The Schengen Treaty

By Stephen K Karanja

Introduction

My presentation is going to be based on the Schengen Treaty or Schengen Convention, as it is officially known. The areas I will try to cover within the limited time I have at my disposal include the origins, setbacks and prospects for the Treaty, its impact on European Civil Liberties and the Schengen Information System.

Let me first begin by putting the Schengen treaty into the Australian context by answering the question, what does the Schengen treaty mean to Australians? There are two possible responses to this question, one positive and the other negative. I will first give the positive answer. With a 3 months visitor's visa, Australians can enter into the Schengen area, stay there and travel freely without internal border checks for the duration of the visa. One does not need to ask himself/herself whether the next country requires a visa or not, or show a passport while crossing internal borders.

That is the good news. Now what about the bad news. The worst that can happen is for a person's name to be entered into the Schengen Information System as unwanted alien who should be refused entry. The disadvantages are that entry refusal by one country automatically disqualifies one from entering all the other Schengen countries. There are many reasons why a country may enter ones name into the Schengen Information System for the purposes of entry refusal under Article 96 of the Schengen Convention. Let say for example that an Australian environmental activist does not like the Norwegian whaling policy and demonstrates against that here in Sydney or any other place. Let us say also that the Norwegian authorities do not like the idea (which God forbid). The authorities then decide to enter the name of the activist into the SIS as an undesirable person who should be refused entry. Then because there is a conference for environmental activities in Spain, the activists decides to travel to Spain but at the airport on external border check, it occurs that the activists name is registered in the SIS database as a person to be refused entry. Although Spanish law may not permit entry denial for such a reason as used by Norway, nevertheless, because the Spanish must take into consideration the national security interests of the other Schengen countries, they decide to refuse entry to the activist.

This illustration is not far fetched because it is based on a real case. A Greenpeace activist from next door, New Zealand, by the name Stephanie Mills, was refused entry into the Netherlands in June 1998 because France had entered her name in the SIS as undesirable person to be refused entry for national security reasons. One may ask what was Mills' crime? Mills' crime was that she was not pleased with the way France was detonating nuclear bombs in the south pacific and she and her colleagues decided to demonstrate against the detonation. France responded by entering her name in the SIS without her knowledge. That meant that Mills could not enter France or any other Schengen country. The above instances demonstrate how easy it is to travel into the Schengen area but at the same time how easy it is to be refused entry.

The Origins of Schengen Treaty

The immediate origin of the Schengen Treaty is the Schengen Intergovernmental Agreement of 1985. This agreement was signed by what have come to be known as the five original Schengen members: Germany, France and the Benelux (the Netherlands, Belgium and Luxembourg). Schengen is the name of a small town in Luxembourg where the Agreement was signed. The objective of the Agreement was to introduce an area in which internal controls would be abolished and police and judicial co-operation would be improved.

However, the real origin of the Schengen can be traced in the European Community idea of an internal market or single market. Article 8a of the Single Act 1987 (now Article 14) of the Treaty of European Communities defined internal market as an area of free movement of capital, services, goods and persons. Whereas it was easy to achieve the first three freedoms: the free movement of capital, services and goods, the free movement of persons became problematic because of differences in interpretation of Article 14 amongst the Member States. The majority of the Member States were of the opinion that free movement of persons applied to all persons residing within the Community and not the nationals of the Member States only. On the other hand, Great Britain preferred a restrictive interpretation of the freedom of movement that extended to the nationals of Member States only and did not include nationals of third countries residing or lawfully in the Community. Since the rules of the Community required decisions on internal market to be unanimous no decision on freedom of movement could be agreed. Another problem was the failure of the Member States to agree on compensatory measures to be adopted after the removal of internal border checks, where Great Britain was also an obstacle. Great Britain opposed the idea of removal of internal checks and controls.

To resolve the issue, the countries in favor of an inclusive interpretation decided to go it alone and establish an area of free movement as they understood it outside the European Community apparatus. The idea was to use the Schengen area as an experiment or laboratory where free movement would be tried out before applying it to the entire European Community. At first only countries that were willing to experiment would join hence the first five original countries. However, the agreement was open to all EC members and the rest could join at their own time and pace.

The next phase of the development of the Schengen area was the signing of the Schengen Convention in 1990 by the five original countries and Italy. The Convention served as an impetus for other EC countries to join. Portugal and Spain joined in 1991, Greece 1992, and Austria 1995. The other countries to join as block were the five Nordic countries; three are EU members, Finland, Sweden and Denmark, and two non-EU members, Norway and Iceland, in 1996. Currently, the Schengen members are 15 in total. Only two EU Member States, Great Britain and Ireland have decided to opt out. Great Britain for the reasons we have mentioned above. Ireland does not share Great Britain's reasons but would like to preserve the Common Travel Area she enjoys with Britain. However, the Amsterdam Treaty does allow the two countries to opt in to parts of the Schengen co-operation they choose to participate in. Great Britain has already signaled its interest to use this right by applying to join the implementation of Schengen Information System (SIS).

