What is “Schengen”?

In professional jargon the term “Schengen” or the Schengen Agreement is used for two international agreements which were signed in Schengen, a town in Luxembourg. The name of this town has thus become synonymous with the abolition of border controls at the internal borders of the Schengen Member States. The Schengen measures establish common rules on controls at the external borders, provide for a common visa policy and introduce accompanying measures which enable the abolition of internal border controls (in particular in the field of police and judicial co-operation in criminal matters). These rules have thus direct implications for citizens in the area of free movement of people, as they foresee the following:

• abolition of border controls at common internal borders;

• a common set of rules applying to people crossing the external borders of the Member States integrated into the Schengen area;

• separation of people travelling within the Schengen area from those arriving from countries outside the Schengen area - at air terminals and, where possible, at seaports;

• harmonisation of the rules regarding the conditions of entry and visas for short stays.

The basic idea of the Schengen area is therefore to ensure a right to free crossing of the internal borders (abolition of controls at internal borders) on the one hand, and a series of measures on the other which should ensure that there is no deterioration of security in the Member States; such measures are for that reason called compensatory measures (measures that should compensate for the security deficit which inevitably occurs due to the abolition of internal border controls). These measures will be carried out at the external borders of the Schengen Member States, inside the states, through cross-border police co-operation, the joint information system called the Schengen Information System (SIS), and through the harmonisation of the Member States’ legislation.

What is the Schengen acquis?

The Schengen acquis is a set of rules adopted within the intergovernmental Schengen group, which include: the Schengen Agreement from 1985 and the Convention implementing the Schengen Agreement from 1990, the accession protocols concluded with Italy, Spain, Portugal, Greece, Austria, Denmark, Finland and Sweden, the agreement with Norway and Iceland, separate agreements with Great Britain and Ireland, and the decisions and declarations adopted by the Schengen bodies. In 1999, the Schengen acquis was incorporated into the EU legal framework by the signing of the Treaty of Amsterdam, and has been developing very rapidly since then. Several of the provisions have been replaced and amended where necessary by subsequent EC and EU legislative instruments. The complete set of these provisions in force is called the Schengen acquis.

The Schengen acquis includes a detailed series of measures designed to compensate for the abolition of internal border controls by reinforcing security at the EU external borders. The most important of these measures is the requirement stating that Member States must ensure that appropriate checks and effective surveillance are carried out at their EU external borders. Once a person is inside the Schengen area, he or she is free to move around wherever he or she wants for a short period of time. It is therefore vital that checks and controls at the EU external borders be rigorous enough to stop illegal immigration, drug smuggling and other illegal activities.

In the event of a serious threat to public order or public security, any Member State is entitled to an exception and can temporarily reinstate controls at its internal borders.

Which countries are included in the Schengen area?

The old states of the Schengen area (Austria, Belgium, Denmark, Finland, France, Germany, Greece, Iceland, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden, and Norway) were on 21 December joined by the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Malta, Poland, Slovakia and Slovenia.  

Cyprus (EU member state since 2004), Bulgaria and Romania (EU member states since 2007) are still preparing to join the Schengen area.

Ireland and Great Britain are EU member states but not Schengen members. Closer police and judicial cooperation with the Schengen countries in criminal matters is planned for these two countries in the future.

Furthermore, Switzerland decided to join the Schengen area approximately at the end of 2008. It will have the same status of an associated country as Norway and Iceland that are also not EU member states. Liechtenstein is also interested in the implementation of the Schengen acquis.

Future EU member states will also integrate into the Schengen area when they have fulfilled the requirements.

What are the main implications of the Schengen acquis for EU citizens and citizens of the Schengen countries?

The most noticeable implication of the Schengen acquis for individuals is the fact that they no longer have to show their passports or identity cards when crossing borders between two Schengen Member States. However, this does not imply that the same rules regarding the possession of a travel document or an identification document apply when travelling inside the Schengen area or when travelling inside an individual Member State. Namely, the Schengen Member States have retained the right, on the basis of their national legislation, to carry out identity checks throughout their territories as part of police duties.

Every citizen of the European Union travelling within the Schengen area is required to carry a valid identity card or a valid passport; a national of a third country is required to carry a valid passport and a document provind that they are staying legally in the Schengen area (a visa or a residence permit).

