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By Jonas Bornemann, Research Assistant and PhD candidate, Chair of Public, European and International Law, Universität Konstanz 

In the 2017 State of the Union speech, Jean-Claude Juncker outlined his vision for the bloc’s future mode of integration. In this vein, the president expressed his confidence that time was ripe to align Member States’ commitments under EU law. Consonance should be attained in different fields, including prominently the Schengen Acquis. Thus, Juncker’s aspiration featured the Commission’s continuous insistence upon paving the way for Bulgaria and Romania into full Schengen membership. Identifying a window of opportunity, the president was determined to seize momentum in this regard and to do so ‘immediately’.

Besides this claim’s rigour, the final decision to lift restrictions in the implementation of the Schengen Acquis in Romania and Bulgaria, including the abolition of border controls with Schengen States, rests with the Council. However, since these Member States’ attempts to do so have been frustrated repeatedly, talk may prove cheap. Rather, one must wonder whether the absence of internal border controls – as ordained by Article 67 (2) TFEU – can be attained at Romanian and Bulgarian borders in the near future. Is Juncker’s call to grant access to the Schengen Acquis ‘immediately’ just a claim against long odds or does a ‘window of opportunity’ extend to Romania’s and Bulgaria’s chances to implement the entire Schengen Acquis as well?

Formulating a response to this question, the blogpost will employ two steps of investigation. It will first deliberate upon the legal framework facilitating the process of accession to full Schengen Acquis application with regard to Bulgaria and Romania. In particular, it will focus on respective criteria serving as prerequisite benchmarks to establish readiness for joining Schengen proper. Secondly, a compromise recently agreed within the Council will be examined. Against this background, Council Decision (EU) 2017/1908 informs an assessment whether Schengen States’ political reservations can be overcome. Does this measure facilitate the Schengen Acquis’ full application in Romania and Bulgaria, pushing open the alleged window of opportunity for those Member States’ Schengen ambitions?

Schengen Accession criteria: Fixed or moving targets?

It is first essential to consider the legal framework which sets the prerequisites of full Schengen accession for Romania and Bulgaria. Accordingly, this section will illuminate substantial and procedural benchmarks to allow the Acquis’ full application. What criteria exist to open all Schengen provisions to these respective States and by virtue of which procedure will it be attained?

Before the Treaty of Amsterdam entered into force, the procedure to ascertain applicants’ preparedness was delineated by the Schengen Executive Committee’s Decision setting up a Standing Committee to evaluate and implement its Acquis. This measure established both substantial and procedural standards for application. Envisaged arrangements included, first, a substantial evaluation by a Standing Committee and second, an Executive Committee decision pursuant to which the latter corroborated this assessment. Substantially, Chapter I of the Decision lists criteria decisive for the Standing Committee in doing so. Accordingly, evaluation shall ‘in particular’ focus on checks at external borders, surveillance of external land and sea borders, visas, conditions governing the movement of aliens, residence permits, police cooperation, mutual assistance in criminal matters, drugs , capability to operate the SIS, guarantees for personal data protection, a policy on expulsion and readmission as well as arrangements for movement within airports. On the basis of this non-exhaustive catalogue of criteria, the Standing Committee was obliged to determine against which standards it will test the applicant State. To this end, its report had to indicate precisely which elements of assessment it wished to scrutinise.

The Treaty of Amsterdam, in particular the Protocol on the integration of the Schengen Acquis into Union law, transferred this procedure into the EC-Treaty. Article 2 thereof stated that the Council ‘will substitute itself’ for the Executive Committee. Despite its ominous wording, the provision determines that the Schengen Acquis will enter into full effect within an applicant State pursuant to a decision taken by the Council. Furthermore, the protocol replaced the Standing Committee with a preparatory body within the EU ambit, namely the Schengen Evaluation Working Party (Scheval). For the procedure of Schengen Accession, the incorporation into EU law therefore propelled two aspects of continuity: First, the catalogue of criteria determined by the Executive Committee was not revised in substance and second, the procedure’s two-step nature remained unaltered. Applicant States are thus assessed in the light of criteria which are initially determined by Scheval. Subsequently, by unanimous vote, the Council renders the Schengen Acquis applicable. As such, Scheval is free to determine which aspects it will assess in the course of evaluation. Once it has fixed these criteria, however, they constitute fixed benchmarks and cannot be amended unilaterally.

