US embassy cable - 05BRUSSELS2227

UNCLAS SECTION 01 OF 05 BRUSSELS 002227 
 
SIPDIS 
 
SENSITIVE 
 
DEPARTMENT FOR CA; EUR/ERA; PRM/PRP; USDOJ FOR CRIMINAL 
DIVISION - BSWARTZ; EU POSTS ALSO FOR LEGATT 
 
E.O. 12958: N/A 
TAGS: CVIS, SMIG, PREL, CMGT, KFRD, KCRM, PTER, EUN, USEU BRUSSELS 
SUBJECT: SCHENGEN TURNS TWENTY: BIGGER AND BOLDER THAN EVER 
 
REF: (A) BERN 0991 (B) 04 BRUSSELS 4844 
 
1. (SBU) Summary.  The Schengen area has grown from six core 
countries in 1985 to fifteen at present, with eleven more -- 
including most recently Switzerland -- expected to be 
integrated by the end of 2007.  Border-free travel within the 
zone has proved popular with the European public and is one 
of the most visible signs of the European Union (EU). 
Instruments to secure the Schengen area include common 
lookout databases, visas policies and procedures at borders. 
One of the main pillars, the Schengen Information System, is 
the largest border and police lookout database in the world. 
On June 2, the EU amended its visa "solidarity mechanism" 
which is designed to gain reciprocal treatment for EU 
citizens from third countries.  The amended version helps 
diffuse a bilateral confrontation with the U.S., but does not 
eliminate the possibility of mutual visa requirements for 
American and European travelers.  The EU also faces pressure 
from its eastern neighbors with regard to visa requirements 
and has developed "road maps" for Bulgaria and other 
accession candidates to meet the Schengen requirements.  End 
Summary. 
 
------------------------ 
Schengen,s Principles 
------------------------ 
 
2. (U) Switzerland,s decision by plebiscite to join the 
Schengen Agreement -- a week after French voters applied a 
brake to European integration -- shone a spotlight on one of 
the EU,s most appreciated achievements: borderless movement 
of people within Europe.  The decision by the traditionally 
insular Swiss on June 5 (reftel a) coincided with Schengen,s 
twentieth anniversary and paves the way for a continent-wide 
area of free circulation as early as 2007. 
 
3. (U) Schengen,s fundamental principle is that no 
third-country national should gain access to any part of the 
territory (either with or without a visa) if he or she 
constitutes a security threat for any of the members.  The 
agreement assumes that entry into one Schengen state 
constitutes admission for the whole territory.  Therefore, a 
short-stay visa issued by any participating state will be 
recognized for entry to the common territory.  Once legally 
in the Schengen area, a third-country national is entitled to 
move within the whole territory for three months out of every 
six months without further control at internal borders. 
Schengen does not cover longer-term visas, such as student, 
work, refugee, family reunification, official or diplomatic. 
For all practical purposes, however, anyone who enters a 
Schengen country under any of these statuses is in reality 
free to roam throughout continental Europe. 
 
------------------------ 
Schengen,s Expansion 
------------------------ 
 
4. (U) On June 14, 1985, the Schengen Agreement was signed by 
Belgium, France, Germany, Luxembourg and the Netherlands to 
eliminate all internal border checks.  Five years later, a 
convention implementing the agreement established a variety 
of measures to "compensate" for the lack of internal border 
controls.  The benefits were quickly perceived by the public, 
and the Schengen area expanded as follows:  Italy (1990); 
Spain and Portugal (1991); Greece (1992); Austria (1995); 
Denmark, Finland, Sweden, Norway and Iceland (1996).  In 
1997, a protocol was attached to the EU,s Amsterdam Treaty 
which integrated the Schengen Agreement into the legal and 
institutional framework of the EU.  Schengen morphed from 
being an intergovernmental agreement to an instrument of the 
EU, subject to both the EU,s parliamentary oversight and its 
judicial scrutiny. 
 
5. (U) However, as the recent case of Switzerland 
underscores, it is still possible to accede to the Schengen 
space without joining the EU.  Special arrangements related 
to policymaking and funding are negotiated with non-EU 
members.  Although these countries participate in the various 
Schengen working groups, they do not have a vote in the 
decision-making process. 
 