The Schengen Agreement of 1985 was as it were the skeleton whereas the 1990 Convention is the flesh. The purpose of the Convention is to implement the 1985 agreement. The Convention abolishes all border controls within Schengen area by removing internal border controls on roads, at ports and airports. It also tightens control at the external frontiers of the Schengen area, enhances police, judicial and criminal justice co-operation, in particular by introduction of a computerized system for exchange of data (SIS). The Schengen Convention came into force on 26 March 1995 ten years after the establishment of the Schengen area, when the five original members began to implement it. However, it was immediately thrown to confusion when France invoked the saving clause in the Convention that allows a Contracting Party to reintroduce internal border controls for public policy or national security reasons. France has never felt comfortable with the Dutch liberal drug policy and therefore continues to maintain border controls with the Benelux to avoid what it calls drug tourist peddling between France and the Netherlands.

Other members commence implementation of the Convention once they have fulfilled all the necessary conditions. Members have to demonstrate that they have effective controls on the external borders, to implement a common visa policy, to provide for police and judicial co-operation and to link up with the Schengen Information System. Italy and Austria having joined the Schengen co-operation as earlier as 1990 and 1995 respectively were not able to implement the Convention before 26 October 1997 and 1 December 1997 respectively. The implementing Contracting Parties, especially Germany insisted that the two must demonstrate effective control of their external border before they could implementation the Convention. Germany was especially worried that the two were not able to fulfil these conditions. Greece started to implement the Convention on the 8 December 1996. The Nordic countries are expected to start implementation as soon as they have established their National Schengen Information Systems. This is expected to be on the 1 October 2000.

Incorporation of Schengen into the EU Structures

Having brought 15 countries together, the original purpose of the Schengen was accomplished. The experiment was over and it was time to return home into the EU legal framework and structures. In 1997 the Schengen Acquis was incorporated back into the EU through the Amsterdam Treaty. The incorporation was necessary:

· Firstly, because of the similarity of objectives between Schengen and EU policies on free movement of persons.
· Secondly, because the legal basis for the Schengen co-operation was deeply rooted in the EU legal system.
· And thirdly, because the Schengen co-operation was faced with fierce criticisms since its inception.

It was attacked for lack of transparency, democratic control and judicial control. The Schengen was negotiated in secrecy. National parliaments did not play any part they were finally handed a Convention on a "take it or leave it" basis. Even important documents such as the SIRENE manual and external borders control handbook are stamped confidential and remain secret. The Schengen Convention gave no guarantees about supervision in respect to national law. Although complaints could be brought before national courts, there was no mechanism for obtaining rulings on the interpretation and application of Convention provisions. The European Parliament did not play any role at all and was sidelined. Further, the European Commission was invited into the Schengen negotiations only as an observer was. There was also lack of international judicial control as the European Court of Justice was denied jurisdiction. These deficits, it was argued, were expected to have serious consequences for data protection and rule of law.

Hence both the critics and fanatics of the Schengen viewed the as an antidote to the deficits as the role of the EU institutions in areas of the Schengen co-operation would be strengthened.

The Schengen Information System

The Schengen Information System is a novelty of Schengen Convention. It is a computerised database for registering data on wanted and unwanted persons and objects. The purpose of SIS is to enhance external border checks, police and judicial control through exchange of information necessary in connection with entry to the countries, the granting of visas, and combating crime. Each of the Contracting Parties has its own section of the information system referred to National Schengen Information System (NSIS) and a joint Central Schengen Information System (CSIS) is located and operated in Strasbourg, France. Each Schengen Contracting Parties can carry out search into its NSIS only. No search is permit in other Contracting Parties NSIS.

Data to be recorded in the SIS are stipulated in Article 94(3a) and include:

· names,
· objective and permanent physical features,
· data and place of birth,
· sex,
· nationality,
· whether the persons concerned are armed or violent,
· reasons for the report and action to be taken.

However, registering of sensitive data as defined in the first sentence of Article 6 of the Council of Europe Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data is not authorized. That is 'personal data revealing racial origin, political opinions or religious or other beliefs, as well as that concerning health or sexual life'. But since the main provision allows the registration of objective and permanent physical features and leaves registration to the discretion of the registering officer, registering of physical features such as color that may reveal racial origin means that sensitive data will be registered.

