study guide ordinary legislative procedure european parliament … · 2019-04-23 · study guide...

2nd – 5th May 2019

Study Guide

Ordinary Legislative Procedure

European Parliament – Council of the EU

Website: http://euromun.org Facebook: EuroMUN Instagram: @euromun

2

Table of Contents

WELCOME LETTER FROM THE SECRETARIAT _____________________________________________ 3

INTRODUCTION ____________________________________________________________________ 4

THE EUROPEAN PARLIAMENT: HISTORY AND FUNCTIONS ___________________________________________ 4 THE COUNCIL OF THE EUROPEAN UNION: HISTORY AND FUNCTIONS __________________________________ 6 THE ORDINARY LEGISLATIVE PROCEDURE _____________________________________________________ 8

TOPIC A: DEVELOPING THE EUROPEAN NEIGHBOURHOOD POLICY AND THE PRE-ACCESSION ASSISTANCE ______________________________________________________________________ 12

INTRODUCTION – THE 2003 PROJECT ______________________________________________________ 12 RECENT DEVELOPMENTS – “MORE FUNDS FOR MORE REFORM”? ____________________________________ 13 TOWARDS A NEW FRAMEWORK FOR THE ENP _________________________________________________ 15 THE ENP AND ITS CONTEMPORARY CHALLENGES _______________________________________________ 16 INTRODUCTION: THE EU ENLARGEMENT PROCESS IN A NUTSHELL ____________________________________ 16 CONTEMPORARY CHALLENGES I: THE BALKANS AND TURKEY _______________________________________ 17 CONTEMPORARY CHALLENGES II: SYRIA AND THE MIDDLE EAST _____________________________________ 18 CONTEMPORARY CHALLENGES III: A EUROPEAN GEOPOLITICAL ACTIVISM? _____________________________ 20 CONCLUSIONS ______________________________________________________________________ 20

TOPIC B: THE SCHENGEN INFORMATION SYSTEM REGULATION _____________________________ 21

PART I – CURRENT STATE OF THE SCHENGEN INFORMATION SYSTEM _________________________________ 21 PART II - SIS IN PRACTICE: PRAISE AND CRITICISM ______________________________________________ 23 THE SCHENGEN INFORMATION SYSTEM’S POSITIVE IMPACT IN PRACTICE _______________________________ 23 CRITICISM _________________________________________________________________________ 23


3

Welcome Letter from the Secretariat

Dear delegates,

The EuroMUN 2019 Secretariat would like to warmly welcome you to the 11th edition of this conference. We are excited to provide an academically challenging experience which will motivate you to engage in insightful discussion while exploring our lovely city through the planned social program. Hopefully, you will enjoy the various events that will accompany the sessions, such as our talent night, our delegate’s ball and our scavenger hunt through the city.

Our conference attracts individuals from over fifty nations to the city of Maastricht. This means that you will encounter points of view that will be very dissimilar to your own. See this conference as an opportunity to push yourself outside of your comfort zone, alongside people who might seem different, but at their core, just like you, are looking to expand their horizons beyond what they are confronted with at home. Be respectful but don’t be afraid to challenge your beliefs and have them challenged in return. EuroMUN is a forum for discussion: take advantage of it, challenge yourself.

The slogan for this year’s edition of EuroMUN is: Exploring the European Idea.

The European Idea is not geographically limited, but it refers to the goals of European integration. It demonstrates a move away from wide-scale disputes and towards collaboration. Every institution, organization, body, and committee represented at EuroMUN reflects the same idea: the will to work together instead of against each other. That is what is at the core of this notion.

On that premise, the secretariat would like to pose the following question to you: What does the European Idea mean to you? Is it being connected through a common history? Or is it about staying united through adversity, change and the distinct characteristics of our culturally rich community?

Maastricht, the city where the Treaty on European Union was signed, provides the perfect backdrop to explore this concept. As the university hosts a diverse community of students from all over the world it truly demonstrates the possibilities the move towards collaboration can bring to the individual and the community. While we might not always fully appreciate the former, the benefits are not to be taken for granted. The environment in Maastricht and the assembly of delegates permit EuroMUN, now for the 11th time to provide this unique experience. Without each of these components, it would be impossible to replicate.

We hope that you enjoy your time at the European Model United Nations Conference 2019.

When in doubt: #fruitful

The EuroMUN Secretariat


4

Introduction

The end of World War II marked the start of a period of peace and cooperation among nations. In 1957, with the signing of the Treaty of Rome, the European Economic Community was founded; it was the ancestor of the contemporary European Union. Nowadays, it consists of seven institutions which are mentioned in Article 13 of Treaty of the European Union (TEU)1: The European Parliament, the European Council, the Council of the European Union, the European Commission, the Court of Justice of the European Union, the European Central Bank and the Court of Auditors2. That same article states that these institutions “shall aim to promote its values [of the European Union], advance its objectives, serve its interests, those of its citizens and those of the Member States, and ensure the consistency, effectiveness and continuity of its policies and actions”3.

The European Parliament: history and functions

During the 1950s, under the European Coal and Steel Community, the role of the European Parliament was confined to a merely consultative “Common Assembly” composed by 78 representatives of the national Parliaments of the Founding Members (France, Italy, Germany and the Benelux). Two main changes occurred in 1962, when the “European Parliament” was coined for the first time after the creation of the European Communities, and in 1979, when the first European parliamentary elections took place. Its composition gradually widened, from 142 seats after the Treaty of Rome to the current plenary of 750 Members of the Parliaments, plus the President. At the moment, MEPs are divided in eight different political parties: the European People’s Party (EPP) is the biggest party in the EP, counting 217 seats. From a simple consultative body, it gradually gained supervisory functions, especially over the EU Budget and the President of the Commission. The legislative powers of the European Parliament were eventually set forth in the Maastricht Treaty and, ultimately, in the Lisbon Treaty in 2007. Since the Treaty of Maastricht, the Parliament was given an ever-growing

1 EUR-Lex.europa.eu. (2019). Treaty of Lisbon. [online] Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12012M/TXT&from=EN [Accessed 13 Mar. 2019]. 2 Europa.eu. (2019). European Union – Institutions and Bodies. [online] Available at: https://europa.eu/european-union/about-eu/institutions-bodies_en [Accessed 13 Mar. 2019]. 3 EUR-Lex.europa.eu. (2019). Treaty of Lisbon. [online] Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12012M/TXT&from=EN [Accessed 13 Mar. 2019].


