CAPÍTULO II: MARCO TEÓRICO Y CONCEPTUAL
4.2 RECOMENDACIONES
3.4.1 Introduction
The 1985 Schengen agreement was concluded as an intergovernmental instru- ment between only five Member States.43It was followed by the Convention
on the Implementation of the Schengen Agreement (“CISA”) in 1990 (together: the “Schengen-agreements”).44Although the Schengen agreements were con-
cluded outside of the Community framework, they were drafted with European integration in mind, and are functionally linked to the objective of free move- ment.45 The Schengen agreements establish free circulation of persons by
abolishing border checks,46while at the same time implementing ‘counter-
vailing measures’. These are provisions on police cooperation, mutual assist- ance in criminal matters,47 extradition, transfer and enforcement of judg-
ments,48and the Schengen Information System (“
SIS”).
3.4.2 The integration of the Schengenacquisinto the framework of the EU At the IGC of 1996, the Deputy Minister of Foreign Affairs of the Netherlands submitted a proposal for the integration of the Schengenacquisinto the frame-
41 Mitsilegas 2006, p. 1280; Lööf 2006; Peers 2004; Weyembergh 2005. 42 Weyembergh 2005; Peers 2004.
43 Agreement between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders (1985), [2000] OJ L 239/13.
44 Convention of 19 June 1990 implementing the Schengen Agreement, [2000] OJ L239/19. 45 …as evidenced by the first recital of the Preamble to the 1985 Schengen Agreement, which states the signatories’ intention to give concrete expression to "the increasingly closer union of the peoples of the Member States of the European Communities (...) manifested through freedom to cross internal frontiers for all nationals of the Member States and in the free movement of goods and services". See also: Wagner 1998, p. 5.
46 Article 2(1) CISA.
47 Title III, Chapers 1 & 2, CISA. 48 Title II, Chapter ,5 CISA.
work of the Third Pillar. The underlying reason for this was the “close relation- ship between the substance of the Schengen-co-operation and the substance of the Third Pillar”.49An important argument in favour of integrating the
Schengenacquis into theEU was that it enabled the EU to benefit from the progress which had already been made within the Schengen framework, and with the entry into force of the Treaty of Amsterdam, three years later, the Schengenacquiswas successfully ‘hijacked’ by theEU. Several aspects of the integration of the Schengenacquisinto the framework of theEUdeserve some further explanation.50
The Schengenacquiswas formally integrated into the Framework of the European Union by way of a Protocol51 to the Treaty of Amsterdam, and
entered into force on the date of entry into force of that Treaty.52 This
“Schengen Protocol” is accompanied by an annex which broadly (though not precisely) indicates what constitutes the Schengenacquis.53 Article 2 of the
Schengen Protocol provides the legal basis for further action by the Council in order to establish, where necessary,54the legal basis of the Schengenacquis,
as well as to determine precisely which documents together make up the Schengenacquis. Two Council Decisions followed, based on this provision: Decision 1999/435/EC,55 listing the documents that together make up the
Schengen-acquis, and Decision 1999/436/EC,56 establishing the legal basis
for these documents in theECand/orEU Treatises.57
The Schengenacquisalso entered into force in the non-Member States of Norway and Iceland on March 25, 2001, and Switzerland on December 12, 2008. Norway, together with Sweden, Denmark, Finland, and Iceland belonged to the Nordic Passport Union. The Nordic Passport Union was associated with
49 De Zwaan 1998, p. 18.
50 See in particular: Wagner 1998, and Kuijper 2000. 51 Protocol no. 2, the “Schengen Protocol”.
52 1st
of May 1999. 53 Kuijper 2000, p. 364.
54 Some Schengen-documents and provisions are now redundant (in particular the institutional provisions within the Schengen-framework). Other documents did not require a specific legal basis to be attributed to them.
55 Council Decision 436/1999 of 20 May 1999 concerning the definition of the Schengenacquis
for the purpose of determining in conformity with the relevant provisions of the Treaty establishing the European Community and the Treaty on European Union the legal basis
for each of the provisions or decisions which constitute the Schengenacquis, OJ 1999, L176/1.
56 Council Decision 436/1999 of 20 May 1999 determining in conformity with the relevant provisions of the Treaty establishing the European Community and the Treaty on European Union the legal basis for each of the provisions or decisions which constitute the Schengen
acquis, OJ 1999, L 176/17.