What are the main implications of the Schengen acquis for third country nationals?

As a national of a third country you may enter the territory of the Member States applying in full the Schengen provisions and travel within their territory for a period of up to three months provided that entry conditions laid down in the Schengen acquis, now integrated into the EU framework, are fulfilled:

•  possession of a valid travel document,

•  possession of a short stay visa if required,

•  ability to demonstrate the purpose of the journey,

•  possession of sufficient means of subsistence for the period of stay and for the return to the state of origin, and

• you are not listed in the Schengen Information System for the purpose of refusing entry and not considered to be a threat to public order or national security for all Schengen States.

If you wish to stay in the territory of the Member State for more than three months, you still need a national long term visa or residence permit. It is up to individual Member States to set their own requirements.

In 2001 the Council of the European Union adopted a regulation listing the third countries whose nationals must be in possession of short stay visas when crossing the external borders of Member States and those whose nationals are exempt from that requirement. The regulation was amended in 2003 and 2006.

On the basis of the Schengen acquis, a valid residence permit issued by a Schengen Member State together with a travel document can substitute for a visa. Thus a third country national presenting his or her passport and a valid residence permit issued by a Schengen Member State is allowed to enter another Schengen Member State without needing a visa. This equivalence principle does not apply to residence permits issued by the United Kingdom and Ireland, since they do not apply these provisions of the Schengen acquis.

With a Schengen visa for third country nationals you may enter one country and travel freely throughout the Schengen area because internal border controls have been abolished.

Where can third country nationals apply for a visa?

If you intend to visit only one Schengen Member State, you must apply for a visa at the Embassy or Consulate of this Member State. If you intend to visit several Schengen countries, you must apply for a visa at the Embassy or Consulate of the country which is the main destination country. If you intend to visit several Schengen countries but do not have a main destination, you must apply for a visa at the Embassy or Consulate of the country which will be the first point of entry, or at the Embassy or Consulate of the country where you plan to spend the longest period of time.

All Schengen Member States issue visas under the same conditions, taking account of each other’s interests. A visa issued by one Schengen Member State is therefore also valid for the others, which benefits third country nationals wanting to visit more than one Schengen Member State. In exceptional cases, visitors that do not meet the common entry conditions are issued with a visa valid only for a certain territory, i.e. a visa valid only for the Schengen Member State which issued it. Such cases arise for humanitarian reasons or reasons relating to national interest or compliance with international obligations.

What is Schengen security policy?

At the EU external border, border checks are carried out on behalf of all Member States (minimum border checks for the nationals of the EU States, European Economic Area, Switzerland, and their family members, and thorough checks for all third country nationals).

Systematic stamping of the passports of third country nationals ensures that the legality and length of stay of third country nationals in the Schengen area are being checked. If aliens do not meet the requirements for entering one of the Member States, they must be prevented from entering the entire Schengen area, since border controls no longer exist at the internal borders. The non-carrying out of border controls is allowed only in exceptional cases, and even in such cases the passports of third country nationals need to be consistently stamped.

The Member States have committed themselves to providing appropriate infrastructure at border crossing points, appropriate equipment and a sufficient number of well-trained police officers, so that delays and waiting times at external borders may be avoided if these standards are consistently being implemented. Border surveillance outside border crossing points needs to be organized in such a way (with a sufficient number of police officers and equipment) so as to ward off illegal border crossing. As regards external border surveillance, common standards apply, which are the same for the entire external Schengen border (therefore border surveillance should not be different in individual countries). A detailed description of the measures and procedures can be found in the Schengen Borders Code, the Schengen Catalogue on Recommendations and Best Practices and in several other acts.

Compensatory measures implemented in the interior of the country include police powers – which may be exercised in all areas in the interior of the country including the border area at the interior border – to check whether aliens meet the requirements for residing in the territory of the Member States (these checks are not equal to border controls and are not carried out systematically), the obligation of aliens to possess appropriate documents for crossing the border and residing in the country, and the obligation of persons to register themselves when residing in any of the Member States (so-called police registration). In exceptional cases if national security interests demand such actions, a Member State can reinstate controls at its internal borders for the required period of time.

