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
.