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Summary

The Schengen area, which originated in the mid-1980s as part of intergovernmental cooperation between five European Union countries, has emerged as an area composed of twenty-six European countries, with no internal borders and a common external border.  Current members include all EU Members with the exception of the United Kingdom and Ireland and four non-EU Members.  Participating states are required to implement the Schengen rules and any new member of the EU must fully comply with Schengen rules to join the Union.

Since 1999, the Schengen acquis (body of law) has been incorporated into the legal framework of the European Union.  Core provisions of the Schengen Borders Code, established by Regulation No. 562/2006, are the lifting of the internal borders between Schengen countries and the parallel strengthening of the external borders of the Schengen area.  Lifting of the internal borders guarantees the free movement of EU citizens and qualified third-country nationals.  Third-country nationals are subject to thorough checks when entering and exiting the Schengen area, while EU citizens and others who enjoy the right to free movement are subject to minimum checks for identity purposes.  A key feature of the Schengen area is the Schengen Information System (SIS), a large database used by competent national authorities to maintain public safety and security within the Schengen area and provide effective management of the external border.  Participating countries are mainly responsible for managing their external borders, while they are allowed to enter into bilateral agreements with neighboring states for implementing a local border regime.  Moreover, Schengen countries retain the right to reimpose internal controls for six months in exceptional cases.

Visa issuance for third-country nationals in the Schengen area is harmonized throughout the area based on EU regulations.  Third-country nationals must also meet additional criteria for entry into the Schengen area.

In February 2013, in an effort to facilitate and reinforce border control procedures, the European Commission proposed two new border protection measures: (1) an entry/exit system (EES), consisting of a centralized system for the registration of entry and exit data of third-country nationals crossing the external borders of the EU Member States, and (2) a Registered Traveler Program (RTP), which would allow frequent travelers to follow simplified border checks.   The EES system is designed to combat illegal immigration by identifying those who overstay their visas and those who no longer meet the criteria for staying legally in the Schengen area. 

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Introduction

The Schengen area, which is considered as the greatest achievement of European integration, is an area composed of twenty-six European countries with no internal borders; free movement of EU citizens, their families, and qualified third-country nationals; and a common external border.[1]  It is the product of intergovernmental cooperation of the original signatories to the Schengen Agreement, which was signed on June 14, 1985, by the three Benelux countries—Belgium, the Netherlands, and Luxembourg—as well as France and West Germany.[2]  As envisioned, the key objective of the Schengen Agreement was to gradually eliminate the border controls between them and at the same time establish more secure external borders.  A Convention implementing the Schengen Agreement was signed on June 19, 1990.[3]  It established detailed rules on the abolition of internal border controls, equivalent measures to strengthen the external borders, and procedures for issuing uniform visas.  A key feature of the Schengen area is the Schengen Information System (SIS), used by national customs, police, judicial authorities, and border guards to retrieve and exchange information on missing or wanted persons, stolen vehicles, or documents.[4]

The Schengen Convention and Agreement were further incorporated into the framework of the European Union and have been part of the EU body of law since 1999 pursuant to a protocol attached to the Amsterdam Treaty.[5]  Since then, the function of the Schengen area has been subject to a number of changes.  The Council of the EU has replaced the Executive Committee established by the Schengen Agreement and also incorporated the Schengen Secretariat into the General Secretariat of the Council[6]  The Council has also spelled out the contents of the Schengen acquis in conformity with the relevant provisions of EU treaties.[7]

Finally, under the 2009 Lisbon Treaty, which amended the Treaty on European Union and the Treaty on the Functioning of the European Union (TFEU), the Schengen acquis was incorporated into the EU system on the basis of Protocol No. 19.[8]

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Schengen Participating Countries

