Select Committee on European Union Seventeenth Report


PART 2: BACKGROUND

5. During the last decade the effectiveness of external frontier controls has become more and more a matter of common concern for EU Member States. A key role in this process has been played by the Schengen group, which today comprises 13 out of the 15 EU Member States. Five Member States (France, the Federal Republic of Germany, and the Benelux countries) originally signed the Schengen Agreement of 1985, which provided for the objective of a gradual abolition of internal border controls. The same countries signed in 1990 the Convention Implementing the Schengen Agreement which contains detailed provisions for the removal of checks on persons at the internal borders and their replacement by controls on entry at the external frontiers of the Schengen countries[3]. To compensate for the loss of internal border controls, the Convention also includes measures to enhance co-operation between immigration, police and judicial authorities in the Schengen States. The five original signatories of the Convention have been joined by the other Member States, with the exception of the United Kingdom and Ireland. Earlier this year, the Council approved an application by the United Kingdom to participate in those elements of the Schengen acquis concerned with police, drugs and judicial co-operation. Ireland has recently submitted a similar application[4]. One of the fundamental elements of the Convention is the principle that the open internal borders of the Schengen zone require in compensation strictly controlled external frontiers. The Schengen system of frontier control was developed after 1993 by a series of Decisions of the Schengen Executive Committee and through constant updating of a secret Common Manual on frontier checks. As a result an increasingly tight frontier control system has been put into place by the Schengen countries since the Schengen system became operational in 1995[5].

6. The Schengen Agreement and the Convention, along with the many other documents which formed the "Schengen acquis"[6], were intergovernmental arrangements—Community institutions were not involved. The decision was then taken at Amsterdam in 1997 to incorporate this acquis into the European Union. As a result what was formerly the Schengen acquis—a much more comprehensive and demanding set of standards and procedures than the few measures dealing with external frontier controls which have been adopted by the European Union as a whole so far—is now part of the EU acquis. Candidate states can no longer join the EU and then at a later date apply to join a distinct Schengen group. Indeed, Article 8 of the Amsterdam Protocol integrating the Schengen acquis into the framework of the EU states,

    For the purposes of the negotiations for the admission of new Member States into the European Union, the Schengen acquis and further measures taken by the institutions within its scope shall be regarded as an acquis which must be accepted in full by all States candidates for admission.

Although now part of the EU acquis for convenience and clarity's sake this report will continue to refer to this portion of the acquis as the "Schengen acquis".

7. With the adoption of the Schengen acquis being a condition for accession to the EU the current candidate countries now find themselves under pressure to upgrade their external frontier control regimes to the high legal, organisational and technical standards defined in that acquis[7]. This requires a huge legislative, administrative and financial effort; it also means that the candidate countries have to introduce a range of tighter restrictive measures at their eastern frontiers. These include checks on persons and transport of goods, the issuing of visas and other aspects relevant to the crossing of frontiers. The consequences of such a tightening of controls are hard to predict. There is a possibility that they will cut through long existing cross-frontier economic, ethnic and political links. Local and regional markets in eastern border areas, relations of ethnic minorities on one side of the frontier with their ethnic homeland on the other side, and political relations with neighbouring non-EU Member States, could be affected. As regards the organised trafficking of human beings, a reflection group set up by the European Commission itself has suggested that "tighter border controls will likely only drive up the price, and thus the profits, of this criminal trade"[8].

8. So far the EU has not offered any concessions to the candidate countries, some of which may initially have hoped for derogations from some areas of the frontier control acquis. Instead the EU Member States seem determined that the entire Schengen acquis should be taken on and implemented from the moment of accession[9]. As a result of the firm EU position the candidate countries have not asked for any significant transitional arrangements or exemptions in the ongoing accession negotiations. Instead they have repeatedly declared their intention to do everything necessary to adopt and implement the acquis at their frontiers at the time of accession.

9. Although the European Union institutions have acknowledged that the candidate countries have made progress with their preparations for taking over the Schengen acquis considerable doubts remain over their ability to implement all parts of the acquis in time for accession.[10] The EU and its current Member States find themselves in an uncomfortable position between, on the one hand, their interest in and political commitment to a smooth enlargement process, and, on the other, potential internal security risks which might result from a failure of new Member States to ensure adequate standards of frontier control. A strict insistence on the implementation of the highest Schengen standards could well mean that the current external Schengen frontiers are fixed in place for many years to come. This could cast a shadow over the whole enlargement process. Yet admitting the candidate countries without having an adequate frontier control regime in place would pose security risks that have already been judged unacceptable by several Member States. The management of the European Union's new eastern frontiers therefore constitutes a major challenge both for the candidate countries and for existing Member States.

