:::: MENU ::::
Posts tagged with: Schengen

The term “economic Schengen” needs to be banished before it gains any traction

Screen Shot 2015-02-24 at 15.09.29

Henrik Enderlein and Jean Pisani-Ferry started to talk of an “economic Schengen” in the autumn of 2014, and Enderlein and Germany’s economy minister Gabriel were at it again today at a conference in the BMWi in Berlin. This is a really bad idea for four reasons, each of which I will explain.

Schengen is actually a village in Luxembourg. It happens to be the place where an agreement on abolishment of border controls was signed in 1985. The name stuck. It is part of a trend where towns give their names to things the EU does, because the agreements were struck there (Treaty of Lisbon, Ioannina Compromise etc.) The thing is that the name bears no relationship to what the agreement actually is. So to then apply the term Schengen to something other that a borders issue doubles the absurdity.

Second, when you say Schengen, that either means an area that is damned hard to get into (if you are coming from outside the EU), or a borderless EU system that keeps on being challenged by its own politicians, and even if you believe in it, it does not work properly as I have documented many times on this blog. In short, if you even know what Schengen is, you are rather unlikely to have a positive view of it. A Schengen for the economy hence sounds like a pretty disastrous idea, even before you get to the detail.

This is how Enderlein explains the idea on Twitter:

If you have any idea what that means then you’re brighter than I am. Or you’re the sort of person that likes abstract concepts more than practical policy recommendations.

The Schengen Agreement was needed outside the EU Treaties in 1985 precisely because there was no way to do what the signatories wanted to do inside the EU Treaties. No legal basis existed. So the signatories started with a separate Treaty that was then eventually integrated within the European Union. This is not the case when it comes to economic policy – as Enderlein and Pisani-Ferry put it, their proposals are to boost economic growth, and to focus on energy and the digital Single Market. Competence to cope with both of these can already be found very easily within the Treaty of Lisbon.

Anything concluded outside the EU Treaties will not make use of the EU’s institutions that, despite their many flaws, at least have some sort of functioning representative democracy through the presence of the European Parliament. There is also the Enhanced cooperation procedure in the Treaty of Lisbon that allows initatives among smaller groups of Member States, staying within the EU institutional framework. So anything agreed, Schengen-like, outside the EU Treaties is going to be intergovernmental and hence less accountable.

Policy outcomes
Enderlein and Pisani-Ferry point out that more action is needed on energy and the digital Single Market. Yet there is plenty of work already being done in these two areas – all of Cañete’s work on the EU Energy Union, and all of the work started by Kroes and continued by Ansip and Oettinger on changes to the digital Single Market, to foster cross border digital services, reform copyright and end roaming. Also in both areas the very countries that are supposed to be the motors of the economic Schengen, France and Germany, are actually brakes to progress rather than the courntries pushing for more speedy action. France worries about copyright reform, while Germany is more worried about how much money the state can rake in from Deutsche Telekom than it is about dealing with roaming or net neutrality. Differing views between France and Germany on renewables and nuclear are a further stumbling block. Further, when it comes to wider issues of economic growth, there is a broad consensus at EU level about what changes are needed to labour market law across the EU – that is what the European Semester reports are supposed to examine.

So, to conclude, an “economic Schengen” is a nightmare of communication, it is questionable as to whether it is legally necessary, it is unlikely to be democratic, and the countries that are supposed to back the core policies within it are the ones stalling the progress in the policy areas just now.

Bin this term!

What does it take for the Commission to take a Schengen complaint seriously?

Back in May I was subjected to the most extraordinary border control identity check at Perpignan station. I have blogged the transcript of the encounter here, and sent this to the European Commission, hoping they see this as non-Schengen compliant. The redacted letter of response from the Commission is here:

schengen-perpignan2Reading this I now come to the conclusion that I do not know what I have to do to make the European Commission take any such complaint seriously. Continue Reading

Non-Schengen (and non-French law?) compliant border control at Perpignan, 31st May, 1106


Three officers of the French Police Nationale boarded TGV 9702 at Perpignan at around 11am on 31st May, reaching my seat at 1106. The TGV was still stationary in Perpignan at this time, due to an obstacle on the tracks further north that held the train in the station approximately 30 minutes after its scheduled 1051 departure time.