The set of provisions regulating cross-border police co-operation is also very important. The Schengen convention describes in great detail the forms of cross-border police co-operation introduced after the abolition of border controls, such as cross-border pursuit and cross-border surveillance of perpetrators of criminal offences, information exchange, secondment of liaison officers to other countries and simplification of the procedure of extradition of offenders. The Schengen acquis determines the framework for cross-border co-operation, which must be specified in international agreements.

The main compensatory measure is the Schengen Information System. The Schengen Information System is a shared digital database containing data on persons who are sought in order to be arrested with a view to extradition, refusal of entry, handing over to a welfare body, discreet surveillance and similar actions, as well data on objects – mostly stolen vehicles, documents, weapons and marked money resulting from criminal activities.

SCHENGEN AND SLOVENIA

What changes will the accession to the Schengen area bring to Slovenia?

When Slovenia became part of the Schengen area, border controls at the borders with Austria, Italy and Hungary were abolished, while at the same time border controls at the border with Croatia were reinforced since Slovenia’s entry into the Schengen area implies that Slovenia protects the common EU external border.

This means that Slovenia exercises control of the EU external border at the border with the Republic of Croatia on behalf of the Member States of the Schengen area. Border control includes border checks at border crossing points and surveillance of the border outside the border crossing points.

In addition to the Schengen control, supervision of persons, phytosanitary control, customs control and inspection supervision are carried out at the EU external borders at specially designated control points. There are six points of this kind in Slovenia: three of them are situated at the land border (Gruškovje, Obrežje and Jelšane border crossing points), one is a railway border control point (Dobrova border crossing), and two more are situated at the Ljubljana Airport and at the Seaport of Koper.

What documents are needed in order to cross the state border and to reside in other countries?

Slovenian citizens:

Requirements for border crossing have not changed much, the only difference is that there is no border control at internal borders, which used to be carried out by the police. However, every EU citizens is still required to carry a valid identity card or a passport in order to move within the EU Member States.

Slovenian citizens can enter and reside in all EU member states, European Economic Area (Iceland,  Liechtenstein, Norway) and Switzerland with a valid identity card or a passport. They can also enter Croatia and Montenegro with a valid identity card on the basis of a bilateral agreement with Croatia and unilateral decision by the Montenegrin government. Passport is still required for travelling to all other countries.

Third country nationals:

Third country nationals holding a permit for temporary or permanent residence in the Republic of Slovenia may travel freely to other Member States with a valid passport provided that they are not listed as persons being prohibited entry into the state of their destination. They are entitled to reside in another Member State for up to three months; after entering they have to register residence with a competent authority in line with the legislation of that particular state. Any alert issued for the purposes of refusing entry into the state issuing such an alert need to be observed; otherwise such nationals  may undergo investigation for illegal entry in a particular state.  

Documents needed by third country nationals are: a valid passport and a valid visa (if required) in order to reside in the entire Schengen area for up to three months, a valid passport and a national visa or residence permit in case of a longer stay, and residence permit issued to a third country national by a Schengen country accompanied by a passport in order to enter other Schengen countries without a visa.

Croatian citizens are allowed to enter Italy, Hungary and Slovenia with an identity card accompanied by a card containing personal data: first name, last name and identity card number. The card is stamped on each entry into and exit from those countries. Identity cards (accompanied by a special card) are allowed only for Italy, Hungary and Slovenia. Croatian citizens are required to carry a passport in order to enter other countries; they are required to present it at external border control (i.e. on entering Slovenia) so that an entry stamp is placed in it. Otherwise, their entry into other states is considered illegal.

How is border control carried out at the external border of the Schengen area?  

Control on persons is stepped up at external Schengen borders. Border crossing is allowed only at border crossing points. Sanctions are prescribed for illegal crossing of external borders outside border crossing points and/or operating hours. Control may also be carried out on vehicles and personal belongings of the persons crossing the border.

At big border crossing points and airports, Member States are required to provide for separate lanes for citizens of the EU, the EEA and Switzerland, and for third country nationals if possible.

At the external border, control is carried out in two stages:

• Minimum border checks suffice for the citizens of the EU, EEA (Iceland, Liechtenstein, Norway) and Switzerland and their family members. These checks imply only checking citizens’ identity and validity of documents. These citizens need only a valid passport or an identity card in order to cross the border (depending on the country of destination). Their right to travel can be limited in exceptional cases only due to public order, public security or public health.

