SCHENGEN TURNS TWENTY: BIGGER AND BOLDER THAN EVER

UNCLAS SECTION 01 OF 05 BRUSSELS 002227 SIPDIS SENSITIVE DEPARTMENT FOR CA; EUR/ERA; PRM/PRP; USDOJ FOR CRIMINAL DIVISION - BSWARTZ; EU POSTS ALSO FOR LEGATT E.O. 12958: N/A TAGS: CVIS SMIG PREL CMGT KFRD KCRM PTER EUN USEU BRUSSELS SUBJECT: SCHENGEN TURNS TWENTY: BIGGER AND BOLDER THAN EVER REF: (A) BERN 0991 (B) 04 BRUSSELS 4844 ¶1. (SBU) Summary. The Schengen area has grown from six core countries in 1985 to fifteen at present, with eleven more -- including most recently Switzerland -- expected to be integrated by the end of 2007. Border-free travel within the zone has proved popular with the European public and is one of the most visible signs of the European Union (EU). Instruments to secure the Schengen area include common lookout databases, visas policies and procedures at borders. One of the main pillars, the Schengen Information System, is the largest border and police lookout database in the world. On June 2, the EU amended its visa "solidarity mechanism" which is designed to gain reciprocal treatment for EU citizens from third countries. The amended version helps diffuse a bilateral confrontation with the U.S., but does not eliminate the possibility of mutual visa requirements for American and European travelers. The EU also faces pressure from its eastern neighbors with regard to visa requirements and has developed "road maps" for Bulgaria and other accession candidates to meet the Schengen requirements. End Summary. -------------- Schengen,s Principles -------------- ¶2. (U) Switzerland,s decision by plebiscite to join the Schengen Agreement -- a week after French voters applied a brake to European integration -- shone a spotlight on one of the EU,s most appreciated achievements: borderless movement of people within Europe. The decision by the traditionally insular Swiss on June 5 (reftel a) coincided with Schengen,s twentieth anniversary and paves the way for a continent-wide area of free circulation as early as 2007. ¶3. (U) Schengen,s fundamental principle is that no third-country national should gain access to any part of the territory (either with or without a visa) if he or she constitutes a security threat for any of the members. The agreement assumes that entry into one Schengen state constitutes admission for the whole territory. Therefore, a short-stay visa issued by any participating state will be recognized for entry to the common territory. Once legally in the Schengen area, a third-country national is entitled to move within the whole territory for three months out of every six months without further control at internal borders. Schengen does not cover longer-term visas, such as student, work, refugee, family reunification, official or diplomatic. For all practical purposes, however, anyone who enters a Schengen country under any of these statuses is in reality free to roam throughout continental Europe. -------------- Schengen,s Expansion -------------- ¶4. (U) On June 14, 1985, the Schengen Agreement was signed by Belgium, France, Germany, Luxembourg and the Netherlands to eliminate all internal border checks. Five years later, a convention implementing the agreement established a variety of measures to "compensate" for the lack of internal border controls. The benefits were quickly perceived by the public, and the Schengen area expanded as follows: Italy (1990); Spain and Portugal (1991); Greece (1992); Austria (1995); Denmark, Finland, Sweden, Norway and Iceland (1996). In 1997, a protocol was attached to the EU,s Amsterdam Treaty which integrated the Schengen Agreement into the legal and institutional framework of the EU. Schengen morphed from being an intergovernmental agreement to an instrument of the EU, subject to both the EU,s parliamentary oversight and its judicial scrutiny. ¶5. (U) However, as the recent case of Switzerland underscores, it is still possible to accede to the Schengen space without joining the EU. Special arrangements related to policymaking and funding are negotiated with non-EU members. Although these countries participate in the various Schengen working groups, they do not have a vote in the decision-making process. ¶6. (U) The United Kingdom and Ireland were permitted to opt out of the agreement,s provisions when it became EU law in ¶1997. However, the Amsterdam Treaty required that all future new members of the EU be required to sign up to Schengen as part of the legislative acquis. A two-step integration process for new members was established in order to maintain effective controls at the EU,s external borders after enlargement. When ten new countries joined in the EU in 2004 (Cyprus, the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Malta, Poland, Slovakia and Slovenia),they were required to implement all Schengen provisions related to securing the external borders as of the first day of membership. Both in the lead up to accession and in the immediate years afterwards, the EU has pumped funds and technical know-how to these states to upgrade external border controls. Once the European Commission,s evaluation teams certify that all necessary technical requirements are in