Iceland, Schengen and the EEA.

Seminar on the EEA, Schengen and Justice and Home Affairs Cooperation Justice and Home Affairs – integration into the EEA Agreement? Gullhamrar, Reykjavík, 8 September 2006.





In the work of the Committee on Europe, which the Prime Minister appointed with the main purpose of examining cooperation between Iceland and the European Union under the EEA Agreement, it has become increasingly clear that another forum of cooperation with the EU is no less important to us.  I am, of course, referring to collaboration under the Schengen Agreement.


The closer we examined the matter and the more we got to know about what was happening in the Schengen area, the more we realised how important these developments are, not only for the citizens of the Schengen states, but also for cooperation between them, and this in many more spheres than abolishing passport requirements for travel between them.


We went to Brussels to discuss EU and EEA affairs with leading officials in the EU and EFTA.  After these meetings, and conversations with people who dealt with cooperation in the Schengen Area, we had a better understanding of the difference between how the EEA Agreement is put into practice with support from EFTA, on the one hand, and on the other how the Schengen states that are not in the EU are much more on their own when it comes to implementing the Schengen Agreement without support from EFTA.


We also came to realise how cooperation under the Schengen scheme, and in home and justice affairs within the EU, has led to cooperation within institutions such as EUROPOL, EUROJUST and FRONTEX, which is also open to states outside the EU.  Iceland has made special agreements with these institutions, and the Committee on Europe has been to The Hague to visit the headquarters of EUROPOL and EUROJUST.  Iceland has also joined CEPOL, a forum for collaboration between European police academies.


We realised that the legal basis of the Schengen scheme, and its administrative structure, were extremely complicated. As a result of all this, the Committee set about deciding the best way of discussing the continuation of this cooperative work. 


As we have witnessed here at this seminar today, the Committee has, in collaboration with Bifröst University, managed to call together a group of speakers who have thrown light on the development of cooperation in this area and what we can expect of it in the future. 


As Chairman of the Committee on Europe, I should like to thank all those who have made such a substantial contribution towards our deliberations.  It is invaluable for us who have been here, and for the future work of the Committee, to have had this opportunity to hear the various points of view that have been put forward.


In my capacity as Minister of Justice for nearly four years, it has fallen to me to attend many meetings of the Mixed Committee, and even to chair some of them.  I will be the first to admit that it took me some time to understand the peculiar nature of cooperation in this forum.  In fact, the impression I had after my first meeting, in summer 2003 in Luxembourg, was that there was no point in even trying to understand what went on there. 


If I remember rightly, I spent less than ten minutes in the meeting room, having waited far longer in the corridor outside it while the ministers of the EU states discussed matters  not relevant for the Mixed Committee.  I wondered if it was worth spending two or even three days visiting Luxembourg or Brussels just to be present at a meeting for a few minutes without having the least understanding of what went on there.


My attitude has changed over the years, and I now realise that here, as in other places where representatives of different countries come together, they are all able to have an influence and put their views across if they consider them important.


When Iceland joined the Schengen scheme, the question arose whether this arrangement was compatible with the Icelandic Constitution.  Three professors of Law compiled a statement on the compatibility of the draft membership agreement with the Constitution.  Later, when the text of the agreement was finalised, and before a motion was submitted to the Althingi proposing that it be ratified, they compiled another statement.


One of these three professors was Davíð Þór Björgvinsson, who is now a judge at the European Court of Human Rights in Strassbourg.  I should like to quote from what he has written regarding that statement. 


“The debates about the constitutionality of the EEA Agreement, and the conclusions to which they led, and also, to some extent, the debates about the Schengen Agreement, show that the view adopted in Icelandic judicial practice is that the legislature can assign state power to supra-national institutions, even though no provision in the Constitution specifically allows for this.  Thus, even though authority in individual areas, which are aspects of sovereignty, can be assigned to supra-national institutions, this is not viewed as an assignment of sovereignty, and far less as a surrender of the right to sovereignty.  Partly for this reason, it is more to the point, in a legal discussion, to consider this matter from the point of view of the possible authorisations for entrusting supra-national institutions with the exercise of individual aspects of power which would otherwise be exercised by the state, rather than to make the concept of sovereignty the focal point of the discussion.”[1]


This pragmatic approach in legal interpretation regarding Iceland’s cooperation with the European Union has become dominant in the treatment of these matters by the Althingi, though more literal legal interpretations have also been presented for consideration there.  When it comes to interpreting provisions of the Constitution in this context, it is important to have different points of view presented to the legislature and debated there.  This way of doing things is more in line with the tripartite structure of the state than is the growing tendency of the courts, and not least the international courts, to assume a sort of legislative role in their interpretation of international agreements.