57 As result of the ‘Communiterization’ of the Third Pillar under the Amsterdam Treaty some provisions of the CISA have been ‘split’ between a Union and a Community legal basis. See: Kuijper, 2000, p. 348, ftnt. 18.
the Schengen group from 1996 on.58The aim of the Nordic Passport Union
was similar to that of Schengen agreements; it abolished border checks between its signatories, and the association between the Schengen group and the Nordic Passport Union was extended through the 1999 agreement between theEU and Iceland and Norway.59Switzerland entered into an association agreement
with theEUand theEC2004, which included provisions concerning Liechten- stein.60 It is expected that Liechtenstein will become fully associated with
the Schengen-acquis early on in 2009.
3.4.3 The functioning of the Schengenacquis in the framework of the EU The 374-page Schengen acquis as it stood when the Treaty of Amsterdam entered into force, and as it was published in the Official Journal61consists
of 64 documents: the Schengen agreements, the accession agreements, and various decisions adopted within the Schengen institutional framework by the Executive Committee and the Central Group, elaborating and implementing various aspects of the Schengen agreements.
The SIS is at the heart of the ‘Schengen machinery’: it is an electronic network which allows border posts, police stations and consular agents from Schengen-group Member States (the “Schengen states”) to access data on specific individuals. The central system (C-SIS) is connected to national networks (N-SIS), as well as a supplementary network known as “SIRENE” (‘Supple- mentary Information Request at the National Entry’), which controls and filters the incoming datastream. A Schengen state (the ‘requesting state’) may enter an alert into theSIS(Article 95CISA) requesting the arrest and surrender of a wanted person, or requesting that an alien be refused entry (Article 96CISA). Only therequesting state can remove an alert issued by it.
58 Cooperation Agreement between the Contracting Parties to the Schengen Agreement and the Schengen Convention and the Republic of Iceland and the Kingdom of Norway, Brussels, 19 December2003 [2004] OJ L 26/3. This agreement is not included in Council Decision 1999/435/EC.
59 Council Decision 437/1999 of 17 May 1999 on certain arrangements for the application of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the association of those two States with
the implementation, application and development of the Schengenacquis[1999] OJ 176/31.
60 ‘Agreement concluded between the European Union, the European Community and the Swiss Confederation concerning the association of the Swiss Confederation with the implementation, application and development of the Schengen acquis’, signed on 26 October 2004 (Council Decision of 25 October 2004, [2004] OJ L370/78).
61 The Schengenacquisas referred to in Article 1(2) of Council Decision 435/1999 of 20 May
1999, [2000] OJ L 239/1. This is the Schengenacquisas defined in Council Decision 1999/
435/EC, (OJ 1999, L 176/1). Some parts of the Schengenacquislabelled “confidential” have
not been disclosed, mainly information regarding investigation, and technical information concerning methods for the protection of documents against falsification. See: Kuijper 2000, p. 347, ft. nt. 11.
TheCISA-provisions on extradition (Title III, chapter 4 CISA) have in the mean time been replaced by the Framework Decision on the European Arrest Warrant (“FDEAW”).62The
FDEAWstipulates that an alert in theSISwith a view to arrest and surrender shall be equivalent to a European Arrest Warrant (“EAW”), if it is accompanied by the requisite information.63 If there are
grounds for the requested party (the Schengen state requested to proceed with the arrest and surrender of a person) to refrain from making the arrest (for instance if the subject of the alert has already been finally convicted or acquitted for the same acts), it may enter a “flag” into the data file of itsN-SIS, prohibiting the arrest of the person for whom the alert was issued until the flag is deleted from the alert (Article 95(3)CISA). This flag is visible to other SIS-users, but is onlybindingon the state that entered the flag into theSIS. In practice, this means that anyone for whom an alert has been entered into the SISis well advised to stay home, even if the alert has been “flagged”. Only the requesting state is authorized to delete or modify the alert and the accom- panying information (Article 106CISA).
Article 111CISAstates that any person who is the subject of an alert may bring an action before the national court of any member state, with a view to the correction or deletion of an alert, or in order to seek compensation for damages resulting from the entry of an alert into theSIS. This is necessary because the subject of anSIS-alert can not practically speaking travel from one member state to the other in order to challenge hisSIS-alert before the courts there, without running the risk of being arrested.
3.5 THE NECESSITY OF A NE BIS IN IDEM PRINCIPLE IN THE CONTEXT OF