The Schengen area has expanded from the original five members in 1985 to twenty-six countries today.  The latest major enlargement occurred in 2007 with the abolition of the control of land and sea borders with the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, and Slovenia.[9]  Four countries of the Schengen area are not EU Members—Iceland, Norway, Switzerland (which joined the Schengen area in 2008), and Liechtenstein (which joined in 2011).  Two EU Members, Ireland and the United Kingdom, have opted out.  The UK is not part of the Schengen area and does not participate in the free internal border area nor does it participate in the external border and visa policy.  It does, however, participate in judicial and police cooperation.[10]  Ireland and the UK have the right at any time to participate in certain or all of the Schengen acquis provisions, based on a unanimous vote of the Council.[11]  Denmark’s status is more complex.  Although Denmark has signed the Schengen Agreement, it can choose whether or not to apply any new measures taken under Title IV of the EC Treaty within the EU framework (current title V, area of freedom, security and justice of the TFEU), even those that constitute a development of the Schengen acquis.  Denmark has the option to decide, within a period of six months after the Council has decided on a proposal or initiative to further develop the Schengen acquis, whether it will implement this measure in its national law.  If it decides to do so, the measure will create an obligation under international law between Denmark and the other Member States bound by the measure.[12]  Three small European States—Monaco, San Marino, and Vatican City—are also part of the Schengen area and maintain open or semi-open borders with other Schengen countries.

The success of the Schengen system depends on continuous, effective cooperation between participating States in securing their external borders by applying strict controls at land, sea, and airport borders; issuing a uniform set of visas; and ensuring collaboration among law enforcement authorities.[13]  New EU Members must also fully accept the Schengen acquis and any measure taken pursuant thereto.[14]

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The Schengen Borders Code

Schengen rules were integrated within the legal framework of the EU through article 2 of the Treaty of Amsterdam, which inserted Title IV on “Visas, asylum, immigration and other policies related to free movement of persons.”  Title IV was substantially amended, became Title V, and was renamed “Area of Freedom, Security and Justice” by the Treaty of Lisbon of 2009, which amended the Treaty on European Union and the TFEU.  Article 77 of Title V of the Lisbon Treaty authorizes the EU to develop an EU policy on visas and immigration to

a)      ensure the absence of any controls irrespective of nationality when crossing the internal borders,

b)      conduct checks and monitor the crossing of the external border, and

c)      gradually introduce an integrated management system for external borders.[15]  

In implementation of the above mandate, the EU adopted Regulation No. 562/2006 establishing a Community Code on the Rules Governing the Movement of Persons Across Borders, the Schengen Borders Code (SBC).[16]  The SBC repealed the relevant provisions of the Schengen Convention, three Schengen Executive Committee decisions on borders, the Common Manual as amended by EU measures, and other EU legislation.[17]

The SBC establishes detailed rules governing two specific instances: (1) the absence of border controls for persons crossing the internal borders between the EU Member States; and (2) border controls for persons crossing the external borders of the EU Member States.

Ireland and the United Kingdom do not participate in the SBC.  Bulgaria, Cyprus, and Romania do not fully apply the SBC’s provisions on the internal borders and do not use the SIS system.  Denmark participates because it has aligned its national legislation.  Iceland, Norway, and Switzerland apply the Code.[18]

Internal Borders

The SBC defines the internal and external borders of the Schengen area.  Thus, internal borders are the common land borders, including lake and river borders, and airports and ports for internal flights and boat connections.  External borders are all other borders that do not come within the definition of internal borders.[19]  Rules on borders do not affect the demarcation of the geographic borders of the EU Members, who retain their prerogative on this issue pursuant to international law.[20]

EU citizens enjoy the right to free movement, which also entitles them to move and work in any EU Member State.  The SBC does not affect the right to free movement within the Schengen border-free area.  Thus, the right of free movement is accorded to the following groups of persons:

     EU citizens and third-country nationals who are family members of an EU citizen and who fall within the scope of Directive 2004/38/EC on the right of free movement[21]

     Third-country nationals and their family members, irrespective of nationality, who because of agreements concluded between the EU and its Members and their countries of origin have a right of free movement equivalent to that enjoyed by EU citizens[22]

Local Border Traffic Regime

Under Regulation (EC) 1931/2006, Schengen countries have the option of concluding bilateral agreements with neighboring third countries that derogate from border controls for people living in their border areas in order to promote social and cultural interchange and strengthen regional cooperation.[23]  Residents of border areas may cross the external borders of a neighboring country, provided that they have a local border traffic permit and a travel document if required by relevant agreements and do not pose a threat to the security, public safety, and health of the Schengen countries.[24]  The territorial validity of a border permit is limited to the border area of the issuing country.[25]  The maximum stay, as provided for in the agreements, may be up to three months.[26]