• Thorough border checks are carried out for all third country nationals. Police officers check whether these nationals fulfil the entry requirements by means of the Schengen Information System (SIS). The system shows whether there has been an alert issued for the person subjected to a check. Document verification is carried out by a police officer checking the passport or identity card with an optical reader. The device reads the data which are verified automatically both in the national databases and in the SIS. Systematic stamping of the travel documents of third country nationals ensures the verification of the legality and of the duration of their stay in the Schengen area.

In addition to alerts issued for a particular person, police officers check other entry requirements such as the validity of passport and visa (if a visa is required), reasonable purpose of the journey, residence conditions, sufficient means of subsistence and means for returning to the country of origin. A third country national who does not meet these requirements is refused entry to the entire Schengen area.

The common visa policy applies in the entire Schengen area. This means that a person with a visa issued by a Schengen state can also travel to other Schengen states. The Schengen members use a common visa form, a common list of third countries whose nationals need visas, and a harmonised procedure for issuing visas.

Further, Schengen states have harmonized the entry and residence requirements for third country nationals in the Schengen area (with regard to maximum duration of stay in the entire territory of Member States, right to transit, obligation of police registration, obligation to remove aliens if they do not meet residence requirements, penalties for illegal border crossing, in particular for drivers, etc.).

Procedures at internal borders

The basic Schengen principle is absence of checks on persons crossing internal borders between the EU member states (regardless of their status as EU citizens or third country nationals staying legally in the Schengen area). Internal borders can be crossed at any point. But this does not mean that citizens can travel without any documents. Police officers in the EU Member States continue to be authorised to check people’s identity and to exercise their powers in compliance with the national law, including in border areas.  

Local border traffic

The rules regarding border crossing at border crossing points for local traffic between Slovenia and Croatia in line with the Agreement between Slovenia and Croatia on local border traffic and cooperation (SOPS) continue to be in force. There are 22 border crossing points for local traffic along the land border, which is 670 kilometers long. These crossing points are destined for local people living near the border to cross the border by means of documents for local border traffic.

The provisions of the SOPS Agreement continue to be applicable to people living near the border. The Agreement grants these people including owners of land and property on the other side of the border the right to cross the border at border crossing points including at crossing points for local border traffic and other specially designed points outside border crossing points. Administrative units take decisions on eligibility of being issued with documents for local border traffic in compliance with the provisions of the SOPS Agreement, and issue local border traffic passes. Holders of passes who have a legitimate interest to cross the border outside ordinary border crossing points or official operating hours may be issued with a permit by an administrative unit; in addition, place and time of border crossing are entered into their local border traffic pass and agricultural certificate.

Points that the local population and farmers owning cultivated land on the other side of the border used for crossing the border had to be shut, mainly by means of gates. Persons who cross the border with local border traffic passes and agricultural certificates at points that are shut by means of gates need special keys. Administrative units grant such keys to the citizens of the Republic of Slovenia and the Republic of Croatia with permanent residence registered in Slovenia who are entitled to cross the border at shut roads. Police directorates grant keys to the persons who have been issued with documents by Croatian authorities (i.e. persons with permanent residence in Croatia). Reports on missed keys shall be submitted to the police.  

Why will air borders be abolished at a later time?

This is simply a technical issue. As a rule, border control in air traffic is being abolished on the days when flight schedules are changed (in March and October).

The implementation of the Schengen regime at airports imposes a strict separation between the passengers of internal Schengen flights (border control is no longer carried out) and other passengers in international traffic (border control is carried out on crossing of the external Schengen border). Therefore it is necessary to provide for harmonised organisation of flight schedules, parking of aircrafts, transfer of passengers and baggage, etc.    

SCHENGEN INFORMATION SYSTEM

What is the Schengen Information System (SIS)?

The Schengen Information System (SIS) constitues an important part of the Schengen acquis and enables the police, customs administration, administrative units and consular missions of the Signatory States to access data on certain individuals and assets.

