Péter Kovács

Co-operation in the Spirit of the Schengen Agreement

The Hungarians beyond the Borders

The number of conferences, essays and political analyses about the Schengen agreement is increasing. The present essay makes an attempt to briefly sum up those co-ordinates in international and European law that Hungary and the Hungarian nationalities would have to face in connection with the so-called Schengen agreement.

The word Schengen sounds increasingly alarming for the Hungarian nationalities outside Hungary. Our compatriots living across the border look upon the European Union's approaching border control rules announced for the turn of the millennium almost as a natural disaster. Following the political changes in 1989, Hungarians could come and go across the border almost freely; now the emerging European policies about the visa system make Hungarian-Hungarian connections uneasy. This uneasiness is in sharp contrast with the euphoria felt in Hungary over the fact that, along with the Czech Republic, Poland and Slovenia, the talks in preparation for joining the Union began in 1998.

The frustration that resulted from the debates about the Hungarian negotiating position in Spring, 1998, the wavering of the so-called harmony of triple priority between 1994 and 1998, and the excessive use of the slogan "the requirements of the European integration" had the consequence that Hungarians on both sides of the border became sensitive to certain questions: one big question for Hungarians within Hungary concerns the problem of ownership of land, and another, for Hungarians without, concerns Schengen.

What is this Schengen Agreement really about, and what are the perspectives? What steps led to the emergence of the present system?


Schengen through Maastricht to Amsterdam-and Onward?

The Schengen Agreement of June 14, 1985, originally applied to the individual member states of the European Community, was first amended by the Schengen Agreement of June 19, 1990, then, in the euphoria of the Maastrich Agreement it started to move on the way to become the primary legal source of Union law. The original priorities were changed: the philosophy of 1985, whereby the movement of goods should be eased, gave way, by 1990, to the agreement on immigration policies, foreigners' control and refugees' control. In this way it regulates in great detail the immigration, the various types of visa, and the goal of their harmonisation.

The Maastricht Treaty opens the way for the harmonisation of the "issues of common interests (...) in the areas of justice and home affairs. Article 100C orders the approximation of the visa policies of the member states, as the Council, acting unanimously on a from the Commission and after consulting the European Parliament, shall determine (with qualified majority after 1996) the third countries whose nationals must be in possession of a visa when crossing the external borders of the member states."

Article K.1 states the following:

"K.1 For the purposes of achieving the objectives of the Union, in particular the free movement of persons, and without prejudice to the powers of the European Community, member states shall regard the following areas as matters of common interest:

(1) asylum policy;

(2) rules governing the crossing by persons of the external borders of the member states and the exercise of controls thereon;

(3) immigration policy and policy regarding nationals of third:

(a) conditions of entry and movement by nationals of third countries on the territory of member states;

(b) conditions of residence by nationals of third countries on the territory of member states, including family reunion and access to employment;

combatting unauthorised immigration, residence and work by nationals of third countries on the territory of member states;


Article K.2 then continues as follows:

"(1) The matters referred to in article K.1 shall be dealt with in compliance with the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 and the Convention relating to the Status of Refugees of 28 July 1951 and having regard to the protection afforded by member states to persons persecuted on political grounds.

(2) This Title shall not affect the exercise of the responsibilities incumbent upon member states with regard to the maintenance of law and order and the safeguarding of internal security."

The closing document of the inter-governmental conference held in 1996-1997, the meagre Amsterdam Treaty of June 18, 1997, seems to elevate the Schengen agreements to status of community law. The word "seems" is justified, as after their enactment the Amsterdam treaties allow the regulations to be effected according to the Union Law's classical rules of decision making. (We must point out that for this reason the Schengen agreement can under no circumstances be regarded as part of the acquis communautaire, the Union's dowry.)

What is laid down in the Amsterdam Treaty regarding the visa system?