In 2013, this regime was amended by virtue of Council Regulation (EU) No 1053/2013 at last. Romania and Bulgaria, however, were exempted from this measure’s effects since respective evaluations had already been completed successfully by the time of adoption. Elementary, the process of granting these Member States’ full Schengen application therefore remains subject to the procedure applicable before the adoption of Council Regulation (EU) No 1053/2013.

What is the place for Romania and Bulgaria in the Schengen area?

Since Romania and Bulgaria are both EU Member States, their place within the Schengen regime may require explication. The Act of Accession to the European Union 2005 determines that all Schengen provisions are binding on both States from the date of their accession. However, Article 4 thereof draws a distinction between these norms’ binding effect and their application. Accordingly, it outlines a set of Schengen provisions which ‘shall only apply […] pursuant to a Council decision’ which is to be taken ‘after verification in accordance with the applicable Schengen evaluation procedure’. Thus, even though the Schengen Acquis is already fully legally binding upon Romania and Bulgaria, several measures have not yet entered into effect within these Member States. These provisions include most notably the Schengen Borders Code’s Title III which facilitates the absence of border controls between Schengen States.

In order to render these norms applicable in Romania and Bulgaria, the Council takes its decision unanimously after consulting the European Parliament. Perhaps surprisingly, Article 4 of the Act of Accession in all its language versions seems to refer to this act as a ‘European decision’. Since the typology of legal acts provided for in Article 288 TFEU only refers to ‘decisions’, such wording begs the question whether the act’s ‘European’ nature insinuates any obligation on the side of the Council to take a common stance on the matter. However, since the Treaties do not provide for clarification in this regard, the legal merit of such phrasing remains vague and should not be overstated.

At the time of Romania’s and Bulgaria’s EU accession, the ‘applicable evaluation procedure’ referred to the Schengen Executive Committee’s decision and its incorporation into Union law. The assessment mechanism established that the applicants’ preparedness was ascertained against criteria determined by Scheval. To this end, the preparatory body chose a set of criteria which it deemed elementary in order to ascertain the applicants’ readiness for applying the Schengen Acquis entirely. Building upon these benchmarks, it adopted ‘a series of exhaustive reports containing factual descriptions as well as positive and critical assessments and recommendations.’ In June 2011, this reporting concluded that Romania and Bulgaria proved fit to apply the Schengen Acquis in its entirety.

Despite acknowledging the evaluation’s completion, the Council failed to take a decision granting Romania and Bulgaria the opportunity to apply all provisions which comprise the Schengen Acquis. The vote was inhibited by the Netherlands and Finland surmising that alleged persisting corruption within the applicant States would frustrate the bloc’s effective border management. In this vein, Dutch Prime Minister Mark Rutte reportedly stated that he wanted Romania and Bulgaria to ‘implement all the necessary measures: rule of law, fighting corruption, independent judiciary.’ Beyond the realm of border management, however, administrative integrity had not been included as a criterion to Romania’s and Bulgaria’s Schengen evaluation reports. Therefore, the European Parliament ascertained correctly that reservations presented within the Council effectively constituted ‘additional criteria […] imposed on Member States which are already in the process of joining the Schengen area’.

Parliament’s objection bears some legal weight. By virtue of the Council’s conclusions of June 9th 2011, the evaluation process ‘has been completed’. Nevertheless, introduction of additional criteria effectively constitutes a practice of sustained evaluation. Since Article 4 of the Act of Accession obliges Romania and Bulgaria to comply merely with ‘the applicable Schengen evaluation procedure’, the respective States are legally not bound by an additional evaluation regime. In this light, the Dutch argumentation seems unconvincing insofar as it attempts to invoke the argument of the applicant Member States’ insufficient progress. On the flipside, it holds true that corruption may undermine the effectiveness of border management and thus constitutes an implicit prerequisite for the evaluation reports’ criteria. In the same line, the claim to implement ‘all necessary measures’ may substantially correlate with the Cooperation and Verification Mechanism (CVM); the general post-EU-accession monitoring regime to which Romania and Bulgaria are subject. It is therefore conceivable – as the Dutch government had argued – that they did not impose new criteria but merely insisted upon those established by Scheval and sought to rely on the CVM for their verification. Nevertheless, it should be noted that the 2005 Act of Accession does not anticipate this practice of linking the CVM to Schengen evaluation.