5

important role in the then co-decision procedure, until its total recognition as chamber on an equal footing with the Council4 and the renaming of co-decision “Ordinary Legislative Procedure”.5

As stated in Art. 14 TEU, the European Parliament shall “exercise functions of political control and consultation as laid down in the Treaties”. It is the political and democratic core of the EU institutions; its members being regularly and directly elected by the Union citizens every 5 years. In this sense, the European Parliament is seen as an “important forum for political debate and decision-making at the EU level”6. Acting as co-legislator together with the Council, its main task is to examine and amend the Commission proposals under the ordinary legislative procedure (OLP). In other exceptional cases, following special legislative procedures, the Parliament may act alone or, on the contrary, be excluded from the legislative process in favour of the Council. Sometimes, however, the Parliament may give its consent or submit observations that may be taken into utmost consideration by the Council or other bodies, depending on the wording of the particular provision. Apart from the legislative function, the European Parliament has important budgetary functions, as laid down in Art. 14(1) TEU. In the OLP procedure leading to the adoption of the budget, the main power is held by the Parliament. If a shared agreement cannot be reached, the power to adopt it may still fall on the Parliament alone. A third crucial function relates to the appointment of the President of the Commission and, more generally, the approval of the future Commissioners during the appointment period. At the same time, Art. 266 TFEU empowers the European Parliament to set up a Committee of Inquiry “with the task to investigate, without prejudice to the powers conferred by the Treaties on other institutions or bodies, alleged contraventions or maladministration in the implementation of Union law”. The Parliament also elects the European Ombudsman, whose tasks are described in Art. 228 TFEU.

4 http://www.europarl.europa.eu/about-parliament/en/in-the-past/the-parliament-and-the-treaties/treaty-of-lisbon 5 Art. 294 TFEU. 6 http://www.europarl.europa.eu/about-parliament/en


6

Its main role deals with examining and reporting maladministration claims occurring within the EU institutions.

The Council of the European Union: History and Functions Regarding the Council of the European Union, it was firstly introduced as the Special Council of Ministers of the European Coal and Steel Community, which was established in the Paris Treaty (1958).7 Today, it is known as the Council of the European Union or the Council. More specifically, “the Council shall jointly with the European Parliament, exercise legislative and budgetary functions” (Article 16§1 TEU8), the coordination of the economic policies of the Member-States via the Economic and Financial Affairs Council (ECOFIN) and the implementation of the Common Foreign and Security Policy (CFSP), which is part of the foreign and security policy, as set out in Title V of the TEU. Last but not least, the Council unanimously adopts Decisions on a Proposal of the High Representative of the Union for Foreign Affairs and Security Policy or an initiative of a Member-State (Article 42 TEU).9

Regarding their responsibilities and functions, the Council of EU first negotiates and adopts EU legislative acts in cooperation with the European Parliament through the Ordinary Legislative Procedure. Moreover, the Council is responsible for the coordination of the Member States’ policies by adopting EU policy frameworks10 that are common for all. Also, it develops the Union’s CFSP

based on the guidelines of the European Council and it concludes international agreements by providing the mandate to the European Commission to negotiate with non-EU countries and international organizations. Last but not least, the Council together with the European Parliament approves or rejects the EU budget proposed by the European Commission as cited

7 Consilium.europa.eu. (2019). History - Consilium. [online] Available at: https://www.consilium.europa.eu/en/history/?filters=1734 [Accessed 18 Feb. 2019]. 8 ibid 9 Moussis, N. (2011). Access to the European Union: Law, Economics and Policies. [online] Available at: http://www.europedia.moussis.eu/books/Book_2/2/4/1/4/?lang=en&all=1&s=1&e=10 [Accessed 13 Mar. 2019] 10 Consilium.europa.eu. (2019). The Council of EU: What does the Council of EU do? [online] Available at: https://www.consilium.europa.eu/en/council-eu/ [Accessed 27 Mar. 2019].


7

in Article 314 of the Treaty of the Functioning of the European Union (TFEU)11 – a procedure that lasts from September 1st to December 31st.12 After the adoption of the Lisbon Treaty, most Council’s decisions need a qualified majority voting procedure (QMV) in order to pass amendments and adopt legislative acts. The majority is calculated taking into account 55% of countries, which equals 16 countries that simultaneously represent 65% of the European Union’s population. In order to block a decision, there must be at least 4 countries that are against it, representing 35% of EU’s population (Article 16§4 TEU).13 The Council is composed of representatives of each Member State at a ministerial level as is mentioned in Article 16§2 TEU.14 It is considered to be one single legal institution but, in fact, it meets in ten different configurations depending on the topic discussed. In the Decision 2009/87815 of the Council, the ten configurations are listed: 1. General Affairs 2. Foreign Affairs 3. Economic and Financial Affairs 4. Justice and Home Affairs 5. Employment, Social Policy, Health and Consumer Affairs 6. Competitiveness 7. Transport, Telecommunications and Energy 8. Agriculture and Fisheries 9. Environment and 10. Education, Youth, Culture and Sport. Although all configurations are equal, the General Affairs Council and the Foreign Affairs Council have different competences than the others16. For instance, the General Affairs Council is responsible for the assurance of the consistency in the work of all the configurations, the preparations of European Council’s meetings and for some policy areas such as – but not limited to – the EU enlargement and accession negotiations17, whereas the Foreign Affairs Council deals with the EU’s external actions i.e. foreign policy and defence and security.18

Regarding the chairing of the Council, the Minister of the Member State that holds the Presidency in the Council chairs all the configurations’ meetings, with the exception of the Foreign Affairs one, which is always chaired by the High Representative for Foreign Affairs and Security Policy19. The Presidency rotates every six months and its agenda is organized within

11 ibid 12 European Commission. (2019). How is the EU budget prepared? [online] Available at: https://ec.europa.eu/info/about-european-commission/eu-budget/how-it-works/annual-lifecycle/preparation_en [Accessed 13 Mar. 2019] 13 EUR-Lex.europa.eu. (2019) Treaty of Lisbon. [online] Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12012M/TXT&from=EN [Accessed 13 Mar. 2019]. 14 ibid 15 EUR-Lex.europa.eu. (2019). Decision 2009/878. [online] Available at: https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2009D0878:20100916:EN:PDF [Accessed 13 Mar. 2019] 16 Consilium.europa.eu. (2019) Council Configurations. [online] Available at: https://www.consilium.europa.eu/en/council-eu/configurations/ [Accessed 13 Mar. 2019] 17 Consilium.europa.eu. (2019). General Affairs Council configuration. [online] Available at: https://www.consilium.europa.eu/en/council-eu/configurations/gac/ [Accessed 13 Mar. 2019] 18 Consilium.europa.eu. (2019). Foreign Affairs Council configuration [online] Available at: https://www.consilium.europa.eu/en/council-eu/configurations/fac/ [Accessed 13 Mar. 2019] 19 Moussis, N. (2011). Access to the European Union: Law, Economics and Policies. [online] Available at: http://www.europedia.moussis.eu/books/Book_2/2/4/1/4/?lang=en&all=1&s=1&e=10 [Accessed 19 Feb. 2019].


8

18 months, the so-called “trio-programme” which was introduced in the Lisbon Treaty (2009).20 At the moment, Romania holds the presidency of the Council and is followed by Finland and Croatia21. The Romanian presidency’s programme focuses on four pillars: “Europe of convergence”, “a safer Europe”, “Europe as a strong Global Actor” and “Europe of common values”.22 The Council’s Presidency is responsible for promoting the Council’s work on EU legislation, ensuring the continuity of the EU agenda, the legislative procedures and the cooperation among Member-States23. Furthermore, the presiding Member-State has two tasks that must be fulfilled: the planning and chairing meetings in the Council and its preparatory bodies as well as its representation in the other European institutions24.