It sets out the following in great details:

Article 73I

"In order to establish progressively an area of freedom, security and justice, the Council shall adopt:

within a period of five years after the entry into force of the Treaty of Amsterdam, measures aimed at ensuring the free movement of persons in accordance with article 7A, in conjunction with directly related flanking measures with respect to external border controls, asylum and immigration, in accordance with the provisions of article 73J(2) and (3) and article 73K(1)(a) and (2)(a), and measures to prevent and combat crime in accordance with the provisions of article K.3(e) of the Treaty on European Union;

The Council, acting in accordance with the procedure referred to in article 73O, shall, within a period of five years after the entry into force of the Treaty of Amsterdam, adopt:

(1) measures with a view to ensuring, in compliance with article 7A, the absence of any controls on persons, be they citizens of the Union or nationals of third countries, when crossing internal borders;

(2) measures on the crossing of the external borders of the member states which shall establish:

(a) standards and procedures to be followed by member states in carrying out checks on persons at such borders;

(b) rules on visas for intended stays of no more than three months, including:

(i) the list of third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement;

(ii) the procedures and conditions for issuing visas by member states;

(iii) a uniform format for visas;

(iv) rules on a uniform visa;

measures setting out the conditions under which nationals of third countries shall have the freedom to travel within the territory of the member states during a period of no more than three months."

Article 73K

"The Council, acting in accordance with the procedure referred to in article 73O, shall, within a period of five years after the entry into force of the Treaty of Amsterdam, adopt: (...)

(3) measures on immigration policy within the following areas:

(a) conditions of entry and residence, and standards on procedures for the issue by member states of long term visas and residence permits, including those for the purpose of family reunion,

(b) illegal immigration and illegal residence, including repatriation of illegal residents;

(4) measures defining the rights and conditions under which nationals of third countries who are legally resident in a member state may reside in other member states.

Measures adopted by the Council pursuant to points 3 and 4 shall not prevent any member state from maintaining or introducing in the areas concerned national provisions which are compatible with this Treaty and with international agreements.

Measures to be adopted pursuant to points 2(b), 3(a) and 4 shall not be subject to the five-year period referred to above."

Article 73O

"1. During a transitional period of five years following the entry into force of the Treaty of Amsterdam (see ¶25,500), the Council shall act unanimously on a proposal from the Commission or on the initiative of a member state and after consulting the European Parliament.

After this period of five years:

weighted voting

(in certain cases) unanimous

By derogation from paragraphs 1 and 2, measures referred to in article 73J(2)(b) (i) and (iii) shall, from the entry into force of the Treaty of Amsterdam (see ¶25,500), be adopted by the Council acting by a qualified majority on a proposal from the Commission and after consulting the European Parliament.

Article 73Q

"The application of this Title shall be subject to the provisions of the Protocol on the position of the United Kingdom and Ireland and to the Protocol on the position of Denmark and without prejudice to the Protocol on the application of certain aspects of article 7A of the Treaty establishing the European Community to the United Kingdom and to Ireland."


Is There a Solution to the Problem?

It is in Hungary's vital interests to ensure that the neighbouring countries with Hungarian minorities make it to the list of non-visa states. Slovakia has already been enjoying that status, and after the change of government in Autumn 1998 this status will in all probability be re-confirmed: the British move to re-instate the visa prerequisite following the large number of Gypsy families arriving in Great Britain and Canada from Slovakia and their application for political asylum received no support from the European Union.

Romania has a chance to make to this category, and our interest is that if the common visa system is accomplished, this country, too, be on that list. This is also in Romania's interest. Here Hungary could demonstrate forcefully that in foreign politics she lends support to the Romanian efforts towards integration. This would not change the present practice regarding the Romanian citizens' entry into Hungary.

However, according to the scheduled process for the Schengen Agreement the decision about the list of non-visa states will be made soon, and we shall not have a say in it. It is still uncertain whether Romania will be on that list. From the viewpoint of the EU there are arguments both for and against Romania's non-visa status. One argument for it is that the positive developments in Romania's domestic politics should be supported; the argument against it is that Romania has an agreement with Moldavia whereby Romania treats the Moldavian population as her quasi-citizens with regard to co-operation across the borders, work permit, etc. In this way the EU can rightly be worried that the Union's employees' market would be inundated not just by the already large Romanian population but also by the Moldavian. A similar reason is that Romania's non-visa status could serve as a precedent for Ukraine, and so a great mass of people would be overflowing across the Schengen border.

