Center for Fundamental Rights

Saving Schengen: Amending the EU Treaties


Saving Schengen: Amending the EU Treaties

The reality of a European Union without internal borders – known as the Schengen cooperation is in grave danger due to the waves of mass migration of recent years and the errors of a Brussels leadership incapable of facing up to the challenge. This, the most popular of the achievements of the EU, is so close to total collapse that such an outcome can only be avoided through fundamental reform including opening up the EU Treaties to amendment. The Center for Fundamental Rights, however, believes that real renewal is possible not through the concentration of power in Brussels proposed by President Macron, but through a return to the original concept of the Schengen mechanism, where decisions are made not above the heads of the member states, instead they themselves make those decisions. With the latter approach it is feasible to implement a policy towards internal movement, a defense of outside borders and migration that is based on consensus. In sharp contrast, the plan advanced by the Federalists would take us another step towards creating a “United States of Europe” where instead of protecting the borders all we have is border management and “solidarity” among the member states is fig leaf for legalizing the migrants’ entry into the EU.

A mistaken axiom adopted by the Commission – namely, that the right to free movement extends to migrants arriving to the EU, not merely to EU citizens; has led to illegal, uncontrolled mass immigration. In order to prevent migrants wondering throughout the Schengen Area several member states, understandably, reinstated border controls, but as a result, they didn’t just make life more difficult for our citizens but also inflicted a terrible damage to the EU’s economy. To add insult to injury the Commission, which as we have established played a leading role in undermining the Schengen Area, is assisting in attempts to make such border controls, originally envisaged as temporary measures, become permanent.

As a result, at this point in time, a need for a rethink of the rules of Schengen is accepted regardless of political ideology: reform proposals were made by both the Sovereignist and Federalist sides. The latter approach is most evident in the recently published open letter authored by President Macron. According to the letter, the French politician would use further centralization to create a legal basis for EU institutions to make decisions instead of member states when it comes to border protection, the Schengen Area, and migration. If the EU institutions were so empowered, they could no longer be considered exceeding their powers when they interfere with the member states’ policies in these fields. Macron has also expressed a view that would tie Schengen Area participation to “solidarity” (aka accepting migrants) thus attempting to exclude the proposals coming from the Visegrad group of countries regarding border protection.

In contrast, the Center for Fundamental Rights proposes a better Europe instead of more Europe. Accordingly, instead of a forced deepening of integration and further centralization the original “Schengen model” should form the basis of the reforms – a model where consensual decisions were taken by the participating member states, not by bureaucratic institutions above the heads of the member states. Indeed, one of the roots of the current problem is that the EU Treaties – and their (re)interpretations, gradually weakened member states’ competences allowing more and more interference from the EU institutions. In the end border protection has become an EU level function with shared competence – the member states can only make decisions up to the point where the EU asserts its legislative primacy.

The original concept of Schengen is reflected in the Hungarian Prime Minister’s most recent proposal. The core of this proposal is that the Commission should not take decisions with regard to the internal open border zone – instead, such decisions should be delegated to a body made up of the Ministers of Home Affairs of the participating states. This arrangement would not be alien to European Union law: the Eurozone was created in a very similar way. A forum made up of the Ministers of Finance of the Eurozone countries governs the Zone independently of “traditional” EU institutions. A forum for Schengen countries’ Ministers of Home Affairs could be similarly set up and might include those members of the Schengen Area who remain outside of the EU proper. Thus the current anti-democratic practice of excluding non-EU members of the Schengen Area from decision-making could be eliminated.

It is important to stress that a reform of such scope necessitates the opening up of the EU Treaties for amendment; not an easy task with recent experience – but a notion raised by more and more western politicians as well.

The History of Schengen: the Road from Intergovernmental Agreement to an EU Competence

The Schengen Agreement was set up as an intergovernmental cooperation outside the framework of European integration by five of the then ten member European Economic Community. The reason for this was a debate at the time over the interpretation of the free movement of persons: some member states of the ECC considered the term to mean economic relocation – for instance employment in fellow member states; but other member states understood it to encompass a complete abolition of internal borders. Since a compromise was not forthcoming at the time, the five member states with the wider understanding of the concept moved towards deeper integration on their own. The Schengen Agreement was later supplemented by the Schengen Convention and came into force in 1995.

