European Law: Justice and Home Affairs
Problem 1 – Schengen Area
Leerdoelen:
1. What is the Schengen-area?
2. What are the Schengen-rules on border checks for persons entering the Schengen Area?
3. Is it possible for Schengen Member States to conduct checks within their territory?
4. What are the rules regarding the reintroduction of border controls/closing the borders?
Leerdoel 1: What is the Schengen-area?
Guild et al. (2015). What’s happening to the Schengen borders?
The Schengen Area is an area comprising 26 European states that have officially abolished all
passport and all other types of border control at their mutual borders. Primary rule: there are no
internal borders.
The Schengen Agreement set out the principal objective of abolishing border controls between the
participating member states and detailed some of the accompanying measures aiming at the
reinforcement of the control of the external border. The latter consisted of rules on:
- The crossing of external borders;
- Partial harmonization of visa policy;
- The rights of free circulation for non-EU nationals in the territory of the contracting parties;
- The assignment of responsibility for the processing of asylum claims in their territory.
Primary law
- Legal basis of Schengen = art. 77 & 79 TFEU
o Art. 77 TFEU – absence of control (par. 1 and 2)
o The absence of internal border controls (art. 77(1)(a) TFEU)
o A common policy on external border controls (art. 77(1)(b) TFEU)
o Art. 79 TFEU – ‘open border’ policy. Because of this, there are no internal borders. A
common immigration policy.
- Legal basis of the right to travel and reside in the territories of the MS = art. 21(1)
TFEU
History of the Schengen area
1985: The area is named after the Agreement of Schengen (1985) between France, Germany and the
Benelux (so five EU MS (Belgium, France, Germany, Luxembourg and the Netherlands). It operated as
a separate system outside EU law until 1999 (From 1999, the Schengen system was incorporated into
EU law (through the Treaty of Amsterdam), meaning it became an official part of the European Union
rather than a separate agreement).
1990: second agreement (Schengen Implementing Agreement) signed --> the participating states
were committed to abolishing intra-member state border controls on persons & a common system of
external border control on the entry of people into the Schengen area.
,1995-1999: all EU MS except Ireland and the UK joined the system, and the non-EU MS Iceland,
Norway, Liechtenstein and Switzerland also joined the system
By the end of 2007: all the EU member states from 2004 had joined the Schengen system of no
border control of persons (with the exception of Cyprus).
> 22 EU Member States
> 4 non-EU Member States
> 6 EU Member States outside Schengen: these MS don’t have the capacity to be part of
Schengen, which means there is no mutual trust
Galina Cornelise, ‘What is Wrong with Schengen: Border Disputes and the Nature of Integration in
the Area without Internal Borders’ (2014)
Alicia Hinarejos argued that the EU's sovereign debt crisis (staatsschuldencrisis) was the result of the
institutional and legal design of the Economic and Monetary Union (EMU). This article makes a
similar claim with regard to the Schengen system. This is a different area of European integration, but
it is comparable to the EMU in terms of the symbolic weight that integration in this area carries. Since
the early twentieth century both areas constitute core state powers (vormen kernmachten van de
staat). The leaving of monetary nationalism through the introduction of the euro and the
establishment of the European Central Bank, resonates with abolition of internal border controls as
regards the physical movement of people and goods.
Aim of the article: (1) it seeks to shed light on the status of the Schengen system by providing an
overview of the law in this area, set against its political backdrop (politieke achtergrond). (2) it builds
upon this tension by analyzing Schengen and scrutinizing (onder de loep nemen) its shortcomings
2
,and limitations. This article attempts to bring to light a paradox that had characterized European
integration in this area.
Development Schengen area
In 1984, the Commission White Paper highlighted the importance of abolishing internal borders,
emphasizing both its political and economic dimensions, with a focus on market benefits. European
leaders aimed to strengthen cooperation within the European Community by creating an area
without internal borders, facilitating the free movement of goods, people, services, and capital to
enhance unity. Challenges arose in implementing this idea, particularly concerning border control and
immigration policies. The UK, hesitant to relinquish control over its borders, led to the development
of the Schengen Agreement outside the official EU framework. In 1985, five countries (France,
Germany, The Netherlands, Luxembourg, and Belgium) signed the Schengen Agreement, initially
establishing open borders among them. While starting as an independent initiative, Schengen later
integrated into the broader EU framework. This unique arrangement allows certain EU countries to
have open borders, promoting seamless travel and trade. The Agreement took effect in 1995, leading
to the abolition of border controls among the initial seven states. Over the years, several EU Member
States, including Italy, Greece, Denmark, Austria, and Sweden, joined Schengen, along with two non-
Member States, Norway and Iceland. The Treaty of Amsterdam later integrated the Schengen acquis
into the EU legal order, along with former EU policies on immigration and asylum.