6. (U) The United Kingdom and Ireland were permitted to opt 
out of the agreement,s provisions when it became EU law in 
1997.  However, the Amsterdam Treaty required that all future 
new members of the EU be required to sign up to Schengen as 
part of the legislative acquis.  A two-step integration 
process for new members was established in order to maintain 
effective controls at the EU,s external borders after 
enlargement.  When ten new countries joined in the EU in 2004 
(Cyprus, the Czech Republic, Estonia, Latvia, Lithuania, 
Hungary, Malta, Poland, Slovakia and Slovenia), they were 
required to implement all Schengen provisions related to 
securing the external borders as of the first day of 
membership.  Both in the lead up to accession and in the 
immediate years afterwards, the EU has pumped funds and 
technical know-how to these states to upgrade external border 
controls.  Once the European Commission,s evaluation teams 
certify that all necessary technical requirements are in 
place, the internal borders between these ten countries and 
the rest of the Schengen area will fall and free movement 
will be expanded to these ten countries.  Although 
evaluations will be made on a "case by case" basis, the 
expectation is that all ten (or the contiguous eight, at 
least) will join as a block for practical reasons.  The same 
pattern -- duties followed by benefits -- will be applied to 
future new EU members (i.e., Bulgaria, Romania and perhaps 
Croatia). 
 
7. (U) Bits of European territory not in Schengen (e.g., 
Andorra and Gibraltar) are offset by bits of Schengen 
territory in Africa (e.g., Ceuta and Melilla).  And, while 
some islands remain outside the agreement (Ireland and Great 
Britain), unrestricted movement to others (Iceland, the 
Canaries and Azores) is possible.  The lack of internal 
border controls remains one of the most appreciated benefits 
of European integration.  Even those campaigning in France 
and the Netherlands against the European constitution 
expressed support for Schengen, including the increased 
cooperation on border security and law enforcement that 
accompanied the agreement. 
------------------------ 
Common Databases 
------------------------ 
 
8. (U) In order to compensate for the abolition of internal 
borders, the Schengen Information System (SIS) was created to 
facilitate the sharing of information between administrative, 
police and judicial officials.  It is the largest border and 
police lookout system in the world and contains segmented 
databases that are accessible only by competent authorities 
with a need to know.  These separate SIS databases include 
the following categories of individuals:  foreigners who are 
not permitted to enter the Schengen space (intending 
immigrants and those who pose a security threat); persons 
under police surveillance; missing persons (including 
abducted children); and those wanted for extradition or to 
serve as witnesses in court cases.  The SIS also contains 
lists of stolen/misappropriated or lost vehicles, firearms, 
travel and identity documents and bank notes. 
 
9. (SBU) Of the over 12 million SIS records, the greatest 
number concerns lost/stolen/misappropriated travel and 
identity documents.  Approximately one million SIS records 
relate to aliens (including their aliases) thought to be 
intending immigrants (the so-called Article 96 list).  In 
2003, countries with the largest contributions to the Article 
96 list included Italy (335,306) and Germany (267,884), 
followed by Greece, France and Austria.  At the low-end of 
the scale were Iceland (10) and Denmark (147).  The huge 
discrepancy in numbers underscores the lack of uniformity 
with regard to entering data in the SIS.  Italy and Germany, 
which account for 77% of the Article 96 list in 2003, 
apparently enter all failed asylum seekers and those 
apprehended illegally on their frontiers, while other 
countries do not.  The European Commission is working to 
harmonize and clarify the conditions for entering names into 
the SIS lookout database. 
 
10. (SBU) A structure known as SIRENE (Supplementary 
Information Requests at National Entry point) links the many 
end users of each national system to others through the 
central SIS database located in Strasbourg, France.  When 
"hits" register, SIRENE offices provide more extensive 
information contained in national files.  (Note.  The number 
of end users is staggering.  In the small country of Austria, 
for example, 30,000 officials -- border, police and judicial 
-- are authorized to access the SIS on a need to know basis 
at over 16,000 terminals throughout the country.  End Note.) 
Both the number of end users and the size of the database 
create a perpetual worry over data protection for privacy 
advocates.   The European Commission is also working to 
improve data privacy standards for the SIS. 
 
11. (U) On May 31, the European Commission published a series 
of proposals relating to an upgraded version of the SIS.  The 
immediate need for the improved SIS2 is enlargement of the 
Schengen zone to include the ten new Member States and 
Switzerland.  When functional in 2007, the SIS2 will improve 
the database by increasing the amount of data available to 
end-users when a hit registers (new fields will include first 
names, date of document issuance and date of theft/loss), use 
a character management system to enhance automated 
transliteration of names from characters in other alphabets 
and the inclusion of biometrics to better identify listed 
individuals.  The SIS2 will also link persons with objects, 
add new categories of objects and be used to combat identity 
theft. 
 
12. (U) Another database currently under development is the 
Visa Information System (VIS), which will link the 3500 EU 
consulates and international ports of entry in the Schengen 
area to reduce illegal immigration.  All visa applicants 
processed by the VIS will automatically have their names 
checked against the SIS2.  The VIS is expected to allow a 
biometrics-based search function to help identify illegal 
aliens within the Schengen space (a function that will not be 
allowed in the SIS2). 
 