Parallelly, a “process of deepening integration” was set in motion: a series of EU Treaties gradually drew away competences from member states, vesting them in EU institutions. The 1993 Maastricht Treaty was the first to institutionalize the cooperation of policies of Justice and Home Affairs on the level of the European integration. At the time the mechanism worked on an intergovernmental basis but European institutions were already involved, albeit in a limited way. At the time the European Parliament had to be involved only on the level of consultation and the European Commission proposed legislation within its jurisdiction to the European Council solely in concert with the member states.

Later, the 1999 Amsterdam Treaty drew border protection under community law incorporating it into the framework of cooperation on matters of Justice and Home Affairs, thus the member states shared competence in this field with the European Union. The achievements of Schengen having existed in parallel to community law as intergovernmental cooperation up to that point were gradually integrated into the EU legal framework, making formally still extant agreements obsolete. More competences were delegated to EU institutions, for instance the Commission, after a 5 years long transition period, was given exclusive legislative initiative, limited at the time to basic rules, which were then complemented by member states’ policies.

Since exclusively intergovernmental agreements do not fit the integration aims of the EU, parallel, multilateral agreements between member states in the mould of the Schengen cooperation were to be avoided. As a result, the Amsterdam Treaty allowed for so-called “closer cooperation” among member states within the framework of the European Union’s legal system. This concept allows the member states to cooperate in fields not under exclusive EU jurisdiction “for the advancement of the aims of the EU, protecting its interest and to further integration” with the permission of the Council, and with a minimum of nine member states engaged in the cooperation. This new legal concept fit the European Union’s “vision” for Schengen perfectly, as it weakened the intergovernmental nature of the cooperation – as a result, the Schengen rulebook became one of the first examples of closer cooperation.

The Lisbon Treaty came into force in 2009 and saw border protection completely lose its intergovernmental nature. Border protection was elevated to the EU level as a shared competence. It was decided that legislation would henceforth be adopted within a regular legislative framework for the “area of freedom, security and justice”. This in effect means that the Commission asserts its exclusive legislative initiative proposing legislation which is then debated, amended and adopted by the European Council and European Parliament acting as co-legislators.

Shared Competence and Deficit of Democracy

In those cases where competence is shared the member states may exercise regulatory function up to the point where the EU asserts its role – this applies to Schengen and through it, to border protection. This means that if the EU moves first with regard to regulation, due to the above mentioned notion its competences might expand. The member states’ right to regulate hasn’t been lost forever though, it might reappear if and when the EU treaties are opened up for amendment again.

Since all decisions regarding Schengen are taken employing the regular legislative process, the cooperation of EU institutions results in a deficit of democracy when it comes to decision making over the Schengen Area, because there are Schengen Area participants who are not members of the EU, namely: Norway, Switzerland, Iceland and Liechtenstein. Issues pertaining to Schengen are currently overseen by a mixed committee with non-EU members present in it along with a representative of the Commission and decisions are taken based on the work of the mixed committee by the Council of Justice and Home Affairs.  This however does not change the fact that the above four countries have no representatives in the EU institutions and as a result decisions making may happen without them. Thus it would be appropriate to revise the current practice and create a decision making process which is separate from EU institutions.

The Schengen Area also divides EU members. There are member states who are not participants of the Area, such as Bulgaria, Romania and Croatia. Bulgaria, as a member state outside the Schengen Area has, for instance fulfilled all necessary criteria for joining and yet its participation is blocked by the Commission for political reasons alone – another abuse of authority.