● Art. 67 TFEU: the EU shall ensure the absence of border controls, and frame a
common policy on asylum, immigration and external border controls.
● Art. 77 TFEU: the EU is given the competence to develop policies with regard to the
absence of internal border controls, external border control, and the gradual introduction of
an integrated management system for external borders.
● Art. 79 TFEU: the union shall adopt immigration policy and measures for this policy.
● Art. 80 TFEU: The policies of the Union and their implementation shall be governed
by the principle of solidarity and fair sharing of responsibility, including its financial
implications, between the Member States. Whenever necessary, the Union acts shall contain
appropriate measures to give effect to this principle.
The Schengen Borders Code (SBC) serves as a foundational element of the Schengen acquis, being the
first legal instrument under the ordinary legislative procedure in EU policies on border checks,
asylum, and immigration. It addresses the absence of internal border control and rules for external
border crossings (grensovergang). The SBC also covers conditions for the entry of third-country
nationals and local border traffic. The competence over external border control and management has
led to the establishment of Frontex for operational coordination. Additionally, EU policies on visas,
freedom of travel for third-country nationals within the Schengen area, the Schengen Information
System (SIS II), and measures against illegal migration form essential components of the acquis. These
measures are based on Article 77(2)(a), (c), and Article 79 TFEU. The Return Directive, harmonizing
rules for illegally present third-country nationals, is part of these measures, requiring Member States
to issue return decisions, and, if necessary, removal and entry bans.
Schengen has been presented as the paradigmatic example of this phenomenon.
3
, - Special position of UK, Ireland and Denmark in the Schengen framework as a form of
constitutional differentiation. (The UK, Ireland, and Denmark have a special status in
Schengen because they opted out of full participation, keeping control over their borders
while sometimes joining certain cooperation measures)
- Differentiation: that originates from the deepening of EU Authority, is likely to be
permanent and takes place when EU integration concerns core State powers, such as
monetary policies and border control.
- In contrast: the special position of new member states in these policy areas reveals
the sort of differentiated integration that follows an ‘instrumental logic, in that it reflects
efficiency and distributional concerns’.
- Instrumental differentiation: originates in enlargement and it occurs when integration
may have important redistributive implications.
(easier: Schengen is often seen as a clear example of differentiated integration. The UK, Ireland, and
Denmark have a special status within Schengen, which shows how countries can have different
positions as a form of constitutional differentiation. This kind of differentiation usually comes from
the EU gaining more authority, is often permanent, and happens when integration affects core state
powers like border control or monetary policy. On the other hand, new member states sometimes
have special arrangements in these areas too, but this is a different kind of differentiation. It follows
an “instrumental logic,” meaning it is designed for efficiency and fair distribution. Instrumental
differentiation mainly happens during EU enlargement and is used when integration could have
significant redistributive effects. The paradox is that some countries get permanent exemptions
because of core powers (=because it involves essential state functions like border control or monetary
policy), while others get temporary exceptions mainly for efficiency or fairness.)
When the Schengen acquis (=all the rules and agreements that make up the Schengen system, like
open borders, visas, and police cooperation) was inserted in the EU legal framework, the UK was
allowed to remain outside the Schengen cooperation, but provision was made for selective
participation. Art. 4 Protocol integrating the Schengen acquis into the framework of the EU : the UK
could ‘at any time request to take part in some or all of the provisions of the Schengen acquis’. The
Council would decide with unanimity on such a request. Art. 5 Protocol : regulated the possibility for
the UK to optout of further development of the acquis.
Conclusion: is something wrong with Schengen?
Schengen’s crises as discussed in this article have brought to light a number of inconsistencies/flaws:
1. The Schengen system is not satisfactorily equipped to deal with asymmetric shocks
and structural imbalances.
2. The conceptual delinking of controls at the border and controls within member
states’ territory raises important questions with regard to whom is to benefit from the area
without internal frontiers.
3. It can be argued that the delimitation (afbakening) of the Schengen acquis by the
CJEU sanctions (bevestigt) a vision of Schengen where measures of control and surveillance
form an intrinsic part of the area without internal borders.