The Ordinary Legislative Procedure The Ordinary Legislative Procedure (Article 294 TFEU25), which was formerly known as “Co-Decision” before the Lisbon Treaty came into effect, is the general process for adopting legislations within the European Union26. The main characteristic of this procedure is the fact

that both the Council and the European Parliament decide upon the legislative procedure and can amend any proposal made.27 This procedure is comprised of up to three readings and both sides have to agree on a common legislation act.28

20 Consilium.europa.eu (2019). Council of EU – The Presidency of the Council of EU. [online] Available at: https://www.consilium.europa.eu/en/council-eu/presidency-council-eu/ [Accessed 27 Mar. 2019]. 21 ibid 22 Romania2019.eu. (2019). Priorities. [online] Available at: https://www.romania2019.eu/priorities/ [Accessed 13 Mar. 2019) 23 Consilium.europa.eu (2019). Council of EU – The Presidency of the Council of EU. [online] Available at: https://www.consilium.europa.eu/en/council-eu/presidency-council-eu/ [Accessed 13 Mar. 2019]. 24 ibid 25 EUR-Lex.europa.eu. (2019). Consolidated version of the Treaty on the Functioning of the European Union - PART SIX: INSTITUTIONAL AND FINANCIAL PROVISIONS - TITLE I: INSTITUTIONAL PROVISIONS - Chapter 2: Legal acts of the Union, adoption procedures and other provisions - Section 2: Procedures for the adoption of acts and other provisions - Article 294 (ex. Article 251 TEC). [online] Available at: https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12008E294:en:HTML [Accessed 27 Mar. 2019] 26 EU Monitor. (2019). Ordinary Legislative Procedure (COD). [online] Available at: https://www.eumonitor.eu/9353000/1/j9vvik7m1c3gyxp/vga3bya9max9 [Accessed 13 Mar. 2019]. 27 ibid 28 European Parliament. (2019). Ordinary Legislative Procedure. [online] Available at: http://www.europarl.europa.eu/ordinary-legislative-procedure/en/home.html [Accessed 13 Mar. 2019].

Figure 1 European Parliament. (2019).The EU Institutions – The Institutional Triangle. [online] Available at: http://www.europarl.europa.eu/unitedstates/media/static/images/the-european-triangle.png


9

The Ordinary Legislative Procedure begins with the submission of a legislative proposal by the European Commission, which is the only institution that exclusively has this jurisdiction29, to the Council and the European Parliament30. Then, the first reading begins with the Parliament examining the Commission’s proposal; it either adopts it proposes amendments to it and eventually submits its work to the Council31. The latter may adopt the Parliament’s position, and hence the legislative act is adopted, or may amend it and the phase of second reading begins.32 In the second reading, the European Parliament receives the amended text and has three choices: 1. Approve it, which results in the adoption of the act; 2. Reject it and the whole procedure will fail as the act will not come into force; or 3. Propose further amendments and send the proposal back to the Council for a second reading33. After the receipt of the amended text, the Council proceeds with the reading and if it approves the updated text, the act is adopted. If it rejects it, the Conciliation Committee is assembled34. The main objective of this Committee – which consists of equal members of both institutions – is to find a common ground and agree on one text – the joint text - that will be accepted by both the Council and the European Parliament35. In the third and final reading of the Ordinary Legislative Procedure, both the institutions read the joint text and if they approve it, the legislative act will be adopted but if they reject it, the proposal will not be accepted and the procedure ends36. The joint text, after the approval of both parties, will be published as a Regulation, Directive or Decision of the European Parliament and the Council.37

During any stage of this legislative procedure in order for it to be facilitated and conclude in a joint text, there can be “trilogues”, which are informal conversations amongst representatives of the Council, the European Parliament and the European Commission.38 These meetings are

29 Europa.eu. (2019). European Commission. [online] Available at: https://europa.eu/european-union/about-eu/institutions-bodies/european-commission_en [Accessed 13 Mar. 2019] 30 Consilium.europa.eu. (2019). Step 1: Legislative Proposal. [online] Available at: https://www.consilium.europa.eu/en/council-eu/decision-making/ordinary-legislative-procedure/legislative-proposal/ [Accessed 13 Mar. 2019] 31 Consilium.europa.eu (2019). Step 2: First Reading. [online]. Available at: https://www.consilium.europa.eu/en/council-eu/decision-making/ordinary-legislative-procedure/first-reading/ [Accessed 13 Mar. 2019] 32 Ibid. 33 Consilium.europa.eu. (2019). Step 3: Second Reading. [online] Available at: https://www.consilium.europa.eu/en/council-eu/decision-making/ordinary-legislative-procedure/second-reading/ [Accessed 13 Mar. 2019]. 34 ibid 35 Consilium.europa.eu. (2019). Step 4: Conciliation. [online] Available at: https://www.consilium.europa.eu/en/council-eu/decision-making/ordinary-legislative-procedure/conciliation/ [Accessed 13 Mar. 2019]. 36 Consilium.europa.eu (2019). Step 5: Third Reading. [online] Available at: https://www.consilium.europa.eu/en/council-eu/decision-making/ordinary-legislative-procedure/third-reading/ [Accessed 13 Mar. 2019]. 37 ibid 38 European Parliament. (2019). Interinstitutional negotiations for the adoption of EU legislation. [online] Available at: http://www.europarl.europa.eu/ordinary-legislative-procedure/en/interinstitutional-negotiations.html [Accessed 30 Mar. 2019].


10

chaired by the co-legislator who hosts them each time, more specifically by the European Parliament or the Council, whilst the Commission appears as a mediator.39 The co-legislators present their positions and develop a debate on them and result in the “first reading” and “second reading” agreements or the joint text in the “conciliation” stage40.

On the side of the Parliament, the negotiating team consists of the Chair or a Vice-Chair of the respective committee41, the rapporteur whose main duty is to “prepare the committee’s report and to present it to the Parliament on behalf of that committee” (Rule 52a§1 in the Rules of Procedure of the European Parliament)42 and one or more shadow rapporteurs from each political party who is responsible to “follow the progress of the relevant report and find compromises within the committee on behalf of the group” (Rule 205a in the Rules of Procedure of the European Parliament)43. On the other side, concerning the Council, there are representatives of its Presidency and as long as the Commission is considered it is equally present.44 All three groups representing the institutions are trying to find a common ground among each institution’s framework and rules of procedure.45 It has to be

39 Ibid. 40 Ibid. 41 Ibid. 42 European Parliament. (2019). Rules of Procedure of the European Parliament. [online] Available at: http://www.europarl.europa.eu/sides/getLastRules.do?language=EN&reference=RULE-052-1 [Accessed 30 Mar. 2019]. 43 European Parliament. (2019). Rules of Procedure of the European Parliament. [online] Available at: http://www.europarl.europa.eu/sides/getLastRules.do?language=EN&reference=RULE-205-1 [Accessed 30 Mar. 2019]. 44 European Parliament. (2019). Interinstitutional negotiations for the adoption of EU legislation. [online] Available at: http://www.europarl.europa.eu/ordinary-legislative-procedure/en/interinstitutional-negotiations.html 45 Ibid.