In Perpignan two TGV sets are coupled together – the one in which I was travelling had arrived from Barcelona, and another empty set is added at Perpignan. The doors of my set had nevertheless been opened for passengers to disembark and, importantly, embark (at least 4 passengers came and took their places in my carriage), meaning not all passengers on the train were arriving from Spain. I cannot vouch for other carriages, but all passengers in my carriage (number 16, upper floor) were controlled, and the police had boarded the train more than 5 minutes before they controlled me as I had seen them on the platform. On this, once more, we are back to the headache of what is systematic, or not.

Continue Reading

Commission replies to my Rzepin Schengen complaint

COMM-letterBack on 11th March I documented an interesting incident at the Polish-German border between Rzepin and Frankfurt(Oder) where a Polish border guard demanded my passport and would not accept a driving license as I was about to cross the border. For me this crossed the border between what is an identity check (permissible) and a border control (not permissible) within Schengen, so I submitted an official complaint to the European Commission about the issue, and today received the reply. A redacted scan of the letter is to the right – click it to view the full resolution version.

The first problem is with the lines “he explained it was an identity check and not a border control” while re-reading the transcript of the incident shows this was very far from being explained.

The second problem is with the paragraph about the modus operandi of the check – this implies that it is OK for the check to be like a border control, providing it does not happen on every train.

The third problem is that an absence of complaints is cited as reason for there not being reason to further pursue my complaint. Friends of mine who also cross this border regularly may disagree! Plus there have even been news stories about checks on this border, and how many people actually ever make complaints when there is a breach of EU law? It’s not as if everyone is as much of a nerd about this as I am.

The final paragraphs of the letter are interesting, in that they provide some additional legal clarification about what sorts of documents are and are not needed when on the territory of a Member State, and seem to leave the Commission and Member States room for manoeuvre to have tougher ID check requirements if someone is to cross a border. How that’s not akin to a border control I have no idea. The update at the bottom of my original blog entry also looks at this for the Polish law on the issue.

Anyway, as ever, the fight on this goes on. And if you are ever checked then see FreeMovement.net for details of how Schengen is supposed to work, and submit an official complaint to the Commission!

Non-Schengen compliant border control between Rzepin and Frankfurt (Oder), 11th March 2014, 2156

Screen Shot 2014-03-12 at 01.40.243 police officers or border guards, 2 Polish and 1 German as far as I could tell (the one who spoke to me was Polish) boarded train EC 40, the Warszawa – Berlin express, at Rzepin on 11th March 2014. I was in the front carriage of the train, where the officers boarded. A few minutes after the train departed Rzepin the police passed through the train, and the following conversation followed when I was approached by the officer. This is the word for word transcript of the conversation:

Border Guard (BG): (says something in Polish)

Jon (J): Sorry I don’t speak Polish

BG: Polish border guard. I would like to see your ID or passport.

J: It’s an identity check or a border control?

BG: No it’s not a border control

J: (I get my wallet and take out my German driving license)

BG: It’s not enough. It’s a driving license. Your ID or passport.

J: Could you tell me why that’s not enough?

BG: Because the driving license does not allow you to cross the border

J: But this is an identity check not a border control?

BG: It’s not a border control.

J: So you’re demanding the document from me…

BG: I’m not demanding you. The law says that in order to cross the border which you are going to cross…

J: So it IS a border control

BG: No it is not a border control. It is an identity control.

J: So hence my driving license is OK.

BG: You need to show what you need to cross the border.

J: Sorry. That is a contradiction. That is a border control.

BG: It isn’t.

J: (I show him my passport)

BG: When you are going from France to Great Britain they do the same as here.

J: Yes, I know, I teach European law, that’s why I am asking you.

BG: European law says exactly what I told you.

J: No it doesn’t.