Solution: an Amendment to the EU Treaties

Reform of the internal open border area has been identified as the solution to the long term viability of the Schengen Area by both the Sovereignist and Federalist sides in recent years. The Sovereignists want an EU made up of strong, independent nation states, and accordingly do not support deeper political integration and an expansion of competences for the EU institutions. In contrast the Federalists dream of a United States of Europe, which contrary to its popular name, most resembles the federal system of Germany, not the political framework seen in the United States of America. This envisages a tight political integration – a loss of national sovereignty for the member states. The two sides, regardless of the seemingly irresolvable differences, however, agree that reform is necessary and it requires opening the EU treaties up for amendment. They do have different aims in mind, though.

Hungary’s Prime Minister, in lockstep with the Sovereignist approach, sees the solution in setting up a new body, where (similarly to the Eurozone’s Council of Ministers of Finance) Ministers of Home Affairs of the Schengen Area would sit and decide on all matters relating to the Area: migration and border protection included. This proposal limits the Commissions ability to interfere with policies regarding border protection and migration which currently exists due to its representative in the mixed committee overseeing the Schengen Area and its exclusive legislative initiative. The aim of this proposal is, therefore, to return decision making to the level of the cooperation of member states from the supranational level. In order to eliminate the above mentioned deficit of democracy problem, a consultational body independent of the EU institutions might be set up which would include non-EU Schengen participants. This proposal isn’t alien to the EU, as the example of the Economic and Monetary Union shows.

The Economic and Monetary Union came into force in 1992. This cooperation is wider than the Eurozone within the EU. All EU member states are participants: there is no single EU institution responsible for coordinated economic policy, tasks are shared between member states and the EU institutions. Although the Economic and Monetary Union wasn’t created as an intergovernmental agreement, it operates within the EU legal framework and new institutions were created for its management: for instance, the European Central Bank or the Eurogroup. This example might be used to create a system of intergovernmental cooperation of the Schengen Area participants in a way that it would operate within the EU framework and would create its own rules and institutions thus eliminating the deficit of democracy problem.

Another example is the workings of the Eurozone which represents a limited and separate cooperation within the EU: its participants are the EU member states that use the common currency. Decisions pertaining to the Eurozone and monetary policies within it are made by the European Central Bank and the national central banks of the members that have adopted the common currency. It is worth underlining that in our view there is no need for an analog of the ECB for Schengen in order to reform the Area, as the purpose of the reform isn’t the widening of EU bureaucracies but the strengthening of the role that nation states play.

President Macron, who made clear his Federalist allegiance in his open letter published in early March stands in sharp contrast to the Hungarian proposal by calling for more centralization, as Federalists do. He recognizes that the system as currently constituted lacks efficiency and that the Schengen Area is in urgent need of revising, but he does not find that the solution is in eliminating the deficit of democracy: instead, he would base his solution on expanding EU institutions’ capacities for decision making. An eventuality which would empower EU bodies – primarily the Commission, one assumes – with all the necessary competences to tackle problems regarding migration, border protection and Schengen might result in a situation where their interference with policies currently reserved for the member states could no longer be considered overstepping their powers.  In his letter M. Macron suggests those steps exactly: border police, creating a European Refugee Office, uniform regulation on refugee acceptance policies among them, which have been pursued by the Commission for years with their seven point legislative package regarding the reform of the EU refugee system.

The French President has recently expanded on his views on how the Schengen Area and European refugee policy should be reformed in a press conference. According to him a member state that does not take part in the latter has no place in the former, because “Europe must combine responsibility with solidarity” according to him. This, in plain English, means that anti-immigration member states, such as the Visegrad group of countries should be excluded from the Schengen cooperation.

Schengen Must Be Saved

There can be no doubt that the open border area known as the Schengen Area is among the most popular achievements of the European Union which affects the everyday lives of innumerable European citizens through the right of free movement of persons. As a result we can safely assume that there would be many whose trust in the European project would be shaken if due to a mistaken EU migration policy the internal open border area were to collapse.

It is the opinion of the Center for Fundamental Rights that in order to save Schengen the member states must reclaim their competences and the Schengen Area participants must be provided with the means to decide in matters that affect them: including migration and border protection.