Figure 2 European Parliament. (2019). The Ordinary Legislative Procedure. [online] Available at: http://www.europarl.europa.eu/ordinary-legislative-procedure/en/ordinary-legislative-procedure.html


11

pointed out though, that, any agreement that will derive from these meetings is informal and in order to be applicable within both institutions they have to be approved via the formal procedures.46

46 Ibid.


12

Topic A: Developing the European Neighbourhood Policy and the Pre-Accession Assistance

Introduction – the 2003 project The creation of the European Neighbourhood Programme (ENP) comes in the “Golden Age” of European Union (EU) expansion. It is seen as the implementation of Article 8 of The Treaty of the European Union, which states that “the Union shall develop a special relationship with neighbouring countries, aiming to establish an area of prosperity and good neighbourliness, founded on the values of the Union and characterized by close and peaceful relations based on cooperation”.47 The policy was first introduced and discussed in 2003, after the announcement of the 2004 expansion wave, where 10, primarily eastern European countries would be given membership to the EU.48 In this framework, it began clear that the gap between the Member States and the surrounding nations needed to be made smaller.49 The integration of these 10 new Member States proved to be extremely ambitious, sometimes causing serious shocks to the European Member States due to this difference. The vision in the 2003 policy implied a ‘ring of nations’ that were brought into higher stages of development, by becoming closer to the EU yet without being Member States. This policy creates the Eastern Partnerships (EaP) and the Union for the Mediteranian (UfM). The EaP consists of Armenia, Azerbaijan, Belarus, Georgia, Moldova and Ukraine.50 This neighbourhood projects are focused on specific missions in Eastern Europe and the Caucasus region. The UfM consists of Algeria, Egypt, Israel, Jordan, Lebanon, Morocco, Palestine, Syria, and Tunisia. This project included Libya until the turmoil caused by the Arab Spring and Qaddafi’s death, and given the current civil war in Syria, ENP projects in the country have been halted, waiting for significant developments in the whole area.51 The aim of these project was to, firstly, establish Free Trade Agreements, in order to create closer economic ties with the EU. For these reasons, the EU created a three-prong approach to fulfil this objective, addressing “Proximity, Prosperity and Poverty”.52 Proximity was tackled through Association agreements and Partnership and Cooperation Agreements. The 2003 policy stated that the closer geographically a country is to the EU, the more important this first P is. The EU aimed at creating better migration policies, customs procedures and frontier controls, allowing easier access or free access of labour and movement across borders and

47 https://eeas.europa.eu/diplomatic-network/european-neighbourhood-policy-enp_en 48 https://eeas.europa.eu/diplomatic-network/european-neighbourhood-policy-enp_en 49 https://eeas.europa.eu/diplomatic-network/european-neighbourhood-policy-enp_en 50 https://eeas.europa.eu/diplomatic-network/european-neighbourhood-policy-enp_en 51 https://eeas.europa.eu/diplomatic-network/european-neighbourhood-policy-enp_en 52 http://eeas.europa.eu/archives/docs/enp/pdf/pdf/com03_104_en.pdf


13

reflecting one of the fundamental freedoms of the EU.53 Secondly, enhancement of infrastructure projects opened for better trading, resulting in more EU investment in these areas within neighbour nations. When dealing with Prosperity and Poverty, the EU would deal with the root causes of political instability, economic vulnerability, institutional deficiencies, conflict, poverty and social exclusion.54 This included aspects like a functioning legal system, the improvement of social inclusion through mutually reinforcing economic, employment and social policies, economic diversification into sustainable energy supplies. Eventually the EU also dedicated itself to the promotion of democracy, pluralism, respect for human rights, civil liberties, the rule of law and core labour standards.55

Recent developments – “More funds for more reform”? The 2003 policy was modified in 2011 with a significant increase in budget from 5.7 billion euros to 7 billion euros. This growth in budget was used in a new approach to the ENP, calling for "more funds for more reform".56 This approach was headed by Catherine Ashton, the then High Representative Foreign Affairs and Security Policy/Commission Vice-President and Štefan Füle, EU Commissioner for Enlargement and Neighbourhood Policy and it aimed for more mutual accountability for both parties of the ENP. If the partner country carried out reforms, more funds would be allocated to those host countries. The following quote by Catherin Ashton sums this up nicely: "What we are launching today is a new approach. A partnership between peoples aimed at promoting and supporting the development of deep democracy and economic prosperity in our neighbourhood. This is in all our interests. We will make funding available for countries in our neighbourhood to support and match the speed of political and economic reform they wish to make. Our support is based on partnership, not on imposition. It is a relationship based on mutual accountability which cuts both ways where each side will hold the other to account against agreed goals and objectives".57 In 2015 the European Commission called for a consultation regarding the ENP, stating that the former approach had been successful in supporting reforms in the fields of good governance, democracy, the rule of law and human rights, where there was a genuine commitment by partners to such reforms.58 However, it has not proven a sufficiently strong incentive to create a commitment to reform where the political will was lacking. In these cases, the EU will explore 53 http://eeas.europa.eu/archives/docs/enp/pdf/pdf/com03_104_en.pdf 54 http://eeas.europa.eu/archives/docs/enp/pdf/pdf/com03_104_en.pdf 55 http://eeas.europa.eu/archives/docs/enp/pdf/pdf/com03_104_en.pdf 56 http://www.europarl.europa.eu/RegData/etudes/IDAN/2015/569048/EPRS_IDA%282015%29569048_EN.pdf 57 http://europa.eu/rapid/press-release_IP-11-643_en.htm 58http://eeas.europa.eu/archives/docs/enp/documents/2015/151118_joint-communication_review-of-the-enp_en.pdf


14

more effective ways to enhance fundamental reforms with partners, including through engagement with civil, economic and social actors. Thus, it was the task of the Commission to look for ways through which the programme could be improved. It ended up promoting a diversification of strategies, going from a single uniform policy for all countries to an individual regional projects. It also aimed to make the ENP more focused on fewer priorities but more related to the political willingness of the actors involved.59 The EU would not, however, budge on the importance of enforcing good governance, democracy, rule of law and human rights, core principles of the Union as enshrined in Art. 2 TEU.60

These reforms are currently made through the European Neighbourhood Instrument (ENI), which has a budget of 15.4 billion euros. It consists of bilateral programmes (direct cooperation between the EU and individual neighbourhood countries), regional programmes (actions that address, respectively, the entire Eastern or Southern neighbourhood) and programmes covering the entire EU Neighbourhood area at once (such as the Neighbourhood Investment Facility (NIF), which supports the creation of water, power, and transport infrastructures, as well as Erasmus+, the renowned exchange programme for students, volunteers, and academic teachers). Furthermore, the project also considers cross-border cooperation between individual EU Member States and neighbouring countries. To make these measures more effective, the ENI can use the Development Cooperation Instrument (DCI) – which supports actions to counter poverty –, the European Instrument for Democracy and Human Rights (EIDHR) – which promotes the enforcement of the rule of law, democratic governance, freedom and fundamental rights – and, lastly, the Instrument contributing to Stability and Peace (IcSP), which is used to respond to critical and emergency situations.61

