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The Schengen Agreement is a treaty signed in 1985, in Schengenmarker, Luxembourgmarker, between five of the ten member states of the European Community: Belgiummarker, Francemarker, Luxembourgmarker, The Netherlandsmarker and West Germanymarker. The Convention implementing the Schengen Agreement supplemented it 5 years later, providing for the removal of systematic border controls between the participating countries.

The Amsterdam Treaty incorporated the Schengen Agreements into the mainstream of European Union law. Irelandmarker and the United Kingdommarker opted out of Schengen's border control arrangements, while participating in certain provisions relating to judicial and police cooperation.

The borderless zone created by the Schengen Agreements, the Schengen Area, currently consists of 25 European countries.

History

Although individual states issued passports prior to the First World War, systematic identity controls at borders were largely unknown and passports were unnecessary for international travel. The War and its aftermath brought with it a higher sensitivity to issues of nationality and passport controls became an ordinary feature of international travel. Notwithstanding the raising of passport controls in Europe during and after the First World War, some zones of free movement did continue.

Shortly after the creation of the Irish Free State in 1922, an informal agreement was reached between the British and Irish governments allowing the border between the Free State and the United Kingdommarker to remain open. The existence of the Common Travel Area along with the UK's unwillingness to sign the Schengen Agreement, resulted in Ireland deciding not to join the Schengen Area.

In 1944, the governments-in-exile of Belgium, the Netherlands and Luxembourg (Benelux) signed an agreement to eliminate border controls between themselves; this agreement was put into force in 1948.

Similarly, the Nordic Passport Union was created in 1952 to permit free travel amongst the Nordic countries of Denmark, Finland, Iceland, Norway and Sweden and some of their associated territories. Elimination of border controls was implemented in 1958.

The Schengen Agreement

The Schengen Agreement was originally created independently of the European Union, in part owing to the lack of consensus amongst EU members, and in part because those ready to implement the idea did not wish to wait for others to be ready to join . The United Kingdom and Denmark did not join the union , but Denmark joined later when Norway and other Nordic countries were allowed.

Inclusion of the Schengen Laws into the European Union

All states which belong to the Schengen area are European Union members, except Norwaymarker, Icelandmarker and Switzerlandmarker, which are members of the European Free Trade Association (EFTA). Switzerlandmarker joined the bloc’s passport-free travel zone, the Schengen Area, on the 12. December 2008. Two EU members (the United Kingdommarker and Irelandmarker) have opted not to fully participate in the Schengen system (their reasons are outlined here). The main reason that the non-EU states of Icelandmarker and Norwaymarker joined was to preserve the Nordic Passport Union.

However, the Treaty of Amsterdam incorporated the legal framework brought about meanwhile, the so-called Schengen-Acquis, by the agreement into the European Union framework, effectively making the agreement part of the EU and its modes of legislature. Amongst other things, at first the Council of the European Union, later the European Parliamentmarker and the Council of the European Union in the codecision procedure, took the place of the Executive Committee which had been created under the agreement, leading to the result that legal acts setting out the conditions for entry into the Schengen Area can now be enacted by majority vote in the legislative bodies of the European Union. This also concerns the original Schengen Agreement itself, which may be altered or repealed by means of European Union legislation, without such amendments having to be ratified by the signatory states. Thus, the Schengen States which are not EU members have few options to participate in shaping the evolution of the Schengen rules; their options are effectively reduced to agreeing with whatever is presented before them, or withdrawing from the agreement. Future applicants to the European Union must fulfil the agreement criteria regarding their external border policies in order to be accepted into the EU.

Legal basis of the Schengen rules

Provisions in the treaties of the European Union

The legal basis for Schengen in the treaties of the European Union has been inserted in the Treaty establishing the European Community through Article 2, point 15 of the Treaty of Amsterdam. This inserted a new title named "Visas, asylum, immigration and other policies related to free movement of persons" into the treaty, currently numbered as Title IV, and comprising articles 61 to 69. The Treaty of Lisbon substantially amends the provisions of the articles in the title, renames the title to "Area of freedom, security and justice" and divides it into five chapters, called "General provisions", "Policies on border checks, asylum and immigration", "Judicial cooperation in civil matters", "Judicial cooperation in criminal matters", and "Police cooperation".

Two Schengen agreements

The two agreements which are commonly referred to as Schengen Agreement are:
  • The 1985 Agreement between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, also known as Schengen I, which provided for simple visual surveillance of private vehicles crossing the common border at reduced speed, without requiring such vehicles to stop. Persons who did not have to meet specific requirements at internal borders, as, for example, visa requirements, could use this fast lane procedure by affixing to the windscreen a green disc measuring at least eight centimetres in diameter.
  • The 1990 Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, also known as Schengen II or CIS.