------------------------ 
Common Policies 
------------------------ 
 
13. (U) With the Amsterdam Treaty, the European Commission 
was granted the authority to establish a list of countries 
whose citizens required visas ("black list") and those exempt 
("white list") from visas for short, temporary stays in the 
Schengen area.  While successful in harmonizing entry 
requirements, the common lists have not achieved the 
political objective of having third countries treat all EU 
citizens equally with regard to visas.  In signing away their 
authority to determine visa entry requirements, Member States 
relinquished their ability to act unilaterally in the visa 
realm.  They cannot impose visa requirements on countries the 
EU has included on the white list. 
 
14. (U) A "solidarity mechanism" was included in 2001 to 
compensate for this loss whereby an "aggrieved" Schengen 
country can ask that an "offending" country be automatically 
added to the black list.  However, the mechanism proved 
ineffective.  Brunei remained on the white list despite visa 
requirements for Austria, Portugal and Greece.  Venezuela 
remained on the same list despite visa requirements for 
Finland and Greece.  The U.S. also kept Greece off its visa 
waiver list.  Aggrieved countries generally did not want to 
exacerbate relations with their external or EU partners. 
Furthermore, they were in such a minority that their EU 
partners could easily override their complaint via a 
"qualified majority vote". 
 
15. (SBU) Enlargement in 2004, however, tipped the scale 
because most new Member States had pre-existing visa 
requirements.  The existence of the EU,s visa white list 
made the new Member States drop visa requirements for 
countries like Canada, Brazil and Brunei -- even though these 
countries did not reciprocate.  Only New Zealand complied 
with the EU,s political objective by announcing that it 
would treat all EU Member States equally.  The specter of 
visa reciprocity with the U.S. became such a sensitive 
political issue that the European Commission took steps to 
take the teeth (i.e., the automatic visa requirement) out of 
the solidarity mechanism. 
 
16. (SBU) In February 2005, the EU reached a political 
decision to eliminate the automatic visa requirement, despite 
objections by Poland, the Czech Republic and Lithuania.  On 
June 2, the EU adopted Council Regulation 851/2005, which 
merely requires Member States to report lack of visa 
reciprocity to the European Commission.  This new regulation 
will enter into force on June 24.  The regulation requires 
the European Commission to enter into negotiations with 
offending third countries and to submit periodic reports to 
the Council and Parliament.  Although the automatic visa 
requirement no longer exists, the European Commission or the 
Council (by qualified majority vote) may decide to move an 
offending country from the white to the black list.  The 
regulation also requires the European Commission to submit 
reports every other year, beginning in 2006, on situations of 
chronic non-compliance "and shall, if necessary, submit 
appropriate proposals."   These proposals, which are not 
legally binding, are understood to include retaliatory 
measures in areas not related to visas. 
 
17. (SBU) On May 26, 2005, the Czech government invoked the 
visa solidarity mechanism against Canada, Brazil and Brunei. 
The adoption of Council Regulation 851/2005, however, 
effectively neutralizes the Czech action.  In a meeting with 
Canadian officials, the Czech Ambassador explained that 
invoking the solidarity mechanism was necessary to counter 
political opponents who accuse the government of not sticking 
up for Czech citizens.  It was also meant as a signal to 
"old" Member States that the Czechs will not accept second 
class status.  He volunteered that no action was taken 
against the U.S. because the Administration,s hands were 
tied by legislation.  Canada was targeted since it had just 
informed the Czech government that it had concluded its 
review and decided to retain its visa requirement for Czech 
citizens.  (Note.  According to a Canadian official, 
Canada,s refusal rate for Czechs runs about 9%.  During the 
year after dropping its visa requirement for Czech citizens 
in October 1995, over 1500 asylum applications were filed by 
Czech citizens in Canada, leading to a resumption of the visa 
requirement in 1996.  End Note.)  This "shot across the bow" 
by the Czechs underscores the continuing sensitivity in 
Europe generated by visa policies. 
 
18. (SBU) The EU also faces diplomatic pressure by its 
eastern neighbors to be added to the visa white list. 
Relations with Russia are affected by visa issues, including 
the sensitive situation of its Kaliningrad enclave.  New 
Member States also find it hard to maintain good political, 
social, cultural and trade ties with their eastern neighbors. 
 The EU has developed "road maps" to help accession states 
make a smooth transition to the Schengen acquis.  Frontrunner 
Bulgaria is in the process of adopting measures to: 
-- develop new passports that meet Schengen anti-fraud 
standards; 
-- abolish the practice of issuing visas at the border; 
-- establish criminal sanctions and fines for irregular 
border crossing and forged documents; 
-- align Bulgaria,s visa lists with the EU,s (by demanding 
visas of Georgia, Russia, Ukraine and Tunisia and notifying 
Serbia/Montenegro and Macedonia that visas will be required 
upon Bulgaria,s accession to the EU); 
-- enhance staffing and equipment at borders; 
-- conduct information campaigns about what visa-free travel 
within the Schengen area will mean after enlargement; and, 
-- introduce legislation to sanction Bulgarian citizens who 
break other countries, immigration laws, including 
confiscation of Bulgarian passports for five years (which 
many do not expect to be enacted). 
 