BG: You better read… (Border Guard walks off)

So what is going on here?

The official had no obvious emblems on his clothing, so I cannot confirm whether he was indeed a policeman or border guard. His jacket was obscured by a yellow high visibility vest. However he introduced himself with the words “Polish border guard”.

Border controls are not allowed in Schengen, and ID checks in border areas are regulated by Article 21 of the Schengen borders code:

Article 21
Checks within the territory

The abolition of border control at internal borders shall not affect:

(a) the exercise of police powers by the competent authorities of the Member States under national law, insofar as the exercise of those powers does not have an effect equivalent to border checks; that shall also apply in border areas. Within the meaning of the first sentence, the exercise of police powers may not, in particular, be considered equivalent to the exercise of border checks when the police measures:

(i) do not have border control as an objective,
(ii) are based on general police information and experience regarding possible threats to public security and aim, in particular, to combat cross-border crime,
(iii) are devised and executed in a manner clearly distinct from systematic checks on persons at the external borders,
(iv) are carried out on the basis of spot-checks;

The check to which I was subjected clearly breaches (iii) – the officer introduced himself as a border guard, and talked about “the border you are going to cross” as if this were central to the control he was about to carry out. The guard is right that I do need more than a driving license to cross the border, but he also has no right to demand that from me as he is only conducting an identity check.

The further question then arises: if this were simply an identity check, and not a border control, what are the ID requirements for non-Poles in Poland. The law regulating this is here (in Polish). The important part of this is § 4, Google translated as follows:

§ 4 The officer determined the identity of the person legitymowanej based on:
1) ID card;
2) passport;
3) foreign identity document;
4) else establish a reliable instrument equipped with a photograph and indicating the number or series;
5) statements of another person, whose identity was determined on the basis of the documents referred to in paragraphs 1-4.

So what is my German-issued photocard driving license? Is that covered by 4) or not? If so then the correct procedure would have been similar to the Puttgarden experience where the official could have checked my identity on the basis of the driving license alone, and would have no right to demand to see my passport.

Anyway, I will submit an official complain to the European Commission about this to test what is happening here. If you’ve managed to read this far then you might also be interested in similar stories from St Jean de Maurienne and Padborg, and the website dedicated this this issue – FreeMovement.net

[UPDATE, 12.3.2014 at 0200]
Since publishing the original blog entry, I have been sent the link to the Polish law covering the border guard rules. PDF here. The rules there are rather similar to the law above that applies to the police – again Google Translated:

§ 4 The officer determined that the person identity legitimacy reformed on the basis of:
1) the identity card;
2) passport document,
3) the travel document;
4) any other niebudzacego doubt a document bearing a photograph-and assigned a number or series;
5) benefits a person who the officer is known to the person;
6) benefits of another person, whose identity it was-cond breakthrough was determined in a way, about whom referred to in paragraphs 1-5.

If Gibraltar wants to solve its border headache with Spain, it should join Schengen

gibraltarSo the Spain-Gibraltar border dispute rumbles on. Queues at the land border to enter Gibraltar persist, and suggestions abound that Spain may introduce a charge to cross from Gibraltar into Spain. Meanwhile Tory MEP for the South West & Gibraltar, Ashley Fox, has called on the European Commission to take immediate action and send a team to check what’s happening at the border.

It strikes me that the Commission is not going to care too much about checks and delays at the border. This complaint, after all, comes from the UK, and the UK does precisely that to any visitor coming to the British Isles from anywhere else in the EU as the UK is not in Schengen. Plus the UK’s political capital on any Justice & Home Affairs issue is very low in Brussels just now. So I cannot see the Commission caring too much about some queues as a result of border checks. Charging to cross a border is a different matter, but we are not there yet.

But what should Gibraltar do?

Here’s an idea. Rather than trying to whip up nationalist fervour in the UK, how about making a case for Gibraltar to join Schengen? That would mean Spain would not actually be allowed to control systematically at the border to Gibraltar. Problem solved.

How then could it work?