Personal data is registered for the following finalities:

· Arrest for extradition purposes,
· Locating witnesses, missing persons or persons to be provisionally detained,
· Entry refusal for foreign national (aliens),
· discreet surveillance for persons and vehicles and
· Goods especially stolen vehicles, weapons, blank documents and cash.

Access to data recorded in the system is restricted to officials responsible for border, police or customs checks and those concerned with the entry and movement of foreign nationals. However, as explained below these are very wide categories.

The SIS has served as a model for European Information System (EIS), which will involve all European Union Member States and will replace the SIS if the convention on crossing of external frontiers, or some of other instrument is adopted. However, the SIS has been highly controversial as regards the protection of personal data.

Data Protection

Although the Schengen Convention has shortcomings as regards data protection, it has however had some positive influence in data protection in Europe. Data protection provisions in the Schengen Convention are an improvement in a hitherto poorly regulated police sector. The Schengen Convention is the first data protection legislation with binding effect in the area of police and border control in Europe. The main data protection legislation the 1981 Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, and the 1995 European Parliament and Council Directive on the Protection of Individuals with regard to the Processing of Personal Data, incorporate exemption that remove regulation of data protection in police matters from their scope.

Important data subjects' rights have been incorporated in the Schengen Convention. For instance, a data subject has the right to access to information concerning him/herself recorded in the SIS. However, the right is restricted where it may undermine the performance of the legal task specified in the report or in order to protect the rights and freedoms of others and during the period of reporting for the purposes of discreet surveillance. A data subject has also the right of correction of factually inaccurate data and deletion of legally inaccurate data relating to him. Another right that a data subject may exercise is the right to request verification of data through national data supervisory authorities established under the Convention. The supervisory authority that is requested checks the data concerning the data subject which is included in the SIS and the use which is made of such data. This right is very important because most data subjects may not have the means and capability to make a request for access.

Other vital data protection principles that have been included in the Schengen Convention are: principles on security of data; time and duration which data may be kept in the SIS; correctness, up-todateness, and lawfulness of data; and purpose principle. The Convention also stipulates for supervision of data and requires the establishment of national supervisory authorities in each of the Contracting Parties territory and a joint supervisory authority in which all Contracting Parties have representatives.

Further, the Schengen Convention has had positive contribution in the improvement of data protection in Europe. Since the Schengen Convention requires Contracting Parties to enact a data protection legislation with a minimum protection level equivalent to that the data protection principles in the Council of Europe Convention, countries that did not have such a legislation such as Belgium, Spain, Italy, Austria, Portugal and Greece, were forced to enact legislation to that effect. However, Schengen countries continue to rely on the unbinding Recommendation No. R (87) 15 of Committee of Ministers of the Council of Europe of 17 September 1987 concerning the use of personal data in the police sector to supplement the Schengen Convention in this area. What seems to be lacking is, therefore, a binding international legislation in line with the Recommendations addressed to the police sector.

But data protection provisions in the Schengen Convention have serious bottlenecks that will continue to undermine individual protection. The finalities for registration into the SIS are vague and wide. For instance Article 96 concerning unwanted aliens to be refused entry as we have seen above in Mills' case can be used to register persons for many different reasons some which are openly political and has nothing to do with violation of national alien or immigration laws. Similarly, member countries' governments can use Article 99 on discreet surveillance for political surveillance on dissidents and other political opponents. It is particularly feared that the provision may be used for surveillance against trade unionist, human rights and environmental activists. In 1997 during the 6th Intergovernmental Conference - ICG in Amsterdam on the signing of Amsterdam Treaty, this Article was used to carry out surveillance on activists opposed to the signing of the Treaty.

Access to data registered in the SIS is open to many persons (virtually whole police forces in all member countries). With about 48 000 terminals in member countries connected to the SIS, it says all about the number of people with access. As it has been observed "the system leaks like a sieve or strainer". In such circumstances, the principle of finality may be rendered useless as data could be used for many purposes that to not have any relation to the recording reasons in the first place. The case in Belgium where a print copy of SIS data was found on a railway station vindicates this position. Two Belgian officials with access to the Schengen countries' common police and security database SIS, were arrested on suspicion of having leaked thousands of highly sensitive personal records from the SIS database to circles involved in organized crime.

In many cases, the Schengen Convention does not regulate data protection instead regulation is left to national legislation of the Contracting Parties which may create different levels of protections as the national legislation differs. For instance, the right of access is to be exercised in accordance to national law of the Contracting Party where access is sought. This may lead to different levels of protection, as the rules of access are different in member countries. Similarly, compensation for injury caused to a person through the use of the data filed in the SIS is regulated by national law. Action for right of access and compensation may be brought in any member country. This may lead to "shopping around" for the country with the most favorable laws.

