Schengen Area Summary Notes PDF

**[Part 1 -- The Right to cross borders of the schengen area ]** [Key articles / secondary law ] - A21 TFEU = every person within MS can move freely between states - A77 TFEU + Secondary law = Schengen border code - Schengen Agreement 1985 - Schengen Convention 1990 - Maastricht Trea...

**[Part 1 -- The Right to cross borders of the schengen area ]** [Key articles / secondary law ] - A21 TFEU = every person within MS can move freely between states - A77 TFEU + Secondary law = Schengen border code - Schengen Agreement 1985 - Schengen Convention 1990 - Maastricht Treaty = created EU - Amsterdam Treaty = integration of Schengen acquis into EU law - Schengen Border Code 2006 -- reg 2016/399 - Article 2 = definition of internal vs external borders - Article 5 = restrictions on external borders - Article 6 = valid entry conditions - Article 8 = external border controls of people with right to movement + TCN - A21a = restrictions on external borders during public emergencies - A22 = no restrictions on internal borders - A23 = MS can carry out checks within their territory - A24 = Principle of absence of control = obligation of MS to remove controls at internal borders - Chapter 2 = Temporary reintroduction of border controls at internal borders - A25 = foreseable + unforeseeable cases for internal controls - A28 = internal controls for public health - A29 = cases where exceptional circumstances put the overall functioning of Schengen at risk + need internal controls - Reg 2017/458 - new databases in checks - Reg 2021/1134 - Reforms of visa information system - Reg 767/2008 - creating Visa Info System - Reg 603/2013 establishing Eurodac -- repealed by reg 2024/1358 - Reg 2017/2226 - establishing Entry/Exit system - Reg 2019/1896 creating Frontex + repealing reg 1052/2013 - Reg 2018/1240 creating European Travel Info and Authorization System + amending reg 2016/399 - Reg 2024/1717 = amending 3 cases for introducing internal controls (amending SBC) [Key terms ] - Differentiation = territorial scope of \'free movement\' differs from state to state - Schengen Acquis = Schengen agreement and the Schengen convention + acts adopted by the executive committee - Associated states = states that are in Schengen but not in EU. Still apply EU law in certain areas - Instrumentalization of migrants = when third party states use migrants (opening borders) too leverage Schengen/EU eg Turkey and Belarus [Schengen Agreement/Cooperation/Acquis/Area ] Schengen Cooperation = Schengen Agreement and Convention Concluded outside the EC framework 1985-1997 - Allowed states to protect their sovereignty in EU framework - 2 separate international agreements -- Agreement + Convention -- create the Schengen cooperation Schengen Acquis - Maastricht created 3 pillars of competences for the EU 1. Communities\' integration method 2. Competences deferred to the EU 3. Justice and Home affairs -- governed by the EU - 3^rd^ pillar included asylum, immigration etc. = in conflict with the Schengen - Amsterdam Treaty resolved this conflict -- led to several secondary EU acts (Council of EU): - 2 decisions 20 may 1999 = defined Schengen + which elements to integrate + identified the legal basis for Schengen acquis in EU law = A62 TEC/A77 TFEU - Schengen Borders Code 2006 adopted on A62 TEC -- attempts to make one coherent text Schengen Area today: - 29 states -- 25 are also EU - 4 others = associated states (A39-41 Preamble of the Schengen borders code) - Some 3^rd^ countries are considered part of Schengen due to their geographical situation -- Vatican, Monaco + San Marino - Andorra has a specific bilateral international agreement - Some EU MS have exceptions as well - Ireland = Protocol 19 + 21 of acquis said that Schengen would not apply to Ireland. But ireland negotiated the possibility of requesting to take part in some/all of the Schengen rules - Cyprus = not in Schengen because of Turkey occupation -- would mean possible to enter Schengen without controls from outside - Bulgaria + Romania = partial states = in Schengen but its limited. 31 march 2024 have air/sea controls lifted but land controls still in place - France/Netherlands = overseas territories are not included (Schengen Preamble) (Note Spanish/Portuguese oversees ARE included) [Control of External Borders ] A77 TFUE -- gives EU power to develop policy to carry out checks + efficient monitoring of external borders + introduction of management system for external borders [Border checks ] - Article 5 SBC -- can cross external borders at crossing points, during fixed hours - A5(4) (added in 2024) - can temporarily close/limit opening hours of specific border crossing points where circumstances require (introduced to prevent instrumentalization of migrants) - A21a SBC (new in 2024) - can temporarily restrict borders in