Temporary Reintroduction of Control at Internal Borders

EU Members have the right in exceptional cases and when there is a serious threat to their public policy or internal security to reintroduce border controls at their internal borders.[27]  Members must notify the Commission when they do so.  For example, during the period of May 1 to October 31, 2012, control at the internal borders was reintroduced twice.  First, on April 20, 2012, Spain notified the Commission that because of the meeting of the European Central Bank in Barcelona on May 2–4, 2012, it intended to reintroduce control at the internal land border with France as well as at the Barcelona and Gerona airports from April 28 to May 4, 2012.  During that week, Spain performed border checks on 669,385 persons, and sixty-eight persons were refused entry.[28]  Secondly, on May 4, 2012, Poland informed the Commission that due to the EURO 2012 football championships from June 8 to July 1, 2012, it had decided to reintroduce control at its internal borders between June 4 and July 1.  Poland reported that during that period, the guards checked 28,980 persons, of whom twenty-two were refused entry and fifteen apprehended.[29]

The power to reintroduce border controls has been the subject of contention between the Commission, which seeks to exert more control on the external border, and the EU Members who want to retain their prerogative to introduce controls, as they see fit.[30]  As a result, the entire system of assessing the implementation of the Schengen rules has been called into question.  Under the previous system, Schengen countries conducted peer review of implementation of Schengen rules and the Commission’s role was limited to being an observer.[31]

In September 2011, the Commission proposed to amend the SBC and called for more “EU-based governance” to assess the implementation of Schengen rules.  The Commission suggested that Commission experts should make announced or unannounced visits at border-crossing points to evaluate the implementation of Schengen rules.  Consequently, the reintroduction of border controls would be decided at the EU level, rather than at the level of the Member States.[32]  On June 7, 2012, the Home Affairs Ministers reached an agreement that gave national governments the right to reintroduce controls at internal borders in unforeseen emergencies without the consent of the Commission or the Parliament.[33] 

External Border Controls

The external borders of the Schengen area cover 8,826 kilometers (about 5,484 miles) of land borders and close to 42,672 km (26,515 miles) of external sea borders.[34]  In 2005, the EU established a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex).[35]  While EU Members retain primary responsibility for the security and surveillance of their borders, Frontex is also responsible for the effective application of EU rules related to external border management.  Among Frontex’s duties is the carrying out of risk analyses, coordinating operational cooperation between Members, and deploying Rapid Border Intervention Teams to Member States when faced with a big influx of third-country nationals attempting to enter their territories illegally.[36] 

Individuals who wish to enter the EU may cross the borders at border-crossing points.  Each EU Member has designated its border-crossing points for the Commission.[37]  Persons who enjoy the right of free movement are subject to minimum checks to ensure their identity.[38]  Third-country nationals, however, are subject to thorough checks, which include inter alia checks on required documents and residence permits, scrutiny of travel documents, and checks of entry or exit stamps.[39]

Third-country nationals may enter for stays not exceeding three months in a six-month period provided that they do not pose a threat to public policy, security, or public health, and no alert has been issued in the Schengen Information System (discussed below) to refuse entry.[40]  In addition, they must meet the following requirements:

  • have a valid travel document
  • have a visa if they come from a country whose nationals must be in possession of a visa, pursuant to Regulation No. 539/2001[41]
  • have reasons for stay and sufficient financial means to support themselves during the stay and for the return trip[42]

The SBC establishes a number of procedural rights for persons who are refused entry.  Entry may be denied on the basis of a substantiated decision that states the “precise reasons for the refusal.”[43]  Such a decision must be made by a competent authority and be given to the individual concerned, who subsequently must acknowledge receipt.  Such individuals have the right to appeal, according to the national law of the EU Member involved.[44]

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Schengen Information System

The Schengen Information System (SIS) is a database that was initially established by the Schengen Convention in 1985 and is used by the competent authorities of the EU Members to exchange information on wanted or missing persons or stolen vehicles, and to ensure that individuals contained in the SIS database are precluded from entering the Schengen area.  In 2001, the Council decided to update the SIS with a more technologically advanced system, “SIS II,” to ensure the participation of more countries and to increase the storage of data.[45]  Consequently, Regulation No. 1987/2006 on the Establishment, Operation and Use of the Second Generation Schengen Information System was adopted.[46]  This Regulation establishes the requirements and procedures for the entry and processing in SIS II of alerts with respect to third-country nationals, and the exchange of supplementary information and data for the purpose of refusing entry into, or preventing further stay in, a Member State.  The SIS II has a central system containing the SIS II database, a national system in each Member State (the “N.SIS II”) that communicates with the central database, and a communications infrastructure between the central and national systems that provides an encrypted virtual network [47]