Data protection supervision is not adequate. Supervision on national level is left to national supervisory authorities of the Contracting Parties. This will lead to difference in the level of protection and supervision because the powers, mandate, independence and competence of national supervisory bodies differ from country to country. At the European level, supervision is to be carried out by a joint supervisory authority. However, supervision by the joint supervisory authority is handicapped because its powers are limited. The joint supervisory authority has an advisory role only; it has no power to make decision. It also has no powers to impose sanction nor does it have its own office or secretariat. It has also had difficulties in carrying out its control work. In 1996, it was refused access to the CSIS to carry out control by the French authorities. The JSA has been operating on very thin budget. Perhaps this reflects on the seriousness of member countries on data protection.

Finally, a lot of personal data supplementary to the data recorded in the SIS is exchanged without regulation through the SIRENE (Supplementary Information Request at the National Entries). The Schengen Convention does not regulate SIRENE. As such there is no common regulation for data exchanged through the SIRENE. National laws of the Contracting Parties regulate the SIRENE. As indicated above such a situation may occasion differences in protection as the national laws of member states differ in details.

Impact on Civil Liberties

The Schengen Convention is glaringly deficient as far as taking civil liberties seriously is concerned. Despite referring to a dozen or so international instruments, the Convention makes no mention of any international human rights legislation. However, this is not strange given the secrecy that surrounded its negotiations, the lack of democratic control and transparency and the lack of a common judicial control organ. At most one can say that the concern for human rights was not even remotely in the consideration of the negotiating parties. The negotiating parties were mainly persons associated with security, and law and order, whose single interest was internal national security of the Contracting Parties.

Perhaps the two most threatening provisions in the Schengen Convention on civil liberties are Article 96 and Article 99. The two require registration of persons on reasons of threat to public order or national security and safety (Article 96(2)) and internal or external threat to State security (Article 99(3)). Although the particulars of the threat, as stated in the Convention, seem specific but the terms public order, national security and State security are ambiguous vague and wide in meaning. The case of Mills above is a pointer to what meaning these provisions can be given. The fact that there lacked a common judicial control organ to interpret the Convention compounded the problem. Even with incorporation to the Schengen to the EU legal system does not elevate the problems because the European Court of Justice have only limited jurisdiction and in any case does not cover matters involving internal security and maintenance and enforcement of law and order. As such this limitation is unfortunate because it is precisely in the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security that individual rights are most likely to be adversely affected.

Using the Mills case as an illustration it is clear to see the number of human rights freedoms and rights can be violated. Firstly, the action by the French government was meant to punish Mills for exercising her right of freedom of expression when she opposed French governments nuclear testing (Article 10 ECHR). Secondly, by registering her in the SIS, the French authorities were interfering with her right of freedom of movement, without any lawful or justifiable reason for doing so (Article 2 of Protocol No. 4 to the ECHR). Thirdly, by registering her name in the SIS as undesirable person was tantamount to making an adverse decision against her without giving her an opportunity to be heard and present her case. This can be said to be in breach of Article 6 of ECHR.

The Schengen Convention seems to be adversely directed against foreign nationals, especially, those from third countries required to have a visa to enter the Schengen area. The visa regulations are used to restrict the number of people entering the Schengen area from these countries. Those mostly affected are refugees and asylum seekers who may not be allowed to board a plane with a destination in the Schengen area without a visa by airline company staff at the airport, for the fear of penalties that the airline may face later for transporting persons without proper documentation and identity. The visa rules affect also other travelers from these countries as the practice is that if one applies for a visa and for one reason or other it is rejected, the name of the person is entered in the SIS as undesirable person to be denied entry. The chances for such a person to get a visa to travel to the Schengen area in future may be locked out permanently until the name is removed from the register. It is instructive to note that almost 90% of all entries on persons in the SIS are foreign nationals to be refused entry under Article 96. This has led to the Schengen and EU policies on free movement being referred to as "Fortress Europe" as they aim at locking foreign nationals from specific third countries outside the Schengen and EU area.

Prospects of the Schengen Treaty

The Schengen as an institution may have come to an end with its incorporation into the EU legal framework. However, it still continues to live as an area of free movement within the EU setup. The challenges that faced the Schengen will continue to confront the EU free movement area until they are fully resolved. In particular, data protection and civil liberties challenges connected with the Schengen will not disappear on their own simply because of incorporation of the Schengen into the EU system. However, the incorporation presents a better opportunity to tackle them. But this cannot happen until human rights and data protection are given equal priority with matters of public order, law enforcement and national security. All these are collective interests that must co-exist for the health of a free and democratic society.

Copyright © Stephen Kabera Karanja
E-mail: s.k.karanja@jus.uio.no