The SIS consists of the central system (located in Strasbourg, France) containing all the saved data entered by countries through their own national systems which are also used for searching the joint database. The competent authorities include the police when implementing border control activities and dealing with aliens, diplomatic or consular missions when issuing visa, and administrative units when dealing with aliens. For the purposes of supporting the functioning of this system, all the countries must establish a SIRENE office which functions as an operations and communications centre of the Slovenian police for the Schengen Information System. The office operates non-stop and is the key factor for communication with other Member States; it records alerts, guides the implementation of alerts and provides for the exchange of additional information.

What kinds of data are stored in the Schengen Information System and what is the size of the data?

The categories of data stored in the Schengen Information System include data on:

- persons wanted for arrest for extradition purposes (Article 95 of the Schengen Convention),

- persons, not nationals of a Member State, for whom an alert has been issued for the purposes of refusing entry into the Schengen territory (Article 96 of the Schengen Convention),

- missing persons or persons who need to be placed under temporary police protection, in particular minors (Article 97 of the Schengen Convention),

- witnesses or persons summoned to appear before the judicial authorities in connection with criminal proceedings or those who are to be served with a criminal judgment or a custodial sentence (Article 98 of the Schengen Convention),

- persons under discreet surveillance or specific checks (Article 99 of the Schengen Convention) and

- objects sought for purposes of seizure or use as evidence in criminal proceedings (Article 100 of the Schengen Convention).

If we wish to successfully implement border control activities at the external borders on behalf of all the Member States, we must also have access to data of other countries on persons who are not allowed to enter the Schengen area, who are wanted for arrest or for extradition purposes and who are missing, as well as access to data on stolen vehicles, documents, money, weapons, etc. Data in the system are supplied by all Member States and access to the system must be granted to the police for performing border checks at the external border and the embassies in the process of issuing visas, while in Slovenia access must also be granted to administrative units in the process of issuing permits for aliens, as well as administrative units and organisations authorised for the registration of vehicles.

Who has access and the right to use data in the SIS?

The right to directly use the data stored in the SIS is reserved exclusively to the authorities responsible for:

- border checks, in Slovenia the relevant authority is the Police (Ministry of the Interior),

- other police checks as well as customs and legal checks carried out within the country, and the co-ordination of such checks, which gives the Customs Administration and the Police the right to use such data.

The right to access the categories of data stated in the Article 96 of the Schengen Convention is also granted to:

- authorities responsible for issuing visas (Slovenian diplomatic or consular missions abroad),

- central authorities responsible for examining visa applications (Ministry of Foreign Affairs of the Republic of Slovenia), and

- authorities responsible for issuing residence permits and implementing legislation on aliens (Ministry of the Interior of the Republic of Slovenia, Administrative Units).

The right to access data on stolen vehicles is also granted to:

services competent for the registration of vehicles (Ministry of the Interior of the Republic of Slovenia, Administrative Units, authorised organisations).

Which language is used in the SIS and which language do the employees of various countries use to communicate with each other when working with this system?

The central Schengen Information System is not bound to national languages since the actual language used is a coded language (each category of data has its own code). The interface "translates" this language into national languages, so that access to national languages is carried out through interfaces. Police officers enter the information system by using national solutions.

Do citizens have the right to have access to data?

The right to access or consult one's own personal data is an option that must be made available to anyone if he or she wishes to check what kind of data on him or her are stored in a certain database. This is a fundamental principle of personal data protection which enables individuals to exercise control over personal data on them kept by third parties.

Under Article 109 of the Schengen Convention, anyone has the right to have access to personal data entered in the SIS relating to him or her.

Anyone exercising the right to access and consult their own personal data in the SIS may apply to the competent authorities in the Schengen country of choice, since all national SIS databases are identical to the central database in Strasbourg. The right to access therefore pertains to identical data regardless of the state to which the request is addressed. The procedure is exercised in accordance with the national law of the addressed state; therefore there are some small differences in the procedure between individual countries. The process of exercising this right in Slovenia is regulated in accordance with the Slovenian legislation in the Personal Data Protection Act (Articles 30 and 31) and the Information Commissioner Act.

How safe is the SIS?

The foundation of the Schengen Information System is a private line, which is a private conductor of the flow of encoded information. These are highly protected lines. Databases are secured and each country has a national copy. The central unit is situated in Strasbourg and contains a European replica of all databases from national systems. Control is carried out at the central, European level.