Articles 20–30 of Regulation 1987/2006 deal with immigration issues.  These articles establish rules concerning the grounds for issuing immigration alerts, types of data kept, access to alerts by competent national authorities, and data retention.  They also provide rules for the use of photographs and fingerprints.[48]  The Regulation allows the use of biometrics to identify persons when the technology so permits.[49]

Mandatory alerts are issued by the EU Members to refuse entry or stay when a third-country national poses a threat to public security, safety, or national security.[50]  Such a situation arises, in particular, where the third-country national has been convicted with imprisonment of at least a year, or in the case of individuals for whom there are serious reasons to believe they have committed a serious crime or justified indications that they intend to commit such a crime.[51]

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Visas

Rules on visas have been harmonized throughout the Schengen area to ensure that individuals who enter the Schengen area meet visa requirements.  The following regulations, which are directly applicable within the legal systems of the Schengen countries, govern the matter:

  • Regulation (EC) No. 810/2009 Establishing a Community Code on Visas lays down the procedures and conditions for issuing short stay visas and airport transit visas[52]
  • Regulation (EC) No. 539/2001 on List of Third Countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from the requirement[53]
  • Council Regulation (EC) No. 1683/95 Laying Down a Uniform Format for Visas[54] 
  • Regulation (EC) No. 767/2008 on the Visa Information System (VIS),[55] which facilitates the exchange of data between Schengen countries pertaining to applications and issuance of short-stay visas, composed of a central IT system that communicates and is accessible by national systems[56]

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New European Agency for IT Management

As of December 2012, a new European Agency for Large-scale IT Systems has taken over the operational management of the VIS and a biometric database known as Eurodac,[57] and as of spring 2013, will assume the management of SIS II.  The main task of the Agency is to ensure that the systems under its responsibility are functioning effectively and are available on a twenty-four-hour basis in order to allow the exchange of data between national competent authorities.[58]

Because Schengen regulations intersect with EU legislation and national laws on privacy and personal data protection, the new Agency is assigned the task of ensuring that data protection requirements are guaranteed, as provided for in the relevant EU legislation.  The latter includes Directive No. 95/46/EC, which has been implemented by the EU Members and governs the processing of personal data by those Members, and Regulation (EC) No. 45/2001, which applies to the activities of EU institutions or actions by EU bodies.[59]

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New Proposals on “Smart Borders”

On February 28, 2013, the European Commission, as a follow-up to its 2011 Communication on “Smart Borders–Options and the Way Ahead,”[60] proposed two new border protection measures: (1) a centralized Entry/Exit System (EES) for the registration of entry and exit data of third-country nationals crossing the external borders of the EU Members for a short stay;[61] and (2) a Registered Traveler Program (RTP).  The stated reason for the proposed EES is to combat illegal immigration and to strengthen the management and protection of the external borders of the Schengen area.  The RTP is intended to facilitate border crossing for those frequent travelers from third-countries who have already been screened.

Entry/Exit System

Current Situation

Currently, at the EU level, there is no method for calculating the number of irregular immigrants, the majority of whom have overstayed their visas.  Current estimates indicate that there are between 1.9–3.8 million irregular immigrants in the EU.  In 2010, the Commission reported that only 505,220 irregular immigrants were caught.[62]  The Schengen Borders Code does not require the registration of a third-country national’s cross-border movements.  Currently, travel documents of such individuals are stamped by border guards at the entry and exit points of the Schengen area.  This is the only tool that can be used by border guards and immigration officials to calculate the duration of stay of a third-country national.  The existing SIS and VIS databases, described above, have not been designed to register cross-border movement.

Consequently, as the Commission identified in its Explanatory Memorandum to the EES proposal, there are no electronic means to find out where and when a third-country national has entered or left the Schengen area.  Thirteen Members—Bulgaria, Estonia, Spain, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Portugal, Romania, Slovakia, and Finland—have developed their own entry/exit systems and collect alphanumeric data (that is, data represented by letters, digits, or punctuation marks) on the people entering their territories.[63]  However, as the Commission pointed out, these systems can detect an overstay only in cases of third-country nationals who exit the same Member State that they entered.