The reforming process of the Neighbourhood policy, like all other foreign policy topics, is discussed by the Foreign Affairs Council, the European External Action Service (EEAS), the European Commission’s Directorate General of International Cooperation and Development (DEVCO, also known as EuropeAid) and Neighbourhood and Enlargement Negotiations (NEAR), as well as the European Parliament. Council and Commission are bridged by the special role of the High Representative of the Union for Foreign Affairs and Security Policy, who is simultaneously a member of both institutions Vice-President of the European Commission and President of the Foreign Affairs Council (among other roles).62

59http://eeas.europa.eu/archives/docs/enp/documents/2015/151118_joint-communication_review-of-the-enp_en.pdf 60http://eeas.europa.eu/archives/docs/enp/documents/2015/151118_joint-communication_review-of-the-enp_en.pdf 61 https://openmediahub.com/eu-basics/european-neighbourhood-policy/ 62 https://openmediahub.com/eu-basics/european-neighbourhood-policy/


15

Towards a new framework for the ENP However, what should still be reformed within the ENP? A 2017 Joint Report to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions states that, although progress has been made, the results are slower than expected. In particular, governance has improved but at a slow pace, calling the elections in Egypt and Jordan a success. It does state however that “Deficiencies in rule of law, corruption, and weak and unaccountable administrative capacity persist in many neighbouring countries, hampering economic and political developments both in the East and the South.”.63

This report also proposes some priorities for future conduct regarding the ENP. The first focus is on economic development as an actor for stabilization: it is the view of the EU that if an economy is strong, the other institutions will follow. This is mainly due to the shock that economic downturn can have on the political spheres in less stable nations.64 Secondly, the ENP should focus on modernizing the economy together with a boost to entrepreneurship. The Joint Report suggests that this can be done through projects like Enterprise Europe Network, Horizon 2020 and COSME EU and by promoting the concept of ‘smart specialisation’ as developed in the EU’s regional policy for the design of research and innovation strategies.65 This strategy leads to the next core stabilizing elements proposed by the Report, a focus on youth employment and employability.66 The focus on youth employment would be accomplished through the establishment of youth employment panels as well as policies towards matching skills and labour market needs, improving academia-industry collaboration and development of students` employability skills for knowledge-based and sustainable jobs. Incentive schemes for people who have studied or acquired skills in the EU will also be promoted, with the objective of easing a return to their home country.67 Eventually, the report also focuses on climate action and energy security.

It is also imperative to understand that the ENP is not merely an economic partnership. The programme, which has been updated and reviewed last in March 2019, also tackles security

63https://cdn3-eeas.fpfis.tech.ec.europa.eu/cdn/farfuture/rc5uH45vfEAs93ppn1u8JfKHHCICKxQz1mYvs5jMbrU/mtime:1495101217/sites/eeas/files/2_en_act_part1_v9_3.pdf 64https://web.archive.org/web/20160410225004/http://ec.europa.eu/enlargement/neighbourhood/pdf/key-documents/151118_joint-communication_review-of-the-enp_en.pdf 65https://web.archive.org/web/20160410225004/http://ec.europa.eu/enlargement/neighbourhood/pdf/key-documents/151118_joint-communication_review-of-the-enp_en.pdf 66https://web.archive.org/web/20160410225004/http://ec.europa.eu/enlargement/neighbourhood/pdf/key-documents/151118_joint-communication_review-of-the-enp_en.pdf 67https://web.archive.org/web/20160410225004/http://ec.europa.eu/enlargement/neighbourhood/pdf/key-documents/151118_joint-communication_review-of-the-enp_en.pdf


16

and migration issues. The Security Dimension considers, for example, Digital Warfare Defence, Chemical, Biological, Radiological, and Nuclear Risk Mitigation, Common Security and Defence Policy and Crisis management and response. The Migration Dimension has wholly different implication than Security, although the two are developed among similar lines. This entails negotiations with third countries such as Turkey, the Balkan states, Middle Eastern countries, nations in the Sahel region and the Horn of Africa. The EU has changed its policy since the start of the ENP, focusing on a different approach for each country. One of the topics dealt with, in this regard, are visa and mobility issues with “those that are willing to engage with the EU”, including visa liberalisation and facilitation dialogues with partners

Another core aspect of the ENP is that it also seeks to improve the relations of states within these ENP areas, through developing the sense of regionalism. The EU has been an active proponent of international fora and the strategy calls for the increased dialogue with the League of Arab States, cooperation with the Organisation of Islamic Cooperation (OIC), the Gulf Cooperation Council (GCC), the African Union, the Arab Maghreb Union and the work within the framework of the Western Mediterranean Forum (5+5 Dialogue). The cooperation is aiming at being an incentive for stability regarding inter-state conflict in unstable regions.68

The ENP and its contemporary challenges Under the wider umbrella of relationship between the European Union and third countries, it is possible to find two major groups of projects, respectively those towards all the countries involved in the EU Accession Programme and, secondly, those referred to countries with which the EU has established a relationship but with different aims, such as humanitarian goals and stabilization missions. The ENP69 governs the second group.

Introduction: the EU Enlargement process in a nutshell With a first quick glimpse at the EU Enlargement70, it is noticeable that two procedures are present in this process. One is the regular process, where the countries submit the formal application to the Council of the European Union (CoEU). After receiving the request from the CoEU, the European Commission will deliver a summarized and preliminary assessment of whether the candidate fulfils the criteria set out by the EU under the name of the Copenhagen

68https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/neighbourhood/pdf/key-documents/151118_joint-communication_review-of-the-enp_en.pdf 69 European Neighbourhood Policy, [online] Available at: https://ec.europa.eu/europeaid/node/321[Accessed Feb 24 2019] 70 EU Enlargement in steps, [online] Available at: https://ec.europa.eu/neighbourhood-enlargement/policy/steps-towards-joining_en [Accessed April 4 2019]


17

Criteria71. It is important to stress out that this report is a broad overview and not a detailed document. When the CoEU accepts the country as a Candidate, in-depth investigation by the Commission is carried out. The next step in a regular procedure is the fulfilment of the Acquis72, namely the body of common rights and obligations that are binding on all the EU Member States. These are: the content, principles and political objectives of the Treaties; legislation adopted pursuant to the Treaties and the case law of the Court of Justice; declarations and resolutions adopted by the Union; instruments under the Common Foreign and Security Policy; international agreements concluded by the Union and those entered into by the Member States among themselves within the sphere of the Union's activities. It contains 35 chapters, divided by topics (e.g. Chapter 24: Justice, Freedom and Security). The Acquis has to be implemented into the national legislation accordingly to the national law of the country before the accession negotiation begins.