The different elements of the Hungarian viewpoint had different reception by the authorities. While Hungary has a strong case regarding Romania's non-visa status because of the two million ethnic Hungarians there, the same vis-a-vis Ukraine cannot be said, as there are only 150,000 or 200,000 Hungarians there. Ukraine and Serbia have no chance to make it to the list of non-visa countries in the foreseeable future, and Croatia's prospects are rather dim, too.

As a non-member state, Hungary obviously can play a decisive role neither in the determination of the list of non-visa countries, nor in the drafting of the model visa. Once the Amsterdam Treaty is implemented, and the conceptual questions of the European visa are settled, Hungary will have the following options in presenting her case:

-With regard to the countries where separate agreements secure the waiving of passports, the permission of traffic between the population of settlements across the border and non-visa status, Hungary will have obligations for the duration of these agreements. On accepting the Schengen list of non-visa states we would have to cancel these agreements. If they had been signed for an unspecified duration, the these could be cancelled with a notice of 30, 60 or 90 days. The European Union's negotiating delegation will obviously advise us to practice our right of cancellation. The same will be incomparably more difficult, however, in the case of agreement signed for a specified term (ten years, for example), which could not be cancelled without some consequences.

-Will the Schengen list of visa states be compulsory for Hungary before her admission to the European Union? This follows neither from international law, nor from Union law, the EU's list of visa countries will be inter alios acta for Hungary, in other words it will not bind us in any way. At the same time, we obviously cannot be indifferent to the content of this list, as this would form part of the acquis communautaire after our admission. Every suggestion on the part of the EU that we should join the system before our actual admission so as to "prove our maturity" is against our interests, and therefore all such proposals should be resisted during the preparatory talks.

-At the preparatory talks it will be in Hungary's interest to ensure the postponement of the introduction of the Schengen rules, i.e. derogation. Since Romania, the country with the largest Hungarian minority, is among the countries that would be admitted in the second round, and whose admission will be discussed in the foreseeable future, Hungary's application for derogation is not at all a "sacred cow" and is not meant to be applicable for an unreasonably long period. In the cases of Croatia, Serbia and Ukraine the same will be a much more difficult question, and one with a much more complex time-table.

-Even in case of Hungary's mandatory acceptance of the Schengen visa list and visa practice-hopefully not happening before our actual admission-there remain certain possibilities in the documents of Schhngen, Maastricht and Amsterdam, which would allow the realisation of specific Hungarian interests. It is far from evident, however, that the rules laid down in the documents of Schengen, Maastricht and Amsterdam would be incorporated in the EU visa system in their present form. It is not clear, for example, whether the Schengen agreement would be applied only as a case law or as a legal article in the EU legal system.

The possibilities in the Schengen Agreement:

It is well known that Schengen itself envisages "parallel systems", with one dominant element admittedly, but nevertheless, not a homogeneous system. Article 9 of the Schengen Agreement provides such a possibility in principle, but only "exceptionally and for overriding reasons of national policy". In other words, that might mean the maintenance of exceptional treatment for the leading elite of the Hungarians beyond the borders, but not for the masses. The exception, however, has a tag: persons allowed to enter in this way would not be permitted to enter the other EU member countries. In other words, in a sense we would be within the Schengen borders, and in a way we would not: we would be asked to increase the border control on our western frontiers all the same.

Article 14 of the Schengen Agreement mentions the possibility of issuing passports with limited validity for the countries concerned, in a sense bringing back the red and the green passports used before the political changes of 1989 in Serbia and Romania, both for short-distance border traffic or for the whole territory of the country. From the viewpoint of the border control this has the same consequence as the earlier version, in other words we would be obliged to operate the Schengen control on our western borders.

Nothing seems to suggest that the issuing of visa should be centralised within a country. It would be better, not only for the Hungarians of Transylvania but also for the Romanians living there, if visas would be issued not only in Bucharest but also in Kolozsvár, or even at the border crossings (as it had been the case during the late Kádár era). Since one of the central elements of the Schengen co-operation is the shared data base and information system, the screening of potentially dangerous elements could be done directly at the border. This would have the added advantage that Schengen would begin not at the border between Austria and Hungary, but on Hungary's southern and eastern borders. When working effectively, such a visa system seems reconcilable with the Schengen Agreement. One possibility would be to open up local offices for the consulates of Kolozsvár, Belgrade and in the towns and settlements near the Hungarian border, including the augmentation of the network of honorary consuls.