Integration in this area has at times gone hand in hand with the consolidation (versterking) of
national executive power, most clearly visible with regard to surveillance within the territories of the
member states, and the external border control and immigration
4
Problem 1 – Schengen Area
Leerdoelen:
1. What is the Schengen-area?
2. What are the Schengen-rules on border checks for persons entering the Schengen Area?
3. Is it possible for Schengen Member States to conduct checks within their territory?
4. What are the rules regarding the reintroduction of border controls/closing the borders?
Leerdoel 1: What is the Schengen-area?
Guild et al. (2015). What’s happening to the Schengen borders?
The Schengen Area is an area comprising 26 European states that have officially abolished all
passport and all other types of border control at their mutual borders. Primary rule: there are no
internal borders.
The Schengen Agreement set out the principal objective of abolishing border controls between the
participating member states and detailed some of the accompanying measures aiming at the
reinforcement of the control of the external border. The latter consisted of rules on:
- The crossing of external borders;
- Partial harmonization of visa policy;
- The rights of free circulation for non-EU nationals in the territory of the contracting parties;
- The assignment of responsibility for the processing of asylum claims in their territory.
Primary law
- Legal basis of Schengen = art. 77 & 79 TFEU
o Art. 77 TFEU – absence of control (par. 1 and 2)
o The absence of internal border controls (art. 77(1)(a) TFEU)
o A common policy on external border controls (art. 77(1)(b) TFEU)
o Art. 79 TFEU – ‘open border’ policy. Because of this, there are no internal borders. A
common immigration policy.
- Legal basis of the right to travel and reside in the territories of the MS = art. 21(1)
TFEU
History of the Schengen area
1985: The area is named after the Agreement of Schengen (1985) between France, Germany and the
Benelux (so five EU MS (Belgium, France, Germany, Luxembourg and the Netherlands). It operated as
a separate system outside EU law until 1999 (From 1999, the Schengen system was incorporated into
EU law (through the Treaty of Amsterdam), meaning it became an official part of the European Union
rather than a separate agreement).
1990: second agreement (Schengen Implementing Agreement) signed --> the participating states
were committed to abolishing intra-member state border controls on persons & a common system of
external border control on the entry of people into the Schengen area.
,1995-1999: all EU MS except Ireland and the UK joined the system, and the non-EU MS Iceland,
Norway, Liechtenstein and Switzerland also joined the system
By the end of 2007: all the EU member states from 2004 had joined the Schengen system of no
border control of persons (with the exception of Cyprus).
> 22 EU Member States
> 4 non-EU Member States
> 6 EU Member States outside Schengen: these MS don’t have the capacity to be part of
Schengen, which means there is no mutual trust
Galina Cornelise, ‘What is Wrong with Schengen: Border Disputes and the Nature of Integration in
the Area without Internal Borders’ (2014)
Alicia Hinarejos argued that the EU's sovereign debt crisis (staatsschuldencrisis) was the result of the
institutional and legal design of the Economic and Monetary Union (EMU). This article makes a
similar claim with regard to the Schengen system. This is a different area of European integration, but
it is comparable to the EMU in terms of the symbolic weight that integration in this area carries. Since
the early twentieth century both areas constitute core state powers (vormen kernmachten van de
staat). The leaving of monetary nationalism through the introduction of the euro and the
establishment of the European Central Bank, resonates with abolition of internal border controls as
regards the physical movement of people and goods.
Aim of the article: (1) it seeks to shed light on the status of the Schengen system by providing an
overview of the law in this area, set against its political backdrop (politieke achtergrond). (2) it builds
upon this tension by analyzing Schengen and scrutinizing (onder de loep nemen) its shortcomings
2
,and limitations. This article attempts to bring to light a paradox that had characterized European
integration in this area.
Development Schengen area
In 1984, the Commission White Paper highlighted the importance of abolishing internal borders,
emphasizing both its political and economic dimensions, with a focus on market benefits. European
leaders aimed to strengthen cooperation within the European Community by creating an area
without internal borders, facilitating the free movement of goods, people, services, and capital to
enhance unity. Challenges arose in implementing this idea, particularly concerning border control and
immigration policies. The UK, hesitant to relinquish control over its borders, led to the development
of the Schengen Agreement outside the official EU framework. In 1985, five countries (France,
Germany, The Netherlands, Luxembourg, and Belgium) signed the Schengen Agreement, initially
establishing open borders among them. While starting as an independent initiative, Schengen later
integrated into the broader EU framework. This unique arrangement allows certain EU countries to
have open borders, promoting seamless travel and trade. The Agreement took effect in 1995, leading
to the abolition of border controls among the initial seven states. Over the years, several EU Member
States, including Italy, Greece, Denmark, Austria, and Sweden, joined Schengen, along with two non-
Member States, Norway and Iceland. The Treaty of Amsterdam later integrated the Schengen acquis
into the EU legal order, along with former EU policies on immigration and asylum.
