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

DOIhttp://doi.org/10.1111/1468-0386.00151
Date01 June 2002
AuthorDaniel Thym
Published date01 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'.
3
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,
4
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
4
Council Decision 777/2000/EC (OJ L 2000 309/24).

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