Contemporary Challenges I: the Balkans and Turkey The Balkans, also known as Western Balkan 6 (WB6),73 are on the Southern border of the EU between Hungary and Greece. These countries are Albania, Bosnia and Herzegovina, Macedonia, Montenegro, Kosovo and Serbia74 and aren't part of the ENP anymore, as they are commonly included in the SAA (Stabilisation and Association Agreement).75 This agreement is a framework which, in turn, helps the implementation of the SAP (Stabilisation and Association Process).76 The SAP was launched in 1999. The goal of this Process was to stabilise the Balkans after the dissolution of Yugoslavia and the conflicts occurred in the 1990s, which involved and affected almost all Balkan countries. The decade-long conflicts devastated the countries’ economy and political structure and resulted in an enormous number of civilian casualties which number is yet uncertain on either side. The goal of the European Union was and still is to preserve peace in the region and to include these countries into the European Internal Market, along with their possible future accession to the EU.

71 The Enlargement of the Union (Copenhagen Criteria), [online] Available at: http://www.europarl.europa.eu/ftu/pdf/en/FTU_5.5.1.pdf [Accessed April 4 2019] 72 Chapters of the acquis, [online] Available at: https://ec.europa.eu/neighbourhood-enlargement/policy/conditions-membership/chapters-of-the-acquis_en [Accessed April 4 2019]

73 Western Balkan 6 (WB6), [online] Available at: https://ec.europa.eu/transport/themes/international/enlargement/westernbalkans_en [Accessed April 4 2019] 74 Serbia’s SAA, [online] Available at: https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/pdf/serbia/key_document/saa_en.pdf [Accessed April 4 2019] 75 Stabilisation and Association Agreement, [online] Available at: https://ec.europa.eu/neighbourhood-enlargement/policy/glossary/terms/saa_en [Accessed April 4 2019] 76 Stabilisation and Association Process, [online] Available at: https://ec.europa.eu/neighbourhood-enlargement/policy/glossary/terms/sap_en [Accessed April 4 2019]


18

Besides the contractual obligation and the autonomous trade measures, the SAP lays on two additional aspects. The first one foresees financial support. Financial aids are managed through the Pre-accession Assistance instrument77 (IPA). The total found for the period of 2007-2019 was 11.5 billion EUR. The second and most delicate aspect aims at fostering regional cooperation. Due to a war between the former states of Yugoslavia, the cooperation was hard to establish for either side. This cooperation supposes to include in itself the accountability for the military activities, refugee solutions etc. Some of the relationships are already existing, yet it remains a delicate situation not only for the countries involved, but also for the international community as a whole. At the current state of play, Albania, Northern Macedonia, Montenegro and Serbia are Candidate countries for the accession of the EU, while Serbia and Montenegro entered the accession negotiations. Bosnia and Herzegovina and Kosovo are potential Candidates, although Kosovo has not been recognized by all Member States.78 Besides the Balkans, Turkey is also a Member State Candidate79. The first chapter of the negotiations was opened in 2006. According to the latest summit between the Turkish President and the President of the European Council, Donald Tusk, in March 2018, only one negotiation chapter has been closed (on Science and Research).

Contemporary Challenges II: Syria and the Middle East In the context of ENP programme with regards to the Middle East countries, it is necessary to point out the current relationship between the EU and Syria80. Under the European Neighbourhood and Partnership Instrument (ENPI)81 Syria was involved in bilateral cooperation with the EU. The end date for that cooperation was 2013 but it was suspended in 2011 by restrictive measures82 due to rising human rights violations. Nevertheless, Syria still received EUR 10.8 billion in humanitarian Stabilisation Funds and Resilience Assistance, both for Syria and the countries affected in the region83 (Lebanon, Jordan, Iraq and Turkey). Only €1.05 billion is dedicated to assistance with Syria, humanitarian (66.8%) as well as non-humanitarian

77 European Commission - Enlargement - IPA, [online] Available at: https://ec.europa.eu/neighbourhood-enlargement/policy/glossary/terms/ipa_en, [Accessed April 4 2019] 78 The Western Balkans (Current stage), [online] Available at: http://www.europarl.europa.eu/factsheets/en/sheet/168/the-western-balkans [Accessed April 4 2019] 79 Turkey-EU Candidate, [online] Available at: http://www.europarl.europa.eu/factsheets/en/sheet/168/the-western-balkans [Accessed April 4 2019] 80 EU and Syria, [online] Available at: https://ec.europa.eu/neighbourhood-enlargement/neighbourhood/countries/syria_en [Accessed Feb 24 2019] 81 European Neighbourhood and Partnership Instrument (ENPI), [online] Available at: https://ec.europa.eu/europeaid/tags/european-neighbourhood-and-partnership-instrument-enpi-0_en [Accessed Feb 24 2019] 82Rectrictive measures-Syria, [online] Available at: http://eeas.europa.eu/archives/docs/cfsp/sanctions/docs/measures_en.pdf [Accessed Feb 24 2019] 83 EU response to the Syrian crisis, [online] Available at: https://eeas.europa.eu/headquarters/headquarters-homepage_en/22664/The%20EU%20and%20the%20crisis%20in%20Syria [Accessed April 4 2019]


19

(33.2%). As the example shows, the effects of prolonged conflict is capable of affecting the entire neighbouring region, which requires additional assistance and allocation of funds from the side of the EU. The situation in the region, therefore, called for the EU Regional Strategy for Syria, Iraq and the Da'esh threat84. The Foreign Affairs Council85 assesses and revises it on an annual basis. On the other hand, the situation in Israel and Palestine is also worth mentioning since they are included among the EU’s Southern partners86. Since Palestine is not recognized by all the Member States of the EU87, it creates a political issue, as a direct partnership could possibly lead to a de facto recognition. Under these circumstances, therefore, the possibilities of aids and cooperation are restricted88. Until now, Cyprus (1988), the Czech Republic (1988), Slovakia (1988), Hungary (1988), Romania (1988), Poland (1988), Sweden (2014)89 recognized Palestine as independent country. Since the nature of the Neighbourhood Policy allows the funds to be allocated as the Commission, the Council and the European Parliament deem necessary, Palestine’s complex appearance on the list of South Partners seems to be more understandable. This way the EU is able to support and send humanitarian aid without being engaged in prolonged and complex political negotiations. Eventually, it is important to highlight that sudden changes in trade relation with long-standing partners90 such as the USA can affect the ENP regions. For example, the 70th celebration of the formation of Israel led to the relocation of the USA Embassy from Tel Aviv to Jerusalem. This controversial move shocked the international society due to the extremely sensitive nature of the situation. The shockwaves of this political decision also affected the ENP for that region as the EU wishes to foster a peace agreement between the two nations which deemed to be impossible during military activities.

84EU regional strategy for Syria, Iraq and the Da'esh threat, [online] Available at: http://data.consilium.europa.eu/doc/document/ST-9105-2016-INIT/en/pdf [Accessed Feb 24 2019] 85Foreign Affairs Council [online] Available at: https://www.consilium.europa.eu/en/council-eu/configurations/fac/ Accessed April 4 2019] 86 EU Neighbours south-Palestina, [online] Available at: https://www.euneighbours.eu/en/south/stay-informed/palestine- [Accessed Feb 24 2019] 87Palestinian recognition, online] Available at: https://en.wikipedia.org/wiki/International_recognition_of_the_State_of_Palestine [Accessed April 4 2019] 88 EU Neighbours South and East Region, [online] Available at: https://www.euneighbours.eu/en [Accessed Feb 24 2019] 89 International recognition of the State of Palestine, [online] Available at: https://en.wikipedia.org/wiki/International_recognition_of_the_State_of_Palestine [Accessed Feb 24 2019] 90 US and the EU, [online] Available at: http://ec.europa.eu/trade/policy/countries-and-regions/countries/united-states/ [Accessed Feb 24 2019]


20

Contemporary Challenges III: a European Geopolitical activism?