● Art. 67 TFEU: the EU shall ensure the absence of border controls, and frame a
common policy on asylum, immigration and external border controls.
● Art. 77 TFEU: the EU is given the competence to develop policies with regard to the
absence of internal border controls, external border control, and the gradual introduction of
an integrated management system for external borders.
● Art. 79 TFEU: the union shall adopt immigration policy and measures for this policy.
● Art. 80 TFEU: The policies of the Union and their implementation shall be governed
by the principle of solidarity and fair sharing of responsibility, including its financial
implications, between the Member States. Whenever necessary, the Union acts shall contain
appropriate measures to give effect to this principle.
The Schengen Borders Code (SBC) serves as a foundational element of the Schengen acquis, being the
first legal instrument under the ordinary legislative procedure in EU policies on border checks,
asylum, and immigration. It addresses the absence of internal border control and rules for external
border crossings (grensovergang). The SBC also covers conditions for the entry of third-country
nationals and local border traffic. The competence over external border control and management has
led to the establishment of Frontex for operational coordination. Additionally, EU policies on visas,
freedom of travel for third-country nationals within the Schengen area, the Schengen Information
System (SIS II), and measures against illegal migration form essential components of the acquis. These
measures are based on Article 77(2)(a), (c), and Article 79 TFEU. The Return Directive, harmonizing
rules for illegally present third-country nationals, is part of these measures, requiring Member States
to issue return decisions, and, if necessary, removal and entry bans.
Schengen has been presented as the paradigmatic example of this phenomenon.
3
, - Special position of UK, Ireland and Denmark in the Schengen framework as a form of
constitutional differentiation. (The UK, Ireland, and Denmark have a special status in
Schengen because they opted out of full participation, keeping control over their borders
while sometimes joining certain cooperation measures)
- Differentiation: that originates from the deepening of EU Authority, is likely to be
permanent and takes place when EU integration concerns core State powers, such as
monetary policies and border control.
- In contrast: the special position of new member states in these policy areas reveals
the sort of differentiated integration that follows an ‘instrumental logic, in that it reflects
efficiency and distributional concerns’.
- Instrumental differentiation: originates in enlargement and it occurs when integration
may have important redistributive implications.
(easier: Schengen is often seen as a clear example of differentiated integration. The UK, Ireland, and
Denmark have a special status within Schengen, which shows how countries can have different
positions as a form of constitutional differentiation. This kind of differentiation usually comes from
the EU gaining more authority, is often permanent, and happens when integration affects core state
powers like border control or monetary policy. On the other hand, new member states sometimes
have special arrangements in these areas too, but this is a different kind of differentiation. It follows
an “instrumental logic,” meaning it is designed for efficiency and fair distribution. Instrumental
differentiation mainly happens during EU enlargement and is used when integration could have
significant redistributive effects. The paradox is that some countries get permanent exemptions
because of core powers (=because it involves essential state functions like border control or monetary
policy), while others get temporary exceptions mainly for efficiency or fairness.)
When the Schengen acquis (=all the rules and agreements that make up the Schengen system, like
open borders, visas, and police cooperation) was inserted in the EU legal framework, the UK was
allowed to remain outside the Schengen cooperation, but provision was made for selective
participation. Art. 4 Protocol integrating the Schengen acquis into the framework of the EU : the UK
could ‘at any time request to take part in some or all of the provisions of the Schengen acquis’. The
Council would decide with unanimity on such a request. Art. 5 Protocol : regulated the possibility for
the UK to optout of further development of the acquis.
Conclusion: is something wrong with Schengen?
Schengen’s crises as discussed in this article have brought to light a number of inconsistencies/flaws:
1. The Schengen system is not satisfactorily equipped to deal with asymmetric shocks
and structural imbalances.
2. The conceptual delinking of controls at the border and controls within member
states’ territory raises important questions with regard to whom is to benefit from the area
without internal frontiers.
3. It can be argued that the delimitation (afbakening) of the Schengen acquis by the
CJEU sanctions (bevestigt) a vision of Schengen where measures of control and surveillance
form an intrinsic part of the area without internal borders.
Integration in this area has at times gone hand in hand with the consolidation (versterking) of
national executive power, most clearly visible with regard to surveillance within the territories of the
member states, and the external border control and immigration
4