THE MAIN CHALLENGES FOR THE CANDIDATE COUNTRIES

10. The major challenge for the candidate countries is the need to meet the extremely rigorous Schengen standards of frontier control. The Schengen frontier control regime is in principle so tight that some observers have compared it to a new "iron curtain" in its effects on cross-frontier movements. Its implementation means for the prospective new Member States a radical transformation of their eastern frontiers, which have traditionally been much more open and governed by relatively liberal conditions of entry. There is a risk that long established patterns of cross-frontier movements of people and goods will be restricted or even interrupted and the disruptive effects on existing cross-frontier economic activity may cause economic problems in frontier regions.

11. The candidate countries' preparations for the required fundamental transformation of their frontier regime are made more difficult by the uncertainties about the eventual location of the future frontiers of the European Union. It is not yet clear which of the candidate countries will accede when. Differences in the dates of accession could greatly add to the burden faced by some candidates in adopting the acquis. The most striking example is the uncertainty over the date of Slovakia's accession: should Slovakia only join the EU after Poland and Hungary the first would need to upgrade its frontier regime substantially in the south and the second would need to do the same with its frontier controls in the north.

12. A second major challenge, closely linked to the first, is the need for the candidate countries to adopt the EU's visa regime. This regime—which is primarily based on a common ("negative") list of countries whose nationals must be in possession of a visa when crossing external frontiers—is an essential part of frontier controls. Both the EU list and the even more restrictive Schengen "negative list" (which is part of the acquis the candidate countries are expected to adopt[11]) will force the latter to introduce visa requirements for most of their eastern neighbours which have hitherto been exempt from such a requirement. This may further disrupt existing cross-border relations. It is also politically sensitive—neighbouring countries may well regard it as an act of forced exclusion. Some candidate countries—especially those with large ethnic minorities on the other side of their frontiers—have therefore shown some reluctance to adopt the EU's visa regime.

13. Third, there is the need for the candidate countries to engage in extensive organisational and structural changes in order to bring their frontiers controls into line with the EU's requirements. In most of the candidate countries frontier controls were in the past largely a matter for the armed forces. This produced a frontier control system based on regular army patrols, watch-towers and (in line with the traditional military perception of frontier security) "heavy units" in reserve positions in the rear. None of these elements fits with the Schengen frontier control regime, which is based on specially organised and trained frontier police units under the full control of Interior Ministries. The Schengen regime relies heavily on mobile units with sophisticated technical equipment, and on modern control techniques such as "risk-profiling" and "risk-testing" which allow for different degrees of intensity of checks depending on the risk criteria fulfilled by certain categories of persons and border areas. Other important elements of the Schengen regime include the Schengen Information System (SIS), a computerised information system on persons, stolen vehicles and objects for the use of border control authorities, customs and national police, and reliance on increased policing behind borders and extensive cross-border police co-operation between Schengen members[12]. The candidate countries still have to struggle with the passage from the former military to the new civilian structures in the control of external frontiers; they also lack sufficient personnel and adequate training programmes and have difficulties in adapting to the totally different control techniques and standards of the Schengen acquis. In addition, after accession most of the candidate countries will have to shift the bulk of their frontier control operations from their traditionally strongly guarded western frontiers (which will become internal EU borders) to eastern frontiers to which much less attention has been paid in the past.

14. The fourth major challenge is financial. The cost of running EU frontier controls, which continues for the time being to fall entirely on national budgets, is likely to be extremely high relative to the wealth of the candidate countries. Meeting the frontier control acquis requires a huge effort in upgrading staff numbers, training and technical equipment. The salaries of frontier guards may need to be increased in order to reduce recruitment problems and the risk of corruption. Extensive new training programmes will need to be introduced, both for newly recruited staff and higher ranks, to familiarise them with new and sophisticated control techniques and equipment. On the technical side hundreds of electronic data transfer links, thousands of new SIS compatible central units and terminals and large numbers of other controlling equipment such as thermo/infrared cameras, x-ray-units and police helicopters will be needed.