These 2 agreements have been republished in the Official Journal of the European Communities through the Council decision concerning the definition of the Schengen acquis and form the most important part of the secondary legislation regarding Schengen of the EU.

European Union Regulations

Other relevant legal texts which form part of the Schengen laws include:
  • The Regulation (EC) No 562/2006 of the European Parliament and of the Council establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), repealing the parts of the Convention Implementing the Schengen Agreement, dealing in detail with border controls and the prerequisites for entry by third-country nationals;
  • The Council Regulation (EC) No 539/2001, dealing with the visa requirement for short stays in the Schengen area according to nationality;
  • The Council Regulation (EC) No 693/2003, which deals with the transit from the main part of Russiamarker to the Kaliningrad areamarker;
  • The Common Consular Instructions on Visas for the Diplomatic Missions and Consular Posts, which contains rules of procedure for the issuance of visa;
  • The Council Regulation (EC) No 1683/95 of 29 May 1995 laying down a uniform format for visas;
  • The Regulation (EC) No 1987/2006 of the European Parliament and of the Council of 20 December 2006 on the establishment, operation and use of the second generation Schengen Information System (SIS II), governing the introduction of the second generation of the Schengen Information System.
  • The Council Regulation (EC) No 343/2003, dealing with the question which member state is responsible to handle an asylum request lodged by a third-country national, also referred to as Dublin II;
  • The Commission Regulation (EC) No 1560/2003, setting out detailed procedures for the application of the Dublin II regulation.


Legislators of Schengen rules

The amended Treaty establishing a European Community specified that during a 5 year transitional period following the entry into force of the Treaty of Amsterdam (1 May 1999) the Council could adopt Schengen rules only unanimously after a proposal from the European Commissionmarker or on the initiative of a Member State. The European Parliamentmarker was only to be consulted.

After this five year transitional period, the Council would make a unanimous decision to legislate in the future certain or all Schengen rules under the codecision procedure, which gives the European Parliament equal power to the Council. The Council did so with the Council Decision of 22 December 2004 providing for certain areas covered by Title IV of Part Three of the Treaty establishing the European Community to be governed by the procedure laid down in Article 251 of that Treaty. As from 1 January 2005, virtually all Schengen rules are thus legislated by both the Parliament and the Council.

See also



References and notes

  1. Irish Minister for Justice, Nora Owen, Dáil Debates volume 450 column 1171 (14 March 1995) [1]; Minister for Justice, John O'Donoghue, Dáil Debates volume 501 column 1506 (9 March 1999)[2]; "Declaration by Ireland on Article 3 of the Protocol on the position of the United Kingdom and Ireland" attached to the Treaty of Amsterdam.
  2. The complete acquis had been published here: .
  3. .
  4. Example: By article 39 subsection 1 of the Schengen Borders Code, Articles 2 to 8 of the Schengen Agreement had been repealed - .
  5. The Treaty of Amsterdam
  6. Consolidated versions of the TEU and the TEC
  7. Treaty of Lisbon, article 2, points 63-68
  8. Agreement between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders.
  9. Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders.
  10. The Schengen Acquis had been legally defined by the Council Decision of 20 May 1999 concerning the definition of the Schengen acquis for the purpose of determining, in conformity with the relevant provisions of the Treaty establishing the European Community and the Treaty on European Union, the legal basis for each of the provisions or decisions which constitute the acquis (1999/435/EC).
  11. Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code).
  12. Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement, original text; this regulation had been amended several times; thus, the lists mentioned in the document linked to is not current.
  13. Council Regulation (EC) No 693/2003 of 14 April 2003 establishing a specific Facilitated Transit Document (FTD), a Facilitated Rail Transit Document (FRTD) and amending the Common Consular Instructions and the Common Manual.
  14. Common Consular Instructions on Visas for the Diplomatic Missions and Consular Posts
  15. Council Regulation (EC) No 1683/95 of 29 May 1995 laying down a uniform format for visas.
  16. Regulation (EC) No 1987/2006 of the European Parliament and of the Council of 20 December 2006 on the establishment, operation and use of the second generation Schengen Information System (SIS II).
  17. Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national
  18. Commission Regulation (EC) No 1560/2003 of 2 September 2003 laying down detailed rules for the application of Council Regulation (EC) No 343/2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national.
  19. .


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