Gibraltar is part of the EU, although not a part of the common VAT area or customs union (details here). But neither of those has stopped Switzerland joining Schengen. There is also the precedent of Mount Athos that is in Schengen. There are also numerous precedents for parts of Member States being in Schengen, and others not being in Schengen – French overseas territories for example. Furthermore, Gibraltar is not part of the UK-Ireland Common Travel Area, so passports are needed for travel to the UK. This would mean Gibraltar joining Schengen would be a lot less complicated than the Republic of Ireland doing so.

To do so two things would have to happen. The UK government would have to agree to let Gibraltar join Schengen (but if it took a diplomatic problem off their hands, why not agree?) and then all current EU Member States would have to agree to its accession. If Spain were to threaten to veto, other Member States would surely point out Spain’s inconsistency as it is itself within Schengen and has no problem with the principle. If Gibraltar were to signal its intention to join Schengen it would also surely receive a more favourable attitude from the Commission in the meantime.

So then folks, when you face a border dispute, how about thinking of getting rid of the border?

FreeMovement.net – mapping breaches of Schengen

Screen Shot 2013-04-30 at 11.09.02As any regular reader of this blog knows, non-Schengen compliant border controls (and my documentation of them) have been a regular topic in the last few months. I’ve been checked at St Jean de la Maurienne, Buchs, Puttgarden, Oldenburg and Padborg recently, and further in the past at Brenner and Venlo and Paris. With the help of my blog readers I have started to work out what documentation I need to show at borders, and how this varies between different Member States.

All of this work has now culminated in the launch of a new website – FreeMovement.net – that went online yesterday, and has been covered in this week’s New Europe newspaper in Brussels. The basic idea is that if you cross a border and are subjected to a check then you report it. This can be done on the website, or through an iPhone and an Android app. The site is an application of the open source Ushahidi tool.

The idea is that reports from citizens should help work out the patterns of border checks, and that this data could then help push the European Commission to conduct proper investigations about breaches of Schengen. At the moment it seems that some borders – notably in and out of France (especially to Italy), and Denmark-Germany, are hot spots. But as the site develops that pattern may change.

Anyway, if you are a regular border-crosser then do have a look at the site and report breaches as and when you encounter them!

A little Brussels-London security paranoia case study – this coming Friday

I have not taken Eurostar recently, but judging by comments posted on my previous blog posts about the service, it seems that the security paranoia that afflicts the route has not diminished.

Anyway, for the first time in months, I am going to be on Eurostar on Friday this week, and am taking my journey as a little experiment.

I will be on service number 9157, between Brussels and London, leaving Brussels at 1856. This is the Brussels – London timetable excerpt (full PDF here):

Screen Shot 2013-04-16 at 14.25.57

Right then. My train does stop in Lille Europe, and not in Calais.

The next task: can tickets even be booked on this service between Brussels and Lille? I used SNCB’s search to check this, and it only shows trains 9133 (1256 departure), and 9161 (1952 departure) – i.e. it will not let me book Brussels – Lille on train 9157. I also checked with the same search on Capitaine Train, and it is even clearer – train 9157 shows up, but the site tells me that booking anything on it for Brussels – Lille is impossible. I have also tried multiple days for my searches, just to make sure that it is not only because one service is full.

So train 9157 does not set down any passengers in Lille, it only picks them up, and beyond Lille it does not stop the whole way to St Pancras. This means that the Lille Loophole does not apply to this service (but would apply to trains 9133 and 9161).

What does this mean for security checks on board this service? It means that a passport check by the UK Borders Authority in Brussels should suffice, and the same for passengers boarding in Lille. No further checks should be needed on board the train, nor at St Pancras.

Let’s see what happens on Friday, because I would be really surprised if that is actually what happens.

[UPDATE: thanks to digging by @philrichardsuk and I, we are now even more confused than we were. It seems SNCB can only offer Eurostar tickets up until 27th April inclusive, at the time of writing, and often only train 9133 (1256 departure), and 9149 (1656 departure) show, and not the 1952 departure. In any case, I think the main gist of this piece holds!]