Anyway, there is no legal automatism following from the evaluation procedure’s completion. The Council’s decision to grant Romania and Bulgaria full application of the Schengen Acquis remains subject merely to political preference, not – as the vetoing Council Members had stipulated – to insufficient progress within the evaluation procedure. Political reservation and the Council’s persisting abeyance appears to resonate a crisis of mutual trust between Union Member States rather than the applicant’s lack of progress. Be that as it may, Romania’s and Bulgaria’s accession to full Schengen Acquis application lingers in political impasse in the meantime.

A path into the Schengen Area for Romania and Bulgaria? Analysing Council decision (EU) 2017/1908

Since 2011, this situation remains unaltered; the Council’s deadlock undissolved. When President Juncker addressed this unsettling situation in his State of the Union speech 2017, the claim for Schengen’s full application in Romania and Bulgaria aimed high. He endorsed the applicants’ efforts to disclaim political reservations and affirmed the Commission’s support in this process. But how could deadlock be overcome? What venues exist catering to such end?

To investigate on this aspect, the recently adopted Council Decision (EU) 2017/1908 may shed a light on potential pathways towards full Schengen application in Romania and Bulgaria. Arguably, it resembles a blueprint for granting these Member States progressive access to the Schengen Acquis, facilitating the partition of certain elements thereof; in casu passive access to the Visa Information System (VIS). Does this measure establish a new approach to opening the Schengen Acquis for Romania and Bulgaria?

Substantially, Council Decision (EU) 2017/1908 seeks to enable the applicant Member States to draw intelligence from the information system in order to examine short-stay visa applications or to decide upon their validity. However, the right to access such information excludes the system’s active use, i.e. the capacity to enter, delete or amend data. Procedurally, Council Decision (EU) 2017/1908 renders access to the VIS conditional upon agency scrutiny by EU-lisa. Article 1 (1) therefore stipulates that the provision will apply ‘following the successful completion of all related comprehensive tests’ and after notification to the Member States concerned as well as the Commission.

What impact will Council Decision (EU) 2017/1908 have on Romania’s and Bulgaria’s aspirations to fully apply the Schengen Acquis? Does it serve as a blueprint for further accession? In the first place, it must be noted that the measure puts in place a technical evaluation procedure before allowing applicants the benefits of passive access to the VIS. Qualitatively, this assessment differs from the Schengen evaluation insofar as it merely concerns technical aspects of operating the system. On the one hand, this additional scrutiny regime will be conducted by EU-lisa – an expert body that bases its assessment on objective benchmarks. By virtue of this Decision, the Council accepts the applicant Member States’ automatic authorisation to apply this specific Schengen provision after evaluation’s successful completion. On the other hand, Article 4 of the Accession Act obliges Romania and Bulgaria merely to undergo the ‘applicable evaluation procedure’ – a process the Council had already declared complete. Thus, this constitutional provision seems to exclude the introduction of another scrutiny mechanism from the one conducted by Scheval.

From the perspective of the applicant Member States, this provision may therefore be regarded as horse trading. In order to benefit from the VIS, they are required to accept a procedure unintended by the Accession Act. Besides the technical nature of scrutiny, Romania and Bulgaria would accept an additional regime of control which may be hard to sell politically to the electorate. On a more positive note, after such scrutiny, this particular Schengen provision’s application will not be blocked by political reservation in the Council. For the European Parliament, the benefits of such successive application of individual Schengen provisions outweighed the disadvantage of accepting an additional assessment procedure.

Moreover, Council Decision (EU) 2017/1908 may advocate a step-by-step approach to apply the Schengen Acquis in Romania and Bulgaria. Yielding a partial division, the Council seems willing to enact those provisions which it deems eligible to apply within the applicant Member States. This holds true also for the former’s willingness to open related information systems to the applicant Member States, namely lifting remaining restrictions to the Schengen Information System. It could therefore be argued that the Schengen Acquis’ dissection into separate instruments methodised the effective dissolution of the Council’s political deadlock. Regarding access to the VIS, objective EU agency supervision may have further eased Member States’ hesitance to admit Romania and Bulgaria full participation within Schengen.