place, the internal borders between these ten countries and the rest of the Schengen area will fall and free movement will be expanded to these ten countries. Although evaluations will be made on a "case by case" basis, the expectation is that all ten (or the contiguous eight, at least) will join as a block for practical reasons. The same pattern -- duties followed by benefits -- will be applied to future new EU members (i.e., Bulgaria, Romania and perhaps Croatia). ¶7. (U) Bits of European territory not in Schengen (e.g., Andorra and Gibraltar) are offset by bits of Schengen territory in Africa (e.g., Ceuta and Melilla). And, while some islands remain outside the agreement (Ireland and Great Britain),unrestricted movement to others (Iceland, the Canaries and Azores) is possible. The lack of internal border controls remains one of the most appreciated benefits of European integration. Even those campaigning in France and the Netherlands against the European constitution expressed support for Schengen, including the increased cooperation on border security and law enforcement that accompanied the agreement. -------------- Common Databases -------------- ¶8. (U) In order to compensate for the abolition of internal borders, the Schengen Information System (SIS) was created to facilitate the sharing of information between administrative, police and judicial officials. It is the largest border and police lookout system in the world and contains segmented databases that are accessible only by competent authorities with a need to know. These separate SIS databases include the following categories of individuals: foreigners who are not permitted to enter the Schengen space (intending immigrants and those who pose a security threat); persons under police surveillance; missing persons (including abducted children); and those wanted for extradition or to serve as witnesses in court cases. The SIS also contains lists of stolen/misappropriated or lost vehicles, firearms, travel and identity documents and bank notes. ¶9. (SBU) Of the over 12 million SIS records, the greatest number concerns lost/stolen/misappropriated travel and identity documents. Approximately one million SIS records relate to aliens (including their aliases) thought to be intending immigrants (the so-called Article 96 list). In 2003, countries with the largest contributions to the Article 96 list included Italy (335,306) and Germany (267,884), followed by Greece, France and Austria. At the low-end of the scale were Iceland (10) and Denmark (147). The huge discrepancy in numbers underscores the lack of uniformity with regard to entering data in the SIS. Italy and Germany, which account for 77% of the Article 96 list in 2003, apparently enter all failed asylum seekers and those apprehended illegally on their frontiers, while other countries do not. The European Commission is working to harmonize and clarify the conditions for entering names into the SIS lookout database. ¶10. (SBU) A structure known as SIRENE (Supplementary Information Requests at National Entry point) links the many end users of each national system to others through the central SIS database located in Strasbourg, France. When "hits" register, SIRENE offices provide more extensive information contained in national files. (Note. The number of end users is staggering. In the small country of Austria, for example, 30,000 officials -- border, police and judicial -- are authorized to access the SIS on a need to know basis at over 16,000 terminals throughout the country. End Note.) Both the number of end users and the size of the database create a perpetual worry over data protection for privacy advocates. The European Commission is also working to improve data privacy standards for the SIS. ¶11. (U) On May 31, the European Commission published a series of proposals relating to an upgraded version of the SIS. The immediate need for the improved SIS2 is enlargement of the Schengen zone to include the ten new Member States and Switzerland. When functional in 2007, the SIS2 will improve the database by increasing the amount of data available to end-users when a hit registers (new fields will include first names, date of document issuance and date of theft/loss),use a character management system to enhance automated transliteration of names from characters in other alphabets and the inclusion of biometrics to better identify listed individuals. The SIS2 will also link persons with objects, add new categories of objects and be used to combat identity theft. ¶12. (U) Another database currently under development is the Visa Information System (VIS),which will link the 3500 EU consulates and international ports of entry in the Schengen area to reduce illegal immigration. All visa applicants processed by the VIS will automatically have their names checked against the SIS2. The VIS is expected to allow a biometrics-based search function to help identify illegal aliens within the Schengen space (a function that will not be allowed in the SIS2). -------------- Common Policies -------------- ¶13. (U) With the Amsterdam Treaty, the European Commission was granted the authority to establish