Lastly, it is interesting to examine the geopolitical91 aspect of these programmes. In recent times, the EU went from a standard denial of geopolitical interest to the development of a sort of “hybrid politics”92, especially on the Eastern regions. As a matter of fat, this interest has escalated after the Ukrainian Crisis in 201493. Due to Ukraine’s closeness to EU borders,94 the importance in the ENP was questionable before the Crisis, as The EU's goal was to directly support Ukraine’s accession to the EU, together with the widening of the common market as well as a closer strategic location to Russia for both political and economic reasons. In this case, the geopolitical interests are visible and even understandable from economic and political aspects.

Conclusions As the above-mentioned paragraphs have tried to outline, the European Neighbourhood Policy is undoubtedly one of the major projects of the European Union. Taking into account all the necessary information and current developments, it is your task, Delegates of the European Parliament and the Council of the European Union, to challenge yourself and try to find a common vision for the development and improvement of the European strategy towards third countries. The future of the EU relationship with its close neighbours is on your hands!

91 Geopolitics definition by Cambridge Dictionary, [online] Available at: https://dictionary.cambridge.org/dictionary/english/geopolitics [Accessed 24 Feb 2019] 92 The Rise of Geopolitics in the EU’s Approach in its Eastern Neighbourhood, [online] Available at: https://www.tandfonline.com/doi/full/10.1080/14650045.2018.1477754?scroll=top&needAccess=true [Accessed 24 Feb 2019] 93 Ukrainian crisis, [online] Available at: https://en.wikipedia.org/wiki/Ukrainian_crisis [Accessed 24 Feb 2019] 94ENP Ukraine, [online] Available at: https://ec.europa.eu/neighbourhood-enlargement/neighbourhood/countries/ukraine_en [Accessed 04 April 2019]


21

Topic B: the Schengen Information System Regulation

Part I – Current state of the Schengen Information System

The Schengen area is one of the most well-known and directly visible developments of the European integration. In 1985, 7 (back then) Member States agreed to abolish all forms of border checks between them: now, Schengen has been incorporated as part of EU law. Thanks to it, intra-Schengen travellers do not have to stand in long immigration lines at airports, stop their cars at border crossings, or in fact even notice they are crossing a border. But Schengen also means a tight surveillance of the zone’s external border, common rules regarding its crossing, harmonisation of the conditions of entry and of the rules on visas, and enhanced police cooperation. To make it all possible, the Schengen Information System (SIS) was created as the crucial tool to tackle these issues. SIS is the database and information sharing system used by the Schengen States, Schengen Associated Countries (Switzerland, Norway, Liechtenstein and Iceland) and Bulgaria, Romania and Croatia, in order to control the flow of people and objects around the Area. The database is made of entries – warnings for law enforcement, called alerts, pertaining to specific persons or objects, such as identity documents, vehicles, airplanes, boats and firearms.95

SIS exists for four main purposes:

• Border control cooperation, which includes information necessary to process the requests of third-country nationals wishing to enter the Schengen area and for verifying the validity of visas. This means alerts on persons not entitled to enter the Schengen Area and a list of visas.

• Law enforcement, including alerts related to police cooperation, mostly in cases of missing persons or persons that might require specific checks or discreet observation.

• Judicial cooperation, which involves alerts on persons wanted for arrest, persons and objects sought to assist with judicial proceedings.

• Cooperation on vehicle registration.

A specific category that might fall into all four are alerts for persons and objects that might cause a threat to public security. Alerts are entered by Member State’s border guards or police forces; national databases are connected to SIS in real time.96

95 European Commission (2019, February 25). Schengen Information System. Retrieved from https://ec.europa.eu/home-affairs/what-we-do/policies/borders-and-visas/schengen-information-system_en 96 Ibid


22

The SIS database can be accessed by national authorities responsible for border control, policing, custom checks and issuing visas, and by prosecutors and judges when this is needed in the context of an ongoing investigation or prosecution.

An SIS alert always consists of three parts:

• A set of data for identifying the person or object, subject of the alert. A minimum for a person is the name and year of birth, photographs and fingerprints should be added whenever possible;

• A statement why the person or object is sought; • An instruction on the action to be taken when the person or object has been found.97

Since 2018, border guards and police forces can use an Automated Fingerprint Identification System to identify persons solely on the basis on fingerprints.98

SIS currently contains around 80 million alerts, and was consulted 5 billion times in 2017, giving an average of 450 “hits” per day and resulting in almost 40,000 people being arrested over offences committed in another Member State, almost 150,000 people being refused entry or stay in the Schengen area (having already been subject of a decision on refusal of entry or stay), and over 28,000 missing persons being found having crossed a border into another Member State.99

Each Member States with access to SIS also has a SIRENE bureau. SIRENE stands for Supplementary Information Request at the National Entries and is the entity responsible for providing supplementary information on alerts, informing about hits – matches between alerts and controlled people/objects, validating and coordinating the alerts mechanism – between Member States. A SIRENE manual details all rules governing the everyday functioning of the SIS.100

97 Regulation (EC) No 1987/2006 on the establishment, operation and use of the second generation Schengen Information System (SIS II), Art. 23 98 op cit 1 99 European Commission (2016, December 21). Report from the Commission to the European Parliament and the Council on the evaluation of the second generation Schengen Information System (SIS II). Retrieved from https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52016DC0880&from=ES 100 Commission Implementing Decision (EU) 2017/1528 of 31 August 2017 replacing the Annex to Implementing Decision 2013/115/EU on the SIRENE Manual and other implementing measures for the second generation Schengen Information System (SIS II)


23

Part II - SIS in practice: praise and criticism

The Schengen Information System’s positive impact in practice

The SIS has by many been labelled as a success in terms of ensuring security within the European Union. Julian King, Commissioner for the Security Union, has stated that:

“From preventing terror attacks to missing children, the SIS is the centrepiece of information exchange in the EU, with more than 200,000 criminals tracked down and 50,000 arrests made underlining its importance to cross-border security cooperation.”101

The practical success of the system can best be exemplified by the statistics included in the European Commission’s report102 on the evaluation of the SIS from 2016. They stated that in 2015 alone, there were 2.9 billion checks on persons and objects against data held in SIS II. Furthermore, at the moment of writing of the report, 69 million alerts were contained in the system. Between 2013 and 2015 over 371 000 hits were achieved, with over 370 hits per day on average.

Besides its success as a security system, the SIS is also essential for Schengen’s very existence because it is what makes the removal of border controls possible. Political agreement on the Schengen area would have been extremely difficult to achieve without a security system. Therefore, the ability of people to freely move in the area in order to find jobs, to study, to enjoy the Erasmus programme, and the ability for businesses and companies to transport goods and services easily would not be present were it not for the SIS.