large-scale public emergencies eg requirements for testing, quarantine etc. - must be proportionate and non-discriminatory - Controls must always comply with Directive 2004/38/EC [Persons enjoying the right of free movement under Union Law] - Before 2017 A8(2) - subject to 'minimum checks' of travel documents. On a "non-systematic basis" will check databases. - After 2017 A8(2) - subject to verification of identity, nationality, verification against databases. [Third Country Nationals ] - A8(3) - subject to thorough checks = verification of conditions governing entry and docs authorising residence/professional activity + 'detailed examination' of ID + consulting databases. - A6 entry conditions = valid travel dox, visas, residence permits, justification of stay etc. - SBC has been amended to reinforce checks on TCN: - Reg 2017/458 - new databses in checks - Reg 2017/2225 - Entry/Exit system - Reg 2021/1134 - Reforms of visa information system [Extension of databases for TCN ] - Schengen Information System: - For all people crossing external borders - Exchange of info among border authorities - guards can enter + consult alerts on people - Initially for criminal management but extended in 2018 to irregular migration - Visa Information System: - Schengen visa data shared across consulates + border points - Processes data eg fingerprints/visa app decisions - Extended in 2021 to long stay visas + residence permits - Reg 767/2008 on the VIS - Eurodac: - Reg 603/2013 establishing Eurodac - Compares fingerprints of asylum seekers - Mostly for asylum purposes but also criminal management - Reg 2024/1358 - repeals old reg in New Pact -- adds new data and new categories of people disembarked after search and rescue ops. - Entry/Exit System: - Reg 2017/2226 - System for entry/exit of 29 schengen states - For TCNs for short stay -- registers time + place of entry + calculates authorized period of stay - European Travel Information and Authorization System: - Reg 2018/1240 - establishes ETIAS amending reg 2016/399 - For 30 states (Schengen + Cyprus) - For visa-exempt visitors -- introducing an online prior authorization system (like US) [Frontex] - Reg 2019/1896 creating Frontex + repealing reg 1052/2013 - Aim of securing external borders [Internal Borders ] Principles: SBC - A22 = internal borders can be crossed at any point without checks - A23 = MS can carry out checks WITHIN their territory - A24 = Principle of absence of control - 2024 amendment A23a = process for transferring people apprehended in internal border areas = control for public security Exceptions SBC Chapter 2 = temporary reintroduction of border controls at internal borders - Must be temporary for reasons of public security, public health etc. - 2013 -- internal controls after Arab springs + flows of migrants into Schengen. 3 cases for introducing internal controls before 2024 - A25 foreseeable cases - Eg Olympics - Can be up to 30 days/foreseeable duration of threat. Total period cannot be extended for more than 6 months - Must notify the commission + MS up to 4 weeks before - A28 -- cases requiring immediate action - In emergency situations - Notification = at the time, or ASAP - 10 day duration. 2 month extension - A29 -- cases where exceptional circumstances put the functioning of Schengen at risk - Council of EU on proposal of Commission will recommend internal controls then MS decide to notify Commission, PE + MS if they decide to adopt. Reg 2024/1717 amending these categories - A25 = general framework - A25a -- cases due to foreseeable/unforeseeable events - A28 -- large scale public health Initial 6 month period after Commission establishes a public health emergency - A29 = same Practice of internal controls - Proposal for amendment to Reg 206/399 = increase of temp reintroduction after migration crisis, terrorist theeats - 2006 -- 2015 = 36 controls - 2015 -- 2017 = 50 (terrorist attacks + migration crisis in 2015) - Use in France: - Controls in 2015 for COP21 - Then bataclan attacks nov 2015 = law for state of emergency extended the use of the foreseeable measures for COP21 - France continued to extend controls after this - Conseil d'état dec 2017 -- found controls were proportional to terrorist + migrant threats - ECJ april 2022 -- if there is no new threat after 6 months, cannot extend A25 use - Conseil d'état july 2022 -- repeats above decision but interprets new threat broadly saying covid + terrorism have new elements which constitute a new threat warranting extension of controls - Control of migrants: - 2015-2017 Council continuously recommended every 6 months to prolong controls under A29 but stopped after 2017 - In 2019 -- 6 states still had partial/full controls under A25 - 2020 = COVID -- reintroduction of controls in disordered way as no solid legal basis - 2023 -- 6 MS still have controls