a list of countries whose citizens required visas ("black list") and those exempt ("white list") from visas for short, temporary stays in the Schengen area. While successful in harmonizing entry requirements, the common lists have not achieved the political objective of having third countries treat all EU citizens equally with regard to visas. In signing away their authority to determine visa entry requirements, Member States relinquished their ability to act unilaterally in the visa realm. They cannot impose visa requirements on countries the EU has included on the white list. ¶14. (U) A "solidarity mechanism" was included in 2001 to compensate for this loss whereby an "aggrieved" Schengen country can ask that an "offending" country be automatically added to the black list. However, the mechanism proved ineffective. Brunei remained on the white list despite visa requirements for Austria, Portugal and Greece. Venezuela remained on the same list despite visa requirements for Finland and Greece. The U.S. also kept Greece off its visa waiver list. Aggrieved countries generally did not want to exacerbate relations with their external or EU partners. Furthermore, they were in such a minority that their EU partners could easily override their complaint via a "qualified majority vote". ¶15. (SBU) Enlargement in 2004, however, tipped the scale because most new Member States had pre-existing visa requirements. The existence of the EU,s visa white list made the new Member States drop visa requirements for countries like Canada, Brazil and Brunei -- even though these countries did not reciprocate. Only New Zealand complied with the EU,s political objective by announcing that it would treat all EU Member States equally. The specter of visa reciprocity with the U.S. became such a sensitive political issue that the European Commission took steps to take the teeth (i.e., the automatic visa requirement) out of the solidarity mechanism. ¶16. (SBU) In February 2005, the EU reached a political decision to eliminate the automatic visa requirement, despite objections by Poland, the Czech Republic and Lithuania. On June 2, the EU adopted Council Regulation 851/2005, which merely requires Member States to report lack of visa reciprocity to the European Commission. This new regulation will enter into force on June 24. The regulation requires the European Commission to enter into negotiations with offending third countries and to submit periodic reports to the Council and Parliament. Although the automatic visa requirement no longer exists, the European Commission or the Council (by qualified majority vote) may decide to move an offending country from the white to the black list. The regulation also requires the European Commission to submit reports every other year, beginning in 2006, on situations of chronic non-compliance "and shall, if necessary, submit appropriate proposals." These proposals, which are not legally binding, are understood to include retaliatory measures in areas not related to visas. ¶17. (SBU) On May 26, 2005, the Czech government invoked the visa solidarity mechanism against Canada, Brazil and Brunei. The adoption of Council Regulation 851/2005, however, effectively neutralizes the Czech action. In a meeting with Canadian officials, the Czech Ambassador explained that invoking the solidarity mechanism was necessary to counter political opponents who accuse the government of not sticking up for Czech citizens. It was also meant as a signal to "old" Member States that the Czechs will not accept second class status. He volunteered that no action was taken against the U.S. because the Administration,s hands were tied by legislation. Canada was targeted since it had just informed the Czech government that it had concluded its review and decided to retain its visa requirement for Czech citizens. (Note. According to a Canadian official, Canada,s refusal rate for Czechs runs about 9%. During the year after dropping its visa requirement for Czech citizens in October 1995, over 1500 asylum applications were filed by Czech citizens in Canada, leading to a resumption of the visa requirement in 1996. End Note.) This "shot across the bow" by the Czechs underscores the continuing sensitivity in Europe generated by visa policies. ¶18. (SBU) The EU also faces diplomatic pressure by its eastern neighbors to be added to the visa white list. Relations with Russia are affected by visa issues, including the sensitive situation of its Kaliningrad enclave. New Member States also find it hard to maintain good political, social, cultural and trade ties with their eastern neighbors. The EU has developed "road maps" to help accession states make a smooth transition to the Schengen acquis. Frontrunner Bulgaria is in the process of adopting measures to: -- develop new passports that meet Schengen anti-fraud standards; -- abolish the practice of issuing visas at the border; -- establish criminal sanctions and fines for irregular border crossing and forged documents; -- align Bulgaria,s visa lists with the EU,s (by demanding visas of Georgia, Russia, Ukraine and Tunisia and notifying Serbia/Montenegro and Macedonia that visas