15. In addition to the direct cost of ensuring a high standard of external frontier controls the candidate countries will have to face the indirect cost of the disruption that may be caused to existing cross-border economic links. Should tighter external frontier controls produce negative economic consequences there could in turn be pressure on central governments to seek compensation packages for the most affected frontier regions.

THE POLISH AND HUNGARIAN EASTERN FRONTIERS

16. The eastern frontiers of Poland and Hungary illustrate the challenges outlined above. The Polish Border Guard is responsible for guarding 1143 km of eastern frontiers with States which have not applied for EU membership (Russia—the Kaliningrad "exclave"—210 km, Belarus 407 km, Ukraine 526 km). During the Warsaw Pact era the frontiers between the then Soviet Union and Poland were patrolled only by Soviet frontier troops. Polish Border Guards were stationed mainly on the western and southern frontiers and on the Baltic coast. Cross-frontier crime and illegal immigration at the eastern frontiers were fairly limited. Since the beginning of the 1990s this situation has changed considerably. Poland is now faced with immigration pressure from South-Eastern Europe, from the Asian regions of the former Soviet Union and from Asia and Africa. It is also particularly exposed to the operations of organised crime groups which take advantage of the security vacuum in its three eastern neighbours. It is estimated that a substantial number of the hundreds of organised crime gangs operating in Poland have their origin in or are linked to networks in Russia, Ukraine or Belarus. The latest Europol Situation Report on organised crime suggests that the threat of organised cross-frontier crime by groups originating in the former Soviet Union is still growing[13].

17. The Hungarian Border Guard is responsible for 656 km of eastern and south-eastern frontiers with non-candidate countries (Croatia 345 km, Federal Republic of Yugoslavia 174 km, Ukraine 137 km). Hungary is particularly exposed to the uncertainties surrounding its share of the future external frontiers of the EU. It also has common borders with three candidate countries (Slovenia 102 km, Romania 448 km, Slovakia 681 km) which may join the EU at different times and thereby add to the total length of frontiers to which the Schengen rules will have to be applied. As in the Polish case the work of the Hungarian Border Guard had in the past a different geographical focus, with most of the personnel being stationed on the western and southern frontiers. Because of its geographical location Hungary is particularly exposed to illegal immigration flows towards Western Europe, and it is also increasingly becoming a target for Russian organised crime groups[14].

18. A specific problem for Hungary in adopting the Schengen acquis is the fact that large numbers of ethnic Hungarians live in neighbouring countries. Nationals of some of these countries (such as Romania) do not require visas under Hungarian legislation, but do currently require visas under the Schengen rules. There are approximately 2 million ethnic Hungarians living in Romania, 600,000 in Slovakia, 200,000 in Ukraine and 200,000 in the Federal Republic of Yugoslavia. Although Hungary has not requested any derogation during the accession negotiations, the right of ethnic Hungarians to enter Hungary freely is a major political issue.

19. Both the Polish and the Hungarian Border Guards have gone through extensive reforms during the second half of the 1990s and they have made considerable progress as regards demilitarisation, organisational restructuring and changes in strategy, techniques and training. Yet both Border Guards are still struggling with some serious difficulties, most of which are similar in both countries. The effectiveness of the two Border Guards is put under strain by staffing and funding shortages. Several thousand posts remain unfilled due to the lack of financial resources and/or recruitment problems—which to a substantial extent are caused by low salaries and unattractive working conditions. Low pay also adds to the risk of corruption[15]. Most of the equipment has been taken over from the former frontier troops and is largely obsolete. There is still a lack of computer-aided central data and search systems, means of communication, new land vehicles, boats and aircraft and heat emission sensors. Because of the low priority given in the past to the eastern frontiers the infrastructure for the Border Guards as regards check-points and accommodation continues to be of a much lower standard than at the western frontiers. There are also problems with inter-service co-operation (with the customs authorities, for instance) and with the lack of a consistent focus, in training and in overall border management strategy, on the specific challenges of illegal immigration and organised crime. Both central government and frontier region authorities are reluctant to hamper good-neighbourly relations by strict external frontier security. This encourages a negligent attitude on controls. There is also a tendency to be "flexible" on checks on persons and goods in order not to impair cross-frontier economic links.