However, it should be born in mind that Council Decision (EU) 2017/1908 is characterised primarily by its reservations towards the applicant Member States. Most notably, the benefits granted to the applicants concern a passive, readable-only use of the VIS; equally, the introduction of an additional evaluation mechanism attests Member States’ hesitance rather than their willingness to grant Romania and Bulgaria the benefits of the Schengen Acquis. In context, the adoption of Council Decision (EU) 2017/1908 is furthermore linked to an institutional compromise reached in the context of installing the EU Entry/Exit System. In this vein, the co-legislatures agreed to include Romania and Bulgaria into the latter regime considering passive access to the VIS a prerequisite for doing so. A similar arrangement includes full access to the SIS II. Lifting the Schengen States’ reservations to grant passive access to those systems therefore caters to the establishment of a comprehensive scheme of smart borders. By doing so, Council Decision (EU) 2017/1908 inflicts a rationale that differs from the acknowledgement of Romania’s and Bulgaria’s fitness to apply the Schengen Acquis, namely the nurturing of its members’ genuine security interests.

What odds for a new strategy towards full Schengen application in Romania and Bulgaria?

In his State of the Union speech, Juncker mentioned a ‘window of opportunity’ for the Union. Does this opportunity also extend to Romania’s and Bulgaria’s aspiration to fully accede to the Schengen Acquis?

Rather not. As demonstrated above, the Acquis’ full application within Romania and Bulgaria is subject exclusively to political leaning within the Council. Against the background of reported migration routes across the Black Sea, pressure to maintain permanent border controls between these States and the Schengen area respectively is likely to linger. Rather than seizing an alleged ‘window of opportunity’, there is little to indicate that the Council will admit of full accession to the Schengen Acquis for Romania and Bulgaria.

An analysis of Council Decision (EU) 2017/1908 corroborates this finding. At first sight, the measure appears to unlock a dossier marked by political impasse for several years. However, Romania’s and Bulgaria’s passive access to the VIS primarily caters to the Schengen States’ genuine security interests. Whilst the Council expressed its assent to grant this possibility to the Romania and Bulgaria, that arrangement comes at a price for the latter: The applicant Member States may accept the Schengen Acquis’ further dissection, receding its full application within their territory into the far distance, and furthermore, tolerate an additional regime of tests to indicate once again their preparedness to undertake relevant technical operations.

Moreover, the practice embodied in Council Decision (EU) 2017/1908 may conflict with the 2005 Act of Accession. First, it is doubtful whether this primary law statute permits the dissection of specific provisions from the Schengen Acquis which are not yet applicable in Romania and Bulgaria. Accordingly, Article 4 thereof lists in its Annex those Schengen provisions which shall be ‘applicable in Bulgaria and Romania from the date of their accession.’ Since all remaining norms will apply ‘pursuant to a European decision’, the latter segment may suggest that the Council is ought to grant full Schengen membership by virtue of one single (European) decision.

Second, it is not inconceivable that Romania and Bulgaria could – after adoption of Council Decision (EU) 2017/1908 – file a procedure under Article 265 TFEU against the Council for failure to act. Such claim would be based on the assumption that the 2005 Act of Accession formulates with a “sufficient degree of precision” (as concluded in para. 68 Case 13/83 Council v. EP) a legal obligation to take the respective decision. This would be the case if Article 4 thereof formulated an automatism, i.e. the Council’s obligation to adopt this ‘European decision’ after positive Schengen evaluation.

Beyond these legal considerations, it is fair to say that Council Decision (EU) 2017/1908 fails to provide a blueprint for further opening the Schengen Acquis to the applicant Member States. Unless the Schengen Member States consent that opening parts of the Schengen Acquis to Romania and Bulgaria benefits their very interests, political reservation will prevail. For Schengen members in the Council, this constitutes a comfortable practice. On the one hand, granting Romania and Bulgaria access to the VIS as well as the SIS II will benefit their own security interests. On the other, they can maintain internal border controls with Romania and Bulgaria and block the enlargement process of the Schengen Area.

Council Decision (EU) 2017/1908 did therefore not cut a Gordian knot for Romania’s and Bulgaria’s aspirations to apply the Schengen Acquis fully. On the contrary, their accession to the Schengen Acquis remains subject to substantial constraints and predominantly reflects Schengen States’ wish to improve the level of internal security, notably within the context of the EU Entry/Exit system. For Romania and Bulgaria, at the flipside, it entails acceptance for the Schengen Acquis’ further dissection and the obligation to undergo a technical evaluation not envisaged by their Accession Act.

In the light of Juncker’s claim to grant full application of the Schengen Acquis ‘immediately’, Council Decision (EU) 2017/1908 falls short of the Commission’s objective. Accordingly, it frustrates Romania’s and Bulgaria’s hopes to acquire full Schengen membership anytime soon. Whilst building trust remains to be a lengthy exercise, Council’s political reluctance to grant these Union Member States full application to the Schengen Acquis will persist.