In cooperation under the Schengen scheme, it is necessary to decide which individual topics come under the scheme and which do not.  The Legal Service of the EU Council of Ministers gives important guidance in this area.  Generally speaking, the council’s legal advisors seem to favour a narrow interpretation, especially as regards police cooperation.  They tend rather to say that matters lie outside the scope of Schengen cooperation than inside it, and therefore that it lies within the power of the EU states to negotiate agreements in these areas without consulting the other Schengen states, even if the outcome may have an indirect, or even a direct, effect on their cooperation.  They seem on the other hand to be in favour of a broader interpretation regarding the monitoring of borders, this being based on the general principle that all measures taken to ensure free movement across the internal borders of the Schengen states are, by their nature, Schengen issues.


This approach by the Legal Service sometimes results in uncertainty, and even in tension, particularly when the service sees matters as falling outside the scope of cooperation under the Schengen scheme, while non-EU Schengen states take the opposite view.  On the other hand, it is also possible to see this as a sort of buttress to the sovereignty of the non-EU states in Schengen : the EU’s Legal Service does not try to foist anything onto them in the light of their membership of Schengen unless it is clearly an aspect of the cooperative scheme.


It has been noticeable that Switzerland, in its participation in the Schengen scheme, has also tended to apply a narrow interpretation on what belongs within the scheme.  Consequently, Switzerland has approached some matters in a different way from Iceland and Norway, and sometimes in a different way from the EU Council of Ministers’ Legal Service.  Until Switzerland joined the Schengen Agreement, the non-EU members tended to adopt a common position.


In the EEA, the EFTA countries are speaking with one voice when discussing with the EU – the same is not the case under the Schengen scheme. I remember one recent case when Iceland and Switzerland approached the Union under the scheme but Norway decided to remain silent. The case also illustrates that the Mixed Committee refers to more than ministers of justice and home affairs.


There was a great deal of discussion at the ministerial meeting of the Mixed Committee on 21 February 2006 about an increase in the fees to be charged for visas to enter the Schengen Area after these visas include biometric data.  The ministers of the new EU member states criticised a proposal by France to raise these fees.  The meeting agreed to refer the matter to the EU’s General Affairs and External Relations Council.


The way this matter was handled raised the question among the members of the Icelandic delegation whether the Schengen Agreement assumes that representatives of the non-EU Schengen states will have the right to attend all meetings that deal with Schengen issues; in other words, that the Mixed Committee is not restricted to participation by ministers of justice or home affairs.[2]  The Icelandic delegation approached the Norwegians and the Swiss and asked whether they would support it in proposing to the EU Council that they be admitted to the meeting of the General Affairs and External Relations Council.  The Swiss were positive about collaborating on this. 


At a meeting with an official of the EU’s Council, they were told that this was an exceptional case which did not in any way affect the general principle that Schengen issues could only be resolved by the ministers of justice and home affairs.  The only reason why this matter was being taken up at a meeting of the General Affairs Council was that Hungary had demanded this on the basis of a formal authorisation, hoping thereby to gain time on the issue.  The matter would not be taken out of the hands of the ministers of justice and home affairs, and that the Mixed Committee would be informed in detail of the proceedings of the General Affairs Council, which would not take any final decision on the matter.


I mention this here to underline further the special nature of cooperation under the Schengen scheme and the rights that the non-EU member states have.  They can request access to all ministerial meetings that address Schengen issues, even though they do not participate in final decisions on these issues, which is the prerogative of ministers of the EU states.


From this perspective, it has no direct implications for Iceland whether a Schengen- relevant issue is placed under the 1st or the 3rd pillar.  Surveillance of the correct application of the Schengen rules within the EU falls under an EU institution, either the Commission or the European Court of Justice. EU institutions have no jurisdiction regarding the application of EU rules in the non-EU countries. This is the responsibility of the national governments and the courts.   In the event of a different application or interpretation, this is discussed in the Mixed Committee.


As the legal evolution of Schengen, on the one hand, and the EEA, on the other, is based on decisions within the EU, it might be argued that by merging the Schengen Agreement and the EEA Agreement, one could create a more transparent and comprehensive legal framework for relations between Iceland and the EU. 


But things are not quite so simple.


Not all the EU states share the same position on cooperation under the Schengen scheme, but they are all fully-committed members of the EEA Agreement.  Iceland, Norway and Liechtenstein are members of the EEA; Switzerland is not, but it stands with them as a member of the Schengen Area.  These different membership ties result in a very complicated situation.

The EEA Agreement is centred on trade; the Schengen scheme is becoming increasingly centred on cooperation on border control and policing, while at the same time opening up the internal borders between the member states.  These two areas of focus are so different that bringing them under the same cooperative structure would not make them easier to administer. 


The cooperative mechanisms in the Schengen scheme and the EEA are completely different.


Independent and common EEA institutions without any supra-national powers decide by unanimous consensus which rules apply within the EEA. The regulations forming the Schengen acquis are adopted by the EU Council. The non-EU Schengen states are not required to speak with one voice within the Schengen scheme, whereas the EFTA states in the EEA are obliged to do so under the EEA Agreement. 

Non-EU Schengen states enjoy broader