THE CHALLENGES FOR THE EU AND THE CURRENT MEMBER STATES

20. For the European Union and its Member States enlargement poses three major challenges as regards external frontier controls. The first is the need to arrive at an adequate assessment of the main problems and risks at the EU's new eastern frontiers. Since 1998 the Member States have made major joint efforts to get a clearer picture of the frontier control capacities and deficits of the candidate countries, the most notable being the "Collective Evaluation Mechanism" of the EU Council set up by a Joint Action of 29 June 1998[16]. This evaluation is based on a detailed structured checklist, which includes points on the legal framework, on the organisation and powers of frontier security authorities in the candidate countries, on the procedures and practice of checks at frontier crossing points, on surveillance standards at green and blue frontiers[17], on staff, training and equipment issues and on international co-operation[18]. So far draft preliminary Collective Evaluation Reports have been drawn up on Cyprus, the Czech Republic, Estonia, Hungary, Poland, Slovakia and Slovenia. These reports—which remain confidential—tend to focus on problems and deficits rather than on the progress made by the candidate countries. They form the basis for a current (and arguably somewhat alarmist) picture rather than for an assessment of the situation as it may be at the time of accession. Assessments of the risks also vary widely between those Member States which see themselves as being in a frontline position (Austria, Germany and Italy, in particular) and those in a less exposed geographical position (such as the United Kingdom).

21. The second challenge is to define a common and coherent position on the frontier control standards which the candidate countries will have to meet at the time of accession. This is a major political question. At the moment it is the position of the Schengen countries that the candidate countries must fully comply with the Schengen standards as a condition of accession. While it seems likely that the candidate countries may have adopted by the time of accession most or all of the legal instruments required by the Schengen acquis it is far less certain that they will be able to fully implement the Schengen standards at their frontiers upon accession. Some political voices in the Schengen countries have come out in favour of delaying accession until the candidates are able to prove their full compliance with the acquis. This could still take years and may disrupt the entire enlargement process. A politically less controversial and costly alternative, which has been gaining ground during the last two years, is to allow the candidates to join once they are ready formally to adopt the acquis but to leave them outside of the operational parts of the Schengen frontier control system until the Schengen members—on the basis of their monitoring system—declare them ready to ensure external frontier controls and security which are up to the Schengen standards. This alternative, however, would come at a price as well: the Schengen countries would in the interim maintain their present tight "external" frontier controls on their common borders with the new Member States. The seven years it took Italy (1990-97) and Greece (1992-99) to pass from formal Schengen membership to the opening of internal borders show that there can be a long interval before established Schengen members are prepared to abolish controls on their borders with new members. Accession with full maintenance of the current eastern frontier controls—a very visible dividing line between old and new Member States—is unlikely to be very popular in the candidate countries[19].

22. The third challenge for the European Union is to provide adequate help for the candidate countries in the preparation for taking on the Schengen external frontier control regime. During the last three years both the EU (through the Phare programme and some of the "Third Pillar" programmes such as GROTIUS) and the Member States (through bilateral "twinning" arrangements) have stepped up their help in the form of equipment, training and staff exchanges. Yet there can be no doubt that the candidate countries will still for many years be unable to meet the exacting Schengen standards without further support from the EU, primarily because of their huge deficits in modern frontier control installations and equipment. So far the EU—faced with severe budgetary restrictions for the foreseeable future—has been reluctant to make any commitments in this respect. There is also a lack of co-ordination between EU action and bilateral action by the Member States. The candidate countries, for their part, are not enthusiastic about diverting resources (including Phare programme funds) from other areas of internal reform towards a frontier control regime which is perceived as being partly against their own interests, as well as being imposed on them by the EU.


3   In particular Articles 3 to 8 of the Convention. Back

4   These applications exclude participation in those parts of the acquis which deal with border control: see the Committee's Report, UK participation in the Schengen Acquis (5th Report, 1999-2000). Back

5   The Convention came into force in March 1995 for the five original signatories plus Spain and Portugal. It took effect in Italy in October 1997, in Austria in April 1998 and in Greece in March 2000. Sweden, Denmark and Finland (plus two non-EU Nordic countries, Iceland and Norway) are currently putting in place arrangements for their full participation in the Schengen acquis. Internal border controls should be lifted with the other Schengen States in Spring 2001. Back

6   See the Committee's Reports Defining the Schengen Acquis (21st Report, 1997-98) and Incorporating the Schengen Acquis into the European Union (31st Report, 1997-98) for an account of the acquis and of the task of incorporating it into the European Union. Back