Criticism Not all voices have been in support of the SIS. In fact, a number of concerns have been raised as to the legitimacy of the system. Such concerns include issues of democracy, accountability, data protection, and fundamental rights.

There have been ardent opposers of the whole Schengen system, not just the SIS. Across the whole history of Schengen, sceptics have criticized the system as being “an open door for

101 Schengen Visa Info (2018, November 22). EU Council Adopts Proposal for a Stronger Schengen Information System. Retrieved from https://www.schengenvisainfo.com/news/eu-council-adopts-proposal-for-a-stronger-schengen-information-system/. 102 European Commission (2016, December 21). Report from the Commission to the European Parliament and the Council on the evaluation of the second generation Schengen Information System (SIS II). Retrieved from https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52016DC0880&from=ES.


24

migrants and criminals.”103 The reasoning behind this is evident: if there are no border controls, it is much easier for individuals involved in illegal activities to move across the Schengen area once they have entered one of the Member States. This criticism gained a lot of momentum with the beginning of the refugee crisis in 2015 and border controls were reinstated temporarily in many Member States, for example in Germany between the 14th November 2015 and the 13th May 2016.104 For those who subscribe to this view, the SIS is just part of a dangerous and unnecessary system.

The SIS as a separate entity has also been subject to scepticism. In order to understand the criticism directed at the current proposal and the possible political tensions, it is useful to adopt a historical approach and look at what criticism previous legislation on the SIS has gotten, as most of it also applies to the legislation at hand. It can be particularly fruitful to examine the rough path of the transformation from SIS to SIS II, since it would bring to light many of the problems connected to the system. Before the enhanced SIS II could enter into force in 2013, there was a seven-year delay from the original deadline, filled with political tension and a lot of doubts.105

One problem that became apparent was that of finance: there was a 500% rise in the amount spent on establishing the SIS II system as compared to the Commission’s estimation made in 2001 before it even came into force.106 Monetary matters are very often used by Eurosceptic groups and individuals as arguments to restrict the scope of action of the EU. For example, the fact that Great Britain will not have to contribute to the EU budget is often listed as an advantage of Brexit by its supporters.107 The issue of financing will therefore likely be raised in the context of the planned Schengen reforms.

Another problem dating as far back as the inception of the SIS is that of data protection. In a database containing vast amounts of personal information, this topic inevitably arises. It was hotly debated, in particular, during the transition to SIS II. Currently, there is a body called The Schengen Information System II Supervision Coordination Group (“SIS II SCG”) whose objective is to ensure coordinated supervision in the area of personal data protection in the realm of the SIS system.108 The Group consists of representatives from Member States’ national authorities

103 Laurence, P (2016, April 24). Schengen: Controversial EU free movement deal explained. Retrieved from https://www.bbc.com/news/world-europe-13194723. 104 Member States’ notifications of the temporary reintroduction of border control at internal borders pursuant to Article 25 et seq. of the Schengen Borders Code. Retrieved from https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/borders-and-visas/schengen/reintroduction-border-control/docs/ms_notifications_-_reintroduction_of_border_control_en.pdf. 105 Parkin, J (2011, April). The Difficult Road to the Schengen Information System II: The legacy of ‘laboratories’ and the cost for fundamental rights and the rule of law. Retrieved from http://aei.pitt.edu/31282/1/SIS_II_paper_liberty_security_formatted1[1].pdf. 106 Ibid. 107 See e.g. Brexit: pros and cons of leaving the EU. Retrieved from https://www.theweek.co.uk/brexit-0. 108 European Data Protection Supervisor. Schengen Information System. Retrieved from https://edps.europa.eu/data-protection/european-it-systems/schengen-information-system_en.


25

responsible for data protection and the European Data Protection Supervisor. The SIS II Regulation provides individuals with rights to access and correct data, as well as to delete unlawfully stored information. The Group has adopted guidelines on exercising these rights which can be found here: https://edps.europa.eu/node/3058. Individuals are allowed to bring a claim before courts or responsible authorities in their Member State if their request connected with these rights is not satisfied (Art. 43 SIS II Regulation and Art. 59 SIS Decision). While this does provide a possible remedy, it is one that is very dependent on the system of data protection of Member States because decisions, in the end, are taken by the latter. This leaves almost all procedural aspects in the hands of different authorities across the different countries and can certainly lead to different end results. It becomes evident that even though the SIS contains data protection measures and remedies, issues can still arise, and concerns may not be completely unwarranted.

Fundamental rights concerns have also been widely discussed in the context of the SIS and EU IT systems in general. While the benefits of such systems for improving security and, among others, preventing identity fraud and finding missing children are clear, there are also dangers.109 Concerns may arise, for example, about respect for human dignity when taking fingerprints or unlawful use and sharing of data with third parties. Such problems are often exacerbated when third country nationals are concerned. The General Data Protection Regulation (GDPR) in Art. 5(1) mandates that individuals be informed about the details of their personal data being stored in an easily understandable manner. However, it has been found that authorities struggle with providing information concerning people’s rights in an understandable manner, particularly so when it comes to asylum seekers or migrants in an irregular situation.110

Another issue possibly arising in the context of the SIS is that of uniformity. Some countries are still on the waiting list for entering the Schengen area without internal border checks but are already fully operating the SIS. Bulgaria and Romania fall in this category.111 Croatia has also started operating the SIS while not being a member of the area without border checks. However, certain restrictions still apply to its use of Schengen-wide SIS alerts for the purposes of refusing entry into or stay in the Schengen area. The UK has completely opted out of the Schengen area but operates the SIS, which leads to it not being able to issue or access Schengen-wide alerts for refusing entry and stay into the Schengen area. Ireland and Cyprus are not connected to the SIS. It is therefore evident that within the EU, there are a number of countries that have not yet started using the SIS system, might not intend on ever doing so, or are at different stages of employing it.

109 FRA (2018). Under watchful eyes: biometrics, EU IT systems and fundamental rights. Retrieved from file:///E:/Downloads/fra-2018-biometrics-fundamental-rights-eu_en.pdf. 110 Ibid. 111 European Commission (2019, February 25). Schengen Information System. Retrieved from https://ec.europa.eu/home-affairs/what-we-do/policies/borders-and-visas/schengen-information-system_en.


26

Brexit also poses a question connected to the SIS because the UK currently operates the SIS system. If the UK and the EU manage to agree on a withdrawal agreement, the UK will most likely have a transition period during which it will still be able to operate the EU databases. After that, it will stop being part of the SIS (see Art. 63(1)(e) of the Draft Withdrawal Agreement).112 However, the British Parliament has rejected the current Draft of the Withdrawal Agreement, meaning that the UK may leave the EU without one as the deadline nears. In that scenario, it is uncertain what would happen regarding the country’s use of the EU databases. It is possible that it may need to cease operating them immediately, which would cause a great deal of confusion.

112 European Commission (2018, November 14). Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, as agreed at negotiators' level on 14 November 2018. Retrieved from https://ec.europa.eu/commission/sites/beta-political/files/draft_withdrawal_agreement_0.pdf.

study guide ordinary legislative procedure european parliament … · 2019-04-23 · study guide...

Documents