The Schengen Law: A Challenge for Legal Accountability in the European Union

• DOI: http://doi.org/10.1111/1468-0386.00151
• Date: 01 June 2002
• Published date: 01 June 2002

The Schengen Law: A Challenge for Legal

Accountability in the European Union*

Daniel Thym*

Abstract: This article examines challenges for accountability arising from the develop-

ment of the Schengen law within the framework of the European Union. Building upon

the substantive body of research by other authors on general implications of the

integration of the Schengen acquis,

1

it focuses on recent developments after the entry

into force of the Treaty of Amsterdam and evaluates to what extent the European

institutions have so far met the challenges for accountability stemming from the

intergovernmental origin of the Schengen law.

2

The article identi®es various persisting

de®ciencies in the areas of transparency, institutional balance and judicial review and

proposes speci®c actions, which should be addressed vigorously by the European

institutions.

The concept of accountability underlying this article de®es easy de®nition. Concen-

trating on procedural involvement and balances, it generally attempts to guarantee

what might simply be described as `good administration'.

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One way of securing the

European Law Journal, Vol. 8, No. 2, June 2002, pp. 218±245.

#Blackwell Publishers Ltd. 2002, 108 Cowley Road, Oxford OX4 1JK, UK

and 350 Main Street, Malden, MA 02148, USA

* Research Assistant, Walter Hallstein Institute for European Constitutional Law, Humboldt University,

Berlin (www.whi-berlin.de). I would like to thank Carol Harlow and Richard Rawlings for providing the

inspiring academic framework for this article.

1

Cf. Gautier, `Le Protocole ``inte

Âgrant l'acquis de Schengen dans le cadre de l'Union europe

Âenne''', (1998)

August/September Europe 3; Gialdino, `Schengen e il terzo pilastro, il controllo giurisdizionale secondo il

trattato di Amsterdam', (1998) 38 Rivista de diritto europeo 41; Hailbronner/Thiery, `AmsterdamÐ

Vergemeinschaftung der Sachbereiche Freier Personenverkehr, Asylrecht und Einwanderung sowie

U

Èberfu

Èhrung des Schengen-Besitzstands auf EU-Ebene', (1998) Europarecht 583; Picarra, `La mise en

úuvre du protocole inte

Âgrant l'acquis de Schengen dans le cadre de l'Union europe

Âenne: re

Ágles et

proce

Âdures', in M. den Boer (ed.), Schengen's Final Days: The Incorporation into the new TEU, External

Borders and Information Systems (1998); Wagner, `The Integration of Schengen into the Framework of

the European Union', (1998) 25 Legal Issues of European Integration 1; Corrado, `L'inte

Âgration de

Schengen dans l'Union Europe

Âenne: proble

Ámes et perspectives', (1999) Revue du Marche

ÂCommun et de

l'Union Europe

Âenne 342; Peers, `Caveat Emptor? Integrating the Schengen Acquis into the European Legal

Order', (1999) 2 Cambridge Yearbook of European Legal Studies 87; Kuijper, `Some Legal Problems

Associated with the Communitarization of Policy on Visas, Asylum and Immigration under the

Amsterdam Treaty and Incorporation of the Schengen Acquis', (2000) 37 CMLRev. 345; K. Hailbronner,

Immigration and Asylum Law and Policy of the European Union (Kluwer, 2000); S. Peers, EU Justice and

Home Aairs Law (Longman, 2000).

2

The term `Schengen law' shall cover both the acquis as it was integrated by the Treaty of Amsterdam and

new measures building on the acquis under the EC Treaty and Title VI TEU.

3

A concept that has been declared a fundamental right by Article 41 of the Charter of Fundamental Rights

of the European Union (OJ 2000 C 364/1).

general aim of accountability is public involvement in decision-making, either through

formal participation and representation or through a more general responsiveness of

public institutions to public debate and civil society. After a general introduction (I),

the article therefore analyses the transparency of the Schengen law as a necessary

precondition for public involvement in Schengen-related decision-making (II). Assum-

ing that the inter-institutional dialogue under the various decision-making procedures

is an important tool for achieving accountability, the article then scrutinises the recent

practice of the Council in the light of the various procedural guarantees of Community

law substantivising the general constitutional principle of institutional balance (III).

Finally, the potential judicial contribution to legal accountability of the Schengen

law shall be considered. The far-reaching absence of accountable decision-making

under the original Schengen conventions confers a special role on the courts as a

retroactive means of ensuring the compliance of the hitherto intergovernmental

Schengen law with the negative constraints and positive requirements laid down in

the Union's constitutional Treaties. In this context, the normative eect of the

Schengen law and speci®c challenges of legality, including compatibility with human

rights, shall be examined (IV and V). Many issues raised in the article are rather

technical, but it is in the day-to-day business of decision-making that the Schengen law

has to prove its claim to be really `integrated' in the European Union. The article

concludes with speci®c recommendations how the European institutions could ®nally

achieve full compliance of the Schengen law with the European Union's principles of

accountability (VI).

I A Family Uni®cation: The Integration of the Schengen Law in the

Framework of the European Union

The challenges for legal accountability created by the Schengen law cannot be

understood without at least a general knowledge of its background and development

since 1985: the original Schengen Conventions agreed on the basis of classical

international law (A) and their integration into the framework of the European

Union by the Treaty of Amsterdam (B).

A The Schengen Conventions prior to Amsterdam

The legal backbone of the present Schengen law is the Convention Implementing the

Agreement on the Gradual Abolition of Checks at their Common Borders signed at

Schengen on 19 June 1990 (Schengen II), which speci®ed the general policy objectives

laid down in the original Schengen I Convention between the Benelux countries,

France and Germany in 1985. All other present Member States of the European

Union, excluding Ireland and the United Kingdom, later acceded to the Schengen

conventions. Since the implementation of the Schengen law by the Nordic countries on

25 March 2001,

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systematic internal border controls have now been de®nitively

abolished between all Schengen states. Generally, legal accountability of the Schengen

law is complicated by the fact that Schengen II established an Executive Committee

bringing together the ministers of the Schengen states who unanimously decided on

implementing decisions which continue to be part of the Schengen law.

Whereas to many citizens `Schengen' simply means that they do not need a passport

to go from one country to another in continental Europe, the ¯anking measures on

June 2002 The Schengen Law

#Blackwell Publishers Ltd. 2002 219

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Council Decision 777/2000/EC (OJ L 2000 309/24).