------------------------ 
Common Procedures 
------------------------ 
 
19. (U) Two final tools to help implement the Schengen 
Agreement are the Common Manual on Border Controls (CMB) and 
the Common Consular Instruction on Visas (CCI).  The CMB 
provides guidance to Member States on conditions for entering 
the Schengen area, including external borders and airports, 
and specifies procedures for conducting checks at ports of 
entry.  The CMB outlines the requirement to run incoming and 
outgoing passengers, names against the SIS and to stamp 
their passports.   It also provides special instructions on 
handling minors, refugees and stateless people, diplomats, 
cross-border workers, seamen, pilots, etc. 
 
20. (U) The CCI standardizes the criteria by which aliens are 
granted Schengen visas.  Similar to the INA,s Section 
214(b), the CCI states that "the alien must be able to prove 
that s/he has sufficient means or is in a position to acquire 
such means lawfully to support her/himself for the intended 
stay or transit and for her/him to return to the country of 
origin; further, the alien has to produce documents 
justifying the purpose of the intended stay or transit."  The 
European Commission has the authority to initiate 
infringement proceedings against Member States that violate 
the provisions of the CCI.  The scandal involving German visa 
practices in Ukraine, which forced Foreign Minister Fischer 
to testify before the German Parliament this year, is based 
on alleged violations of the CCI.   At a hearing before the 
European Parliament on May 10, Commissioner Franco Frattini 
stated, "The Commission,s first assessment of the situation 
is that this (German visa) circular of 2000 was not really in 
full compliance with the CCI."  Since the German Foreign 
Ministry revoked the circular in 2004 and the prolific 
issuance of Schengen visas ceased, the European Commission 
probably will not take punitive action against Germany. 
Nonetheless, prominent Members of the European Parliament 
have called for strengthening the European Commission,s 
ability to oversee and enforce the CCI (including Member 
States, procedures to protect sensitive data). 
 
21. (U) The CCI also provides guidance on common visa 
procedures such as stipulating the standard application 
forms, types of supporting documents, fees, etc.  It also 
provides for a common Schengen visa foil format and security 
features.  (Note.  Member States are required to produce and 
pay for their own supplies.  End Note.)  Member States may 
use the same Schengen foils to issue visas that are limited 
to their national territory (by means of a notation).  This 
is done for longer-term visas that fall outside Schengen,s 
mandate.  Member States also may issue territorially limited 
visas to aliens who are listed as ineligible in the SIS for 
Schengen-wide travel (reftel b). 
 
------------------------ 
Police and Judicial Cooperation 
------------------------ 
 
22. (SBU) While a boon to legitimate travelers, the lack of 
internal controls has also facilitated the international 
travel of terrorists, traffickers and other persons of 
concern.  To compensate for this, the Schengen package 
provides for enhanced police and judicial cooperation.  As 
noted above, the SIS and SIRENE systems facilitate the 
dissemination and exchange of critical information.  The SIS2 
will enhance this exchange by allowing EUROPOL and EUROJUST 
to access the lookout data.  It will also serve as the 
repository of the EU arrest warrants and extradition 
information.  The UK is lobbying the European Commission to 
allow it to participate in Schengen's police and judicial 
cooperation mechanisms (including access to those parts of 
the SIS) without dropping its immigration controls on 
travelers from the continent.  While UK participation and 
expertise is desired at a technical level to enhance law 
enforcement, there are those in the EU who resent the UK's 
existing Schengen "opt out" and the UK's general "pick and 
choose" approach to EU instruments. 
 
------------------------ 
Comment 
------------------------ 
 
23. (SBU) Satisfaction with the Schengen Agreement is 
widespread in Europe, as evidenced by the Swiss plebiscite. 
Schengen may also serve as a platform for common EU consular 
offices abroad, particularly with the development of the VIS. 
 The SIS increasingly facilitates cooperation between border, 
police and judicial officials with their European 
counterparts.  While the SIS database would be a prime 
instrument in extending this cooperation across the Atlantic, 
the obstacles to sharing information remain political and 
legal.  Although the SIS2 would allow for technical 
interoperability with U.S. counterparts, exchanging pertinent 
data will not become possible unless the U.S. is able to 
address EU concerns such as data privacy and data protection, 
as well as reciprocity issues. 
 
McKinley 
.