FECL 43 (April/May 1996):

NORWAY AND SCHENGEN: LOVE IT OR LEAVE IT

Since 1 May, the five Nordic countries applying for membership of the Schengen group are participating in the work of all Schengen bodies as observers. At its meeting in The Hague on 18 April, the Schengen Executive Committee (Committee of Ministers) adopted guidelines for the cooperation agreements with the two non-EU candidate countries, Norway and Iceland. According to the guidelines, the two countries have only one option, if they fail to approve decisions taken by the Executive Committee: leave the Schengen group.

The guidelines with regard to the institutional framework for the cooperation agreements between the Schengen states and Norway and Iceland were drawn up by the Schengen Central Group (Committee of senior officials of the member states) and consist of five points:

1. Norway and Iceland will participate in all meetings of the various Schengen bodies. In all these meetings, the delegates of the two countries may state their views and particular interests, but have no right to vote.
2. Norway and Iceland decide freely on whether they want to approve decisions of the Schengen Executive Committee. When they approve decisions, the latter must also be applied by the two states.
   2a. Decisions accepted by Norway and Iceland create legal rights and obligations between them and the Schengen states.
3. Whenever the Executive Committee is to take a decision that Norway or Iceland might oppose, the Executive Committee shall take into account the two countries' positions before deciding.
4. Whenever new EU regulations replace provisions in the SIC binding Norway and Iceland, the two countries shall inform the Executive Committee on whether they will apply the new regulations.
5. If Norway or Iceland do not accept a decision of the Executive Committee or new EU-regulations, cooperation between the Schengen states and Norway and Iceland will cease pursuant to a procedure to be specified in the cooperation agreements.

In short, this means that Norway and Iceland will have no right to vote and that their refusal to accept just one decision of the Schengen states will result in their exclusion from Schengen cooperation as a whole. This should be compared against the right of every EU member state participating in Schengen to veto decisions of the Executive Committee.

Pressed by strong criticism at home against the planned cooperation agreement, the Norwegian Minister of Justice, Ms Grete Faremo, passionately defended the government's Schengen plans as a necessity in a speech to parliament on 24 April. Any other policy would result in the creation of strictly controlled external borders between Germany and Denmark, or between Norway and the other Nordic countries, Ms Faremo claimed, and she insisted that Norway will fully participate in preparing and drawing up Schengen decisions. In what seems to be an attempt to reassure the parliament, she further emphasised that the decisions of the Executive Committee have binding character only for the state, and not supra-national effect in the state. "The measures enter into force, when all parties of the Convention have notified that the necessary adoptions of national legislation have been made".

The Executive Committee must take all its decisions unanimously, the Minister said. Thus, according to Ms Faremo, The member states' positions "will essentially be settled through the discussions preceding a final decision".

Ms Faremo stressed that a situation, where Norway or Iceland could not approve a measure of the Executive Committee was "extremely unlikely" to arise. "It is inherent in the nature of consensual approach that the parties seek and find solutions with regard to which their is broad unity . . . I find it difficult to imagine a political situation where a decision that has been thoroughly prepared in bodies in which Norway participates, and that is acceptable to all Schengen states, including Denmark, Sweden and Finland, would not be acceptable to Norway".

Ms Faremo further emphasised that the three Nordic EU member states (Denmark, Finland and Sweden) are in any case bound by measures decided by the EU, such as for instance the list of countries whose nationals are subject to the visa obligation. Regardless of whether Norway joins Schengen or not, "it will prove difficult in practice to run a visa policy in the long term that differs significantly from what is valid for our Nordic neighbour countries".

Observer status

According to the SIC, observer status can be granted only to EU member states. One could have expected this to pose some problems with regard to the participation of Norway and Iceland in the meetings of the various Schengen bodies. However, the solution found shows that where there is a will, there is a way. Indeed, the Executive Committee decided in The Hague to grant "observer status" to Denmark, Finland, and Sweden, while it "invited" Norway and Iceland to participate in the Schengen bodies "as observers". According to the official press communique on the Executive Committee's meeting in The Hague, this formula implies "the unrestricted participation of all five Nordic states in the Schengen bodies".

Agenda for Nordic membership

The Nordic states and the Schengen group hope to conclude final negotiations before the end of 1996. As soon as the Convention is signed by Denmark, Finland and Sweden, Norway and Iceland are expected to sign their cooperation agreements. The agreements will then have to be ratified by the parliaments. The cooperation agreements with Norway and Iceland can enter into force only once parliaments in all five Nordic countries have ratified the texts.