The Possibilities According to Maastricht

Since the Maastricht Treaty itself mentions the applicability of the European Convention of Human Rights (ECHR), it would make sense to note that the document, which prohibits discrimination against the disadvantaged, does in fact allow positive discrimination, and does not specifically ban all forms of preferential treatment. Also, the Maastricht Treaty included communal rights and legal practices among its mandatory legal norms in a generalised form, and so the Hungarian-Hungarian family connections, the historical and cultural identity, the dismemberment of the Hungarian nation (and Hungarian people) by borders all constitute elements that could be used to put together a case founded on rational justification. There is nothing in the text to suggest that the reference to the ECHR should exclusively applied to the refugee policies of the Schengen Agreement. In consequence, theoretically it is quite feasible that some form of preferential treatment be dispensed on linguistic or national basis, as long as we are able to provide an appropriate expression, and realise the means and the inherent proportions of the goal.

The Possibilities of the Amsterdam Treaty

The Amsterdam Treaty itself points out that the rules of current international agreements might imply differences in application, thus allowing for a several-year time delay in cancelling existing visa agreements, provided that the states concerned agree that the technical difficulties of cancelling have increased in the meantime, or that the agreement had in the meantime become one of fixed term.

The Amsterdam Treaty envisages a differentiated system, which is clearly shown by the fact that one of its clauses, along with the associated documents, confers a special status on the United Kingdom and Denmark, allowing these two countries to operate outside the system for various reasons. Admittedly, this happens because these countries insist on carrying out their own border control in addition to the Schengen border controls, in other words, they strengthen, rather than weaken, the control. This implies, from Hungary's viewpoint, that the acquis character of Schengen is relative: legally it is possible to stay outside it, provided that the special status does not weaken the attainment of the Schengen goals. Regardless of this, the view, whereby the special status won by the United Kingdom does not mean a precedent for those wishing to join: the point here is that in a legal sense Schengen can function without full participation.



On the basis of the above I would like to sum up those co-ordinates, which I think are relevant to the Hungarian-Hungarian relations and our EU integration policies in the shadow of Schengen.

The development of a Schengen type co-operation in the immediate future does not coincide with the Hungarian interests; in other words, the slower they are realised, the better it is for Hungary.

In all likelihood the Schengen co-operation will proceed, and the decision regarding both the list of visa countries and the model visa will be passed, with a qualified majority and without us having a say in it.

It is in the interest of Hungary and the Hungarian nation that the neighbouring states remain on the list, or be added to the list, of non-visa countries, and in this the Romanian and the Hungarian interests completely coincide.

Should the list of the visa countries include a state of special interest from the Hungarian viewpoint, it will no longer be in Hungary's interest to observe the Schengen rules before her actual admission. Regarding the countries not adjacent with Hungary, there is no reason why we should not accept the Schengen list of visa countries.

In the course of the negotiations leading up to the admission, the special position of the Hungarian people should be presented at the European level, and efforts should be made to assert the Hungarian interests. The possibility of special status and treatment is indicated in several articles of both the Schengen Agreement and the Treaties of Maastricht and Amsterdam.

The "price" of the special status is that Hungary would have to operate the Schengen system on her borders with the other EU member states, regardless of the fact that these are "internal" borders, and the associated costs would have to be born by the country. The requirements regarding the finances and the infrastructure should be assessed and planned ahead.

The moment will come during the negotiations when the EU negotiating delegation will emphatically declare that the temporary objection to the Schengen co-operation, and the insistence on derogation for 5-10-15 years would delay Hungary's admission. As soon as this warning turns out to be more than a negotiating tactic, Hungarian diplomacy should be ready to pass a decision in line with the requirements of the constitution, the international law and national politics.

Because of the system of weighted voting within the EU Council, even after her admission Hungary will not be in the position to assert her interest alone. If the admission of the neighbouring states is delayed for some reason, the visa privileges will only be applied, if Hungary has them accepted by then.