The Proposal

The proposed EES is designed to improve the management and control of the external borders, combat irregular immigration, facilitate the cooperation between border and immigration national authorities, and provide access to data pertaining to the entry and exit of third-country nationals.[64]  Consequently, the EES is anticipated to facilitate decisions by national competent authorities pertaining to the

  • calculation of the duration of the authorized stay of third-country nationals,
  • identification of any person who may no longer meet the criteria for entry or stay within the territories of the Member States,
  • identification of those who overstay their visas, and
  • collection of statistics on the entries and exits of third-country nationals.[65]

Initially, the EES will process alphanumeric data and at a later stage will also use fingerprints as the most reliable method of identifying those without travel documents.[66]

The EES will consist mainly of a central system comprised of a central unit and a back-up unit to be used in the event of failure of the central system, and a National System that will operate on the basis of a uniform interface with each Member State.[67]  An important feature of the EES is that it will be equipped with an automated calculator, which will indicate the maximum authorized duration of stay.  Thus, it will be possible to inform the competent authorities of the authorized stay on border entry and will also identify third-country nationals upon exit who have overstayed their visas.[68]

Registered Traveler Program

Pursuant to the proposal, the RTP would consist of a “token-Central Repository” system for the storage of data on registered travelers, which would operate through the use of tokens kept by the individual travelers, and the Central Repository, which would be a centrally located physical storage of the RTP data.[69]  Third-country nationals who wished to participate in the RTP would need to be at least twelve years old and provide reasons or a need for travelling often for business, family, or other purposes.  Third-country nationals who held a multiple-entry visa, a residence permit, or a visa valid for at least one year would qualify for the program and be accepted, if they wished to participate.

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Theresa Papademetriou
Senior Foreign Law Specialist
March 2013

 

[1]The Schengen Area and Cooperation, Europa, http://europa.eu/legislation_summaries/justice_freedom_security/ free_movement_of_persons_asylum_immigration/l33020_en.htm (last visited Mar. 6, 2013).  See also Schengen, Borders & Visas, European Commission, http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/borders-and-visas/index_en.htm (last updated Nov. 29, 2012).

[2] Europa, supra note 1.

[3] The Schengen Acquis – Convention Implementing the Schengen Agreement of 14 June 1985 Between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the Gradual Abolition of Checks at Their Common Borders, 2000 Official Journal of the European Union (O.J.) (L 239) 19, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX: 42000A0922(02):EN:HTML.

[4] Schengen Information System (SIS), European Commission, Home Affairs, http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/borders-and-visas/schengen-information-system/index_en.htm (last updated Aug. 31, 2012). 

[5] Treaty of Amsterdam Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts, Oct. 2, 1997, 1997 O.J. (C 340) 1, http://eur-lex.europa.eu/LexUri Serv/LexUriServ.do?uri=OJ:C:1997:340:0001:0144:EN:PDF.

[6] Council Decision 1999/307/EC of May 1, 1999, Laying Down the Detailed Arrangements for the Integration of the Schengen Secretariat into the General Secretariat of the Council, 1999 O.J. (L 119) 49, http://eur-lex.europa. eu/LexUriServ/LexUriServ.do?uri=OJ:L:1999:119:0049:0052:EN:PDF.

[7] Council Decision 1999/435/EC of 20 May 1999, Concerning the Definition of the Schengen Acquis for the Purpose of Determining, in Conformity with the Relevant Provisions of the Treaty Establishing the European Community and the Treaty on European Union, the Legal Basis for each of the Provisions or Decisions which Constitute the Acquis, 1999 O.J. (L 176) 1, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1999: 176:0001:0016:EN:PDF.

[8] Protocol (No. 19) on the Schengen Acquis Integrated into the Framework of the European Union, 2012 O.J. (C 326) 290, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2012:326:FULL:EN:PDF.

[9] Schengen Area, European Commission, Home Affairs, http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/borders-and-visas/schengen/index_en.htm (last updated Dec. 19, 2012).

[10] Id

[11] Protocol No. 19, supra note 8, art. 4.

[12] Protocol (No. 22) on the Position of Denmark art. 4, 2012 O.J. (C 326) 299, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2012:326:0201:0330:EN:PDF.

