FECL 50 (March/April 1997):


The Schengen Agreements are increasingly being regarded as a possible model for "flexible" cooperation within the Union. The Intergovernmental Conference (IGC) is discussing a number of options, that allow an incorporation of the Schengen structures into the TEU (Maastricht Treaty), without taking the risk of the Schengen group's fast-track cooperation being stalled by vetoes of a small group of dissenting states. The magic words which will open the door to the incorporation of Schengen are "enhanced cooperation", "enabling clause" and "predetermined flexibility approach".

The incorporation of the Schengen acquis into the Union is "a gradual process which is already under way", according to a "non-paper" of the IGC of 4 February on "Schengen and the European Union".

Indeed, seven EU countries are already implementing the Schengen Agreements, while a further six EU states have signed them. Only the UK and Ireland have refrained from seeking Schengen membership. Britain is opposed to the "hard core" of Schengen policies - the abolition of controls at internal borders. Ireland has no choice but to follow the British position because of the common travel area between the two countries. Since the British opposition leader, Tony Blair, has made it clear that border controls in the UK would be maintained even in the event of a Labour victory in the forthcoming elections, the Dutch EU Presidency has given up earlier ideas of a "full incorporation", based on a full acceptance of the Schengen acquis by all 15 member states. Instead, discussions at the IGC are now concentrating on two approaches which will enable a "flexible" incorporation of Schengen policies into the TEU.


Two options for Schengen incorporation

The above-mentioned IGC non-paper describes two possible options.

Both options would make it possible for the Schengen member states to continue their cooperation without the participation of the UK and Ireland, but within the institutions of the EU.


Option A: "Enabling clauses" flexibility approach

Under this option the TEU would contain enabling provisions allowing for "enhanced cooperation" between particular groups of member states in each of the three pillars of the TEU. Thus, the 13 Schengen states would be authorised, through a procedure to be set up in the TEU, to establish a 'Schengen' enhanced cooperation among themselves within the EU. The scope of enhanced cooperation could comprise the whole of Schengen or parts thereof, and would be defined by the member states concerned when applying for authorization to set up a closer cooperation among themselves. The IGC non-paper notes: "Accordingly, this approach would not imply a prior identification of the relevant Schengen parts to be subject of flexibility nor of the specific (first or third pillar) flexibility clause to apply".


Option B: "Predetermined" flexibility approach

Under this option, the 13 Schengen countries would be authorised through a particular Schengen Protocol, attached to the TEU, "to have recourse to the institutions, procedures and instruments of the TEU for the purposes of adopting and applying among themselves the acts and decisions required to give effect to their Schengen cooperation, to the extent that such acts and decisions cannot be adopted by the fifteen".

The Schengen Protocol would authorise the Schengen states to continue to develop within the Union's institutions a Schengen acquis, applicable only to them.

"Enabling clauses" as referred to in Option A would allow enhanced cooperation also in areas which are not covered by Schengen.


Draft Schengen Protocol

A draft Schengen Protocol attached to the IGC papers provides that:

- The Council of the EU shall take over the tasks hitherto carried out by the Schengen Executive Committee (Schengen ministers).

- Whenever the Council deals with Schengen issues, the UK and Ireland shall not take part in the deliberations and decisions but shall attend the session.

- When taking a decision according to the Schengen agreements the Council shall act in accordance with the relevant legal basis which would apply were that decision to be taken under the EC and EU treaties. [This would imply a significant change, if qualified majority vote is established in the revised TEU for parts of the prevailing treaty's third pillar. Under the Schengen agreements, the decisions of the Executive Committee require unanimity. The issue could prove particularly sensitive in the non-EU member states Norway and Iceland which have signed Schengen association agreements. The Norwegian government in particular has repeatedly countered criticism by Schengen opponents that the country's Schengen membership would undermine national sovereignty and result in a gradual integration into the EU, by arguing that the unanimity requirement under the Schengen Agreements excluded any risk of Schengen decisions being adopted by the Executive Committee against the will of Norway. This argument would no longer be valid in the event of Council votes under qualified majority rules].

- The European Court of Justice (ECJ) has jurisdiction to give preliminary rulings on the Schengen acquis, and to rule on disputes between member states concerning the acquis. However, the Council may decide that the jurisdiction of the ECJ shall not apply to a particular decision or parts thereof [this could allow British participation in selected parts of Schengen, without Britain having to accept ECJ-jurisdiction].

- The EU Council may negotiate and conclude agreements with third countries in connection with the objectives pursued by those states under the Schengen agreement. [This provision implies that 'Schengen' enhanced cooperation under the TEU could be extended to countries such as Switzerland, the USA and Canada, while leaving out certain "immature" EU member states. In the IGC non-paper it is suggested that "a provision could be included in the Schengen draft protocol to allow the participation of representatives of Iceland and Norway" in Council decision-making].


Schengen bureaucrats fear for their jobs

The draft Schengen Protocol leaves out the sensitive issue of whether and to what extent the administrative tasks under the Schengen agreements presently conferred to the Schengen secretariat, the "Central group" of high officials and a plethora of working groups of officials, should be taken over by the General Secretariat of the Council and the K.4 structures. But in the IGC non-paper it says: "Consideration should also be given to a possible integration of the Schengen Secretariat into the General Secretariat of the Council". Such considerations are said to have created an air of uncertainty among Schengen staff. They fear that EU officials might be tasked with taking on some of the functions currently in the hands of Schengen officials.



While Option A could be described as a prototype of "flexibilisation", Option B is more of an "opting-out" solution. But the essential common feature of the two options is that they would lead to a two-track community, with a "first class" consisting of states that make full use of enhanced cooperation and thereby accelerating the process towards a federalist and centralised Union, and a "second class" made up of "anti-federalist" member states and, possibly, future new member states, regarded as not yet able to meet the requirements of "enhanced" cooperation.

Both options raise considerable institutional problems. First, Schengen contains elements both of the first pillar (internal market) and the third pillar (JHA: Justice and Home Affairs) of the TEU. This raises the question among others, of the European Parliament's future involvement. Secondly, Option B at least could lead to non-EU member states de facto having greater influence in decision-making at the JHA Council than certain member states. Finally, irrespective of the particular form eventually chosen, any flexibility approach threatens to lead to a confusing and barely manageable variety of legislation valid in the different member states. Legislation in the EU would resemble a self-service shop, where every member state picks the optional features which best meet the respective government's political priorities of the day. In the Schengen case, for example, this could well lead to Britain participating in Schengen police and security cooperation, including the Schengen Information System, while maintaining its internal border controls. Both Option A and B include the idea of "enabling clauses", allowing enhanced cooperation among groups of member states even in the TEU and JHA areas which are not covered by Schengen. The "flexibility" approach would make it ever more difficult for EU citizens to know which sets of common rules apply in which member states. Moreover, "flexible" law-making as considered by the IGC, will not contribute to establishing common constitutional standards, but further extend governments' scope of action at the expense of legal security and democratic scrutiny.



Sources: Non-paper 'Schengen and the European Union', IGC Secretariat, Brussels, 4.2.97, Conf/3806/97, limite; annex 1: Enabling clauses flexibility approach; annex 2: Draft Schengen Protocol; Neue Zürcher Zeitung, 13.2.97; European Voice, 6-12.2.97.