7   Most of these standards are laid down in the Common Manual on border controls. This is confidential, by virtue of the Decision of the Schengen Executive Committee of 14 December 1993 (SCH/Com-ex (93) 22 rev, amended by the Decision of 23 June 1998, SCH/Com-ex (98) 17). See Council of the European Union, The Schengen acquis integrated into the European Union (Brussels 1999), p. 178. Back

8   Giuliano Amato and Judy Batt, Final Report of the Reflection Group on the Long-term Implications of EU Enlargement: The Nature of the New Border (Florence, European University Institute, 1999), p. 57. Back

9   See in particular the EU "Common Positions" on Chapter 24 of the current accession negotiations (co-operation in the fields of Justice and Home Affairs) which were adopted by the Council of the European Union on 24 May 2000 (documents CONF-H 28/00, CONF-PL 28/00 etc.). See also Peter Hägel and Christian Deubner, Wenn Staatsgrenzen zu EU-Grenzen werden: Gefährdete Nachbarschaften in Osteuropa (Ebenhausen, Stiftung Wissenschaft und Politik, April 2000), p. 49. Back

10   See, for instance, the Commission's Composite Paper of October 1999, Reports on progress towards accession by each of the candidate countries (document 12053/99, ELARG 106). Of Poland the Commission writes that "the effectiveness of law enforcement bodies including police and border guard services require substantial improvement" (p. 39). A similar assessment is found in the EU "Common Positions" on Chapter 24 of the accession negotiations (see above, note 8) which highlight the need for the candidate countries to take further measures to ensure effective control of future external frontiers. A number of EU governments, including the UK Government (see evidence by Dominic Martin, Q 11), seem agreed that the candidate countries will be unable to achieve full Schengen compliance immediately upon accession. Back

11   A Proposal for a Council Regulation listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whole national are exempt from that requirement, brought forward under Article 62 of the EC Treaty, is currently under discussion (Document 6379/00, VISA 32 COMIX 185). If agreed, it will replace the existing EU and Schengen lists. In the form proposed by the Commission, the new Regulation would remove Romania and Bulgaria from the existing "negative list". This would obviously ease the problems for some of the applicant countries, in particular Hungary. Back

12   The rules for co-operation are mainly codified in the confidential Handbook on cross-border police co-operation (SCH/I(98)90). See Decision of the Executive Committee of 16 December 1998 (SCH/Com-ex (98) 52), Council of the European Union, The Schengen acquis integrated into the European Union (Brussels 1999), p. 600. Back

13   1998-EU Organised Crime Situation Report (The Hague, 1999), File nos. 2530-50 (open version). Back

14   See Judit Balász, 'Die organisierte Kriminalität in Ungarn', in Reinhard C. Meier-Walser, ed., Organisierte Kriminalität, Transnationale Dimension, Wege der Bekämpfung (München, Hans-Seidel-Stiftung, 1999), pp. 169-96. Back

15   However, the salaries of frontier guards, and problems of corruption, cannot be isolated from public sector salaries as a whole, and thus from the wider economic development of the applicant states. The Commission's Report on progress towards accession (op. cit.), p. 12, notes that "Corruption is widespread. It is exacerbated by low salaries in the public sector". Anti-corruption programmes are described as lacking conviction, and as having "limited results". Back

16   OJ L 191 of 7.7.98, pp. 8-9. Back

17   That is, land frontiers where there are no formal checkpoints (such as farm land or forest) and sea frontiers. Back

18   See the German Presidency's Structured Checklist for the evaluation of candidate countries in the fields of Justice and Home Affairs, submitted to the Collective Evaluation Working Party (document 5322/3/99), 29 April 1999. Back

19   A distinction must be drawn between the abolition of internal border controls by the Schengen states, and the right of free movement, which is guaranteed to all EU citizens (nationals of Member States), subject to the limitations and conditions stipulated in the EC Treaty. If an immediate right of free movement were to be granted to nationals of new Member States upon accession (which is by no means certain) they would effectively be put on the same footing as nationals of the United Kingdom or Ireland, neither of which are full members of Schengen. In such circumstances the maintenance of internal border controls might have relatively little impact on public opinion. However, the granting of free movement rights upon accession continues to arouse political controversy, notably in the front-line Member States. Although the question of free movement was raised by some witnesses, and is mentioned in the "summary of evidence", it is strictly outside the scope of this inquiry. Back


 
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