[13] Europa, supra note 1.

[14] Protocol No. 19, supra note 8, art. 7.

[15] Consolidated Version of the Treaty on the Functioning of the European Union (TFEU) art. 77, 2012 O.J. (C 326) 47, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2012:326:FULL:EN:PDF.

[16] Regulation (EC) No. 562/2006 of the European Parliament and of the Council of 15 March 2006 Establishing a Community Code on the Rules Governing the Movement of Persons Across Borders (Schengen Borders Code [SBC]), 2006 O.J. (L 105) 1, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:105:0001: 0032:EN:PDF.

[17] Id. art. 39.

[18] Id. Recital 25.

[19] Id. art. 2, para. 1.

[20] TFEU, supra note 15, art. 77, para. 4.

[21] Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the Right of Citizens of the Union and Their Family Members to Move and Reside Freely Within the Territory of the Member States Amending Regulation (EEC) No. 1612/68 and Repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, 2004 O.J. (L 158) 77, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:158:0077:0123:EN:PDF.

[22] Id. art. 2, para. 5(a), (b).  Free movement of persons is extended to citizens from the European Economic Area (EEA) based on an agreement with Norway, Iceland, and Lichtenstein, and to citizens of Switzerland.

[23] Regulation (EC) No. 1931/2006 of the European Parliament and of the Council of 20 December 2006 Laying Down Rules on Local Border Traffic at the External Land Borders of the Member States and Amending the Provisions of the Schengen Convention, 2006 O.J. (L 405) 1, http://eur-lex.europa.eu/LexUriServ/LexUriServ. do?uri=OJ:L:2006:405:0001:0022:EN:PDF.

[24] Id. art. 4.

[25] Id. art. 7, para. 2.

[26] Id. art. 5.

[27] SBC, supra note 16, art. 23.

[28] Report from the Commission to the European Parliament and the Council, Second Biannual Report on the Functioning of the Schengen Area, 1 May 2012 – 31 October 2012, at 3, COM (2012) 686 final 11/23/1012  http://ec.europa.eu/dgs/home-affairs/what-is-new/news/pdf/2_en_act_part1_v7_schengen.pdf.

[29] Id. at 4.

[30] Anna Sonny, Comment, Schengen Disputes Continues, Civitas (Institute for the Study of Civil Society) (Feb. 8, 2013), http://civitas.org.uk/newblog/2013/02/schengen-dispute-continues/.

[31] Press Release, European Commission, Schengen: EU Commission Proposes a European Approach to Better Protect Citizens’ Free Movement (Sept. 16, 2011), http://europa.eu/rapid/press-release_IP-11-1036_en.htm.

[32] Id.

[33] Toby Vogel, Disputed Borders, European Voice.com (June 14, 2012), http://www.europeanvoice.com/ article/imported/disputed-borders/74600.aspx.

[34] 1 Visas and Border Controls: EU Immigration and Asylum Law 119 (Steve Peers et al. eds., 2012).

[35] The name “Frontex” is derived from the French frontieres exterieures (external borders).  Id. at 119 n.2.  Regulation (EC) No. 2007/2004 Establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, 2004 O.J. (L 349) 1, http://eur-lex.europa.eu/LexUriServ/site/en/oj/2004/l_349/l_34920041125en00010011.pdf.

[36] Regulation (EC) No. 863/2007 of the European Parliament and of the Council of 11 July 2007 Establishing a Mechanism for the Creation of Rapid Border Intervention Teams and Amending Council Regulation (EC) No. 2007/2004 as Regards That Mechanism and Regulating the Tasks and Powers of Guest Officers art. 12(3), 2007 O.J. (L 199) 30, http://www.frontex.europa.eu/assets/Legal_basis/rabit_regulation-863-2007.pdf.

[37] SBC, supra note 16, art. 4, para. 1.

[38] Id. art. 7, para. 2.

[39] Id. art. 7, para. 3, (i)–(iii).

[40] Id. art. 5, para. 1(d)–(e). 

[41] Council Regulation (EC) No. 539/2001 of 15 March 2001 Listing the Third Countries Whose Nationals Must Be in Possession of Visas When Crossing the External Borders and Those Whose Nationals Are Exempt from That Requirement, 2001 O.J. (L 81) 1, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2001:081: 0001:0007:EN:PDF.