will be required upon Bulgaria,s accession to the EU); -- enhance staffing and equipment at borders; -- conduct information campaigns about what visa-free travel within the Schengen area will mean after enlargement; and, -- introduce legislation to sanction Bulgarian citizens who break other countries, immigration laws, including confiscation of Bulgarian passports for five years (which many do not expect to be enacted). -------------- Common Procedures -------------- ¶19. (U) Two final tools to help implement the Schengen Agreement are the Common Manual on Border Controls (CMB) and the Common Consular Instruction on Visas (CCI). The CMB provides guidance to Member States on conditions for entering the Schengen area, including external borders and airports, and specifies procedures for conducting checks at ports of entry. The CMB outlines the requirement to run incoming and outgoing passengers, names against the SIS and to stamp their passports. It also provides special instructions on handling minors, refugees and stateless people, diplomats, cross-border workers, seamen, pilots, etc. ¶20. (U) The CCI standardizes the criteria by which aliens are granted Schengen visas. Similar to the INA,s Section 214(b),the CCI states that "the alien must be able to prove that s/he has sufficient means or is in a position to acquire such means lawfully to support her/himself for the intended stay or transit and for her/him to return to the country of origin; further, the alien has to produce documents justifying the purpose of the intended stay or transit." The European Commission has the authority to initiate infringement proceedings against Member States that violate the provisions of the CCI. The scandal involving German visa practices in Ukraine, which forced Foreign Minister Fischer to testify before the German Parliament this year, is based on alleged violations of the CCI. At a hearing before the European Parliament on May 10, Commissioner Franco Frattini stated, "The Commission,s first assessment of the situation is that this (German visa) circular of 2000 was not really in full compliance with the CCI." Since the German Foreign Ministry revoked the circular in 2004 and the prolific issuance of Schengen visas ceased, the European Commission probably will not take punitive action against Germany. Nonetheless, prominent Members of the European Parliament have called for strengthening the European Commission,s ability to oversee and enforce the CCI (including Member States, procedures to protect sensitive data). ¶21. (U) The CCI also provides guidance on common visa procedures such as stipulating the standard application forms, types of supporting documents, fees, etc. It also provides for a common Schengen visa foil format and security features. (Note. Member States are required to produce and pay for their own supplies. End Note.) Member States may use the same Schengen foils to issue visas that are limited to their national territory (by means of a notation). This is done for longer-term visas that fall outside Schengen,s mandate. Member States also may issue territorially limited visas to aliens who are listed as ineligible in the SIS for Schengen-wide travel (reftel b). -------------- Police and Judicial Cooperation -------------- ¶22. (SBU) While a boon to legitimate travelers, the lack of internal controls has also facilitated the international travel of terrorists, traffickers and other persons of concern. To compensate for this, the Schengen package provides for enhanced police and judicial cooperation. As noted above, the SIS and SIRENE systems facilitate the dissemination and exchange of critical information. The SIS2 will enhance this exchange by allowing EUROPOL and EUROJUST to access the lookout data. It will also serve as the repository of the EU arrest warrants and extradition information. The UK is lobbying the European Commission to allow it to participate in Schengen's police and judicial cooperation mechanisms (including access to those parts of the SIS) without dropping its immigration controls on travelers from the continent. While UK participation and expertise is desired at a technical level to enhance law enforcement, there are those in the EU who resent the UK's existing Schengen "opt out" and the UK's general "pick and choose" approach to EU instruments. -------------- Comment -------------- ¶23. (SBU) Satisfaction with the Schengen Agreement is widespread in Europe, as evidenced by the Swiss plebiscite. Schengen may also serve as a platform for common EU consular offices abroad, particularly with the development of the VIS. The SIS increasingly facilitates cooperation between border, police and judicial officials with their European counterparts. While the SIS database would be a prime instrument in extending this cooperation across the Atlantic, the obstacles to sharing information remain political and legal. Although the SIS2 would allow for technical interoperability with U.S. counterparts, exchanging pertinent data will not become possible unless the U.S. is able to address EU concerns such as data privacy and data protection, as well as reciprocity issues. McKinley .