EU: The Schengen Protocol: attractive model or poisoned chalice?(feature)
01 May 1997
Professor Deirdre Curtin, Professor of the law of international organisations, Utrecht University. Extracts from a talk given at the Annual Congress of Academy of European Law in Trier, on 20 June 1997.
Before Amsterdam we had just first pillar, third pillar, partly separate and partly overlapping in terms of substantive content, and Schengen as a completely separate form of treaty based cooperation. Post Amsterdam, the landscape has become frighteningly indeterminate in terms of its overall composition. To start with we have had some streamlining of the content of the first and third pillars but their separate existence continues. We have the new phenomenon of more intergovernmental type decision making within the context of the first pillar (those areas transferred from the third pillar) and specific opt outs for isolated Member States even where the subject matter is related to the concept of the internal market (border controls). Superimposed on all of this and "within the framework of the Union" we now have various parts of the Schengen "acquis" to which two Member States can opt in or opt out as they choose. It's Schengen a la carte for the United Kingdom and Ireland. Denmark on the other hand negotiated yet another protocol as a signed up member to the Schengen Conventions. What do we find? An opt out of the Schengen acquis which falls within the first pillar for Denmark but no opt out of Schengen acquis which falls within the sphere of the third pillar.
It is small wonder that experts need multiple conferences to discuss and debate and try to get to grips with the at times truly horrible institutional complexities. And the citizens will only feel more bewildered and more baffled and uncomprehending at what has been done in their name. And at the same time they or their more active representatives, be they parliamentary or non-governmental, must confront the fact that precisely in those sensitive areas of police cooperation, immigration and asylum, the judicial protection of citizens under the EU system is weaker than if their economic interests were at stake.
First, in attempting a balance sheet on the Schengen protocol and related provisions I start with the credit side. This is relatively straightforward. The most important advance is the fact that some considerable streamlining takes place in the sense that the objectives and cooperation will henceforth take place within the framework of the EU as opposed to outside it. This is entirely logical given the well known history of Schengen and the fact that it was always conceived and implemented as a "laboratory" for the European Union as a whole. By virtue of this move and of the fact that the "single institutional framework" of the EU will henceforth be used, a quantum leap takes place in terms of democratic accountability and judicial control. The leap is from none to some. That result may still be imperfect but it is definitely a move in the right direction.
Let's now look a little further at the nature of the construction which has been chosen. The first preliminary point is that the Schengen acquis is obviously considered a special case. That may explain why the Treaty drafters included a specific provision to the effect that Article 5a TEC (new) "is without prejudice to the provisions of the Protocol integrating the Schengen acquis in the framework of the EU". I read that text as carving out a special status for that acquis compared to other examples of enhanced cooperation which may occur in the future. But what is special with the approach taken in the Schengen Protocol is the prior identification of the relevant parts of the Schengen acquis to be the subject of flexibility. This is known as a "predetermined" flexibility approach as opposed to the "enabling clauses" flexibility approach contained in the special chapter on flexibility within the framework of the EU. The difference is that if the latter approach had been followed then t