[42] SBC, supra note 16, art. 5, para. 1(a)–(c).  Annex I of the Code provides a nonexhaustive list of documents needed to prove the purposes of entry and stay.

[43] Id. art. 13(2).

[44] Id. art. 13(3).

[45] Council Decision 2001/886/JHA of 6 December 2001 on the Development of the Second Generation Schengen Information System (SIS II), 2001 O.J. (L 328) 1, http://eur-lex.europa.eu/LexUriServ/LexUriServ. do?uri=OJ:L:2001:328:0001:0003:EN:PDF.

[46] Regulation (EC) No. 1987/2006 of the European Parliament and of the Council of 20 December 2006 on the Establishment, Operation and Use of the Second Generation Schengen Information System (SIS II), 2006 O.J. (L 381) 4, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:381:0004:0023:EN:PDF.

[47] Id. art. 4.

[48] Id. art. 22(a). 

[49] Id. art. 22(c).

[50] Id. art. 24, para. 2.

[51] Id.

51 Regulation (EC) No. 810/2009 of the European Parliament and of the Council of 13 July 2009 Establishing a Community Code on Visas (Visa Code), 2009 O.J. (L 243) 1, http://eur-lex.europa.eu/LexUriServ/ LexUriServ.do?uri=OJ:L:2009:243:0001:0058:EN:PDF.

[53] Regulation (EC) No. 539/2001 Listing the Third Countries Whose Nationals Must Be in Possession of Visas When Crossing the External Borders and Those Whose Nationals are Exempt from that Requirement, 2001 O.J. (L 81) 1, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2001:081:0001:0007:EN:PDF.

[54] Council Regulation (EC) No. 1683/95 of 29 of May 1995, Laying Down a Uniform Format for Visas, 1995 O.J. (L 164) 1, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31995R1683:EN:HTML.

[55] Regulation (EC) No. 767/2008 of the European Parliament and of the Council of 9 July 2008 Concerning the Visa Information System (VIS) and the Exchange of Data Between Member States on Short-stay Visas (VIS Regulation), 2008 O.J. (L 218) 60, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:218:0060:0081:EN:PDF.

[56] Visa Information System (VIS), European Commission, Home Affairs, http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/borders-and-visas/visa-information-system/index_en.htm (last updated Oct. 11, 2012).

[57] Eurodac is a biometric database that contains fingerprints of third-country nationals seeking asylum and illegal immigrants caught at the border.  See Council Regulation (EC) No. 2725/2000 of 11 December 2000 Concerning the Establishment of ‘Eurodac’ for the Comparison of Fingerprints for the Effective Application of the Dublin Convention, 2000 O.J. (L 316) 1, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2000:316: 0001:0010:EN:PDF.

[58] EU Agency for Large-Scale IT Systems, European Commission, Home Affairs, http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/borders-and-visas/agency/index_en.htm (last updated Mar. 5, 2013).

[59] Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data, 1995 O.J. (L 281) 31, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1995:281:0031:0050:EN:PDF; Regulation (EC) No. 45/2001 of 18 December 2000 of the European Parliament and the Council on the Protection of Individuals with Regard to the Processing of Personal Data by the Community Institutions and Bodies and on the Free Movement of Such Data, 2001 O.J. (L 8) 1, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri= OJ:L:2001:008:0001:0022:EN:PDF.

[60] Communication from the Commission to the European Parliament and Council, Smart Borders – Options and the Way Ahead, COM (2011) 680 final (Oct. 25, 2011), http://eur-lex.europa.eu/LexUriServ/LexUriServ.do ?uri=COM:2011:0680:FIN:EN:PDF.

[61] Proposal for a Regulation of the European Parliament and of the Council Establishing an Entry-Exit System (EES) to Register Entry and Exit Data  of Third-country Nationals Crossing the External Borders of the Member States of the European Union, COM (2013) 95 final (Feb. 28, 2013), http://ec.europa.eu/dgs/home-affairs/doc_centre/borders/docs/1_en_act_part1_v12.pdf.

[62] Id.

[63] Id. at 2.

[64] Id. art. 4

[65] Id.

[66] Id. Recital 8.

[67] Id. art. 5.

[68] Id. art. 9.

[69] Id. art. 2, para. 1.

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Last Updated: 11/03/2014