (1995), Convention relating to Extradition (1996) and Convention on Mutual Assistance in Criminal Matters (2000). The Member State agreements replace some articles of the Schengen Convention. All international agreements mentioned in the above articles and the Member State agreements have already been deemed agreements to which the candidate countries must accede upon accession.

PHASE I - NARCOTIC DRUGS

Article 71 (fight against illegal import of narcotics drugs and psychotropic substances)

Article 72 (seizure and confiscation of the proceeds of illicit trafficking in narcotics drugs and psychotropic substances)

Article 73 (controlled delivery for narcotics drugs and psychotropic substances)

Article 75 (transport of narcotic drugs and psychotropic substances for medical treatment)

Article 76 (measures for the control of narcotic drugs and psychotropic substances)

The articles concerning narcotic drugs mainly confirm what has been prescribed in the relevant UN Conventions. The candidate countries already have an obligation to accede to these Conventions.

FIREARMS AND AMMUNITION

Article 82 (firearms)

Article 91 (exchange of information on firearms)

Most of the provisions concerning firearms have been superseded by Community legislation. See Council Directive 91/477/EEC of 18 June 1991 on control of the acquisition and possession of weapons (OJ L 256, 13.9.1991, p. 51) and Commission Recommendation 93/216/EEC of 25 February 1993 on the European firearms pass (OJ L 93, 17.4.1993, p. 39) as modified by Commission Recommendation 96/129/EC of 12 January 1996 (OJ L 30, 8.2.1996, p. 47).

PROTECTION OF PERSONAL DATA

Articles 126 - 130 (protection of personal data)

Candidate countries should adopt the necessary national provisions in order to achieve a level of protection of personal data at least equal to that resulting from the Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data of 28 January 1981. Candidate countries should take into account Recommendation N. R (87) 15 of 17 September 1987 of the Committee of Ministers of the Council of Europe regulating the use of personal data in the police sector.. Candidate countries should also set up an independent supervisory authority for personal data.

PHASE II

Beside the main topics of phase II, i.e. External border (land, sea, air), Visa and SIS II, which have been addressed separately, one should mention the following issues:

POLICE COOPERATION

Articles 40 - 43 (cross-border forms of police co-operation)

Although the provisions concerning cross-border cooperation would be applicable after the lifting of internal border controls only, bilateral arrangements could be developed even before. Full application is a requirement for Phase II

SCHENGEN INFORMATION SYSTEM

Article 64 (SIS alert as a request for arrest)

Articles 92 -101 (acquis regulating the SIS)

The Schengen Information System (SIS) is regarded as one of the preconditions for the lifting of internal border controls. The system is one of the key compensatory measures to maintain public policy and public security, including national security, and to apply the provisions related to movement of persons within the EU/Schengen area. The SIS is not only used at border checks but also for internal police activities.

The reality is that a full implementation of the Schengen provisions immediately upon accession is most unlikely to be a practical possibility for technical and operational reasons. For example, a functioning Schengen Information System (SIS) is one of the most important preconditions for such a decision. Considering that the lifting of internal border controls is dependent on the timetable of the (second generation) SIS II, which is now estimated to be operational in the end of 2005 at the earliest, it is not realistic to imagine that any decision concerning the lifting of internal border controls will take place before that time. In addition, it should be taken into account that the Schengen evaluation process itself will take some time

It is useful for the candidate countries to create national databases for the purposes of Article 95 and 97 - 100 (police registers) and Article 96 (entry refused) so that they can easily be linked to an integrated information system and eventually connected to the N.SIS after accession. It is also essential to plan in advance the setting up of the SIRENE bureau.

Articles 102 - 118 (protection of personal data in the SIS)

The purpose of these articles is to ensure the security of data in the SIS. Upon accession candidate countries will have already adopted the necessary national provisions in order to achieve a level of protection of personal data required elsewhere in the acquis.

Article 119 (distribution of costs for SIS)

p.m.

4. procedure

The objective is thus to make the Schengen acquis an integral and "normal" part of the EU/EC legislation in the field of justice and home affairs. This means that the starting point is that the application of the Schengen acquis upon accession should be considered the norm, and that any postponement of implementing measures to the time when internal controls are in fact abolished, should be regarded as the exception

What's the way ahead ?

The development of the new generation Schengen Information System, known as SIS II, will
obviously be a prerequisite for progress in this regard. Once preparations are sufficiently far
advanced, the evaluation process can commence for Category 2 provisions. To this end, a
questionnaire will be submitted to each new member state, which will contain detailed questions
about all aspects of the implementation of Category 2 provisions.

1. The answers to this questionnaire will be carefully studied by the evaluation team (where necessary, supplementary questions may be put) in order to allow the Council to assess the ability of each new Member State to apply the Category 2 provisions correctly in practice. Once sufficient information has been gathered, inspection visits will be carried out in order to verify the adequacy of the preparations which have been made, as has been the case for every State in respect of which the Schengen acquis has been put into effect. (NPU-precedent)

2. Following the inspection visits, a report will be drawn up in respect of each new Member State, which will assess the readiness of each new Member State to put into effect the Category 2 provisions. The report may include recommendations to correct or improve one or more aspects of the preparations made by that Member State. Where weaknesses have been identified, it may sometimes be necessary to organise supplementary visits after a suitable period of time has elapsed, in order to ensure that such weaknesses have been remedied.

3. The final report of the evaluation team will be brought to the attention of the Council. It will then be for the Council to take the necessary decision authorising new Member States to put into effect the Category 2 provisions on the date or dates which it considers appropriate.

4. It is at this juncture too early to set out any tentative timescale for this process, since there are too many factors involved which may influence the timing. However, it is clear that as of the date of their accession the new Member States will be fully involved in the evaluation process. (Council Luxembourg !)

5. The procedures referred to in these guidelines are without prejudice to the application of any monitoring mechanism to be set up upon conclusion of the negotiations on the Accession Treaty regarding the implementation of the EU acquis which is to be applied by the candidate States as of the date of their accession to the EU.

6. I hope that I have been able to clarify both the content of the Schengen acquis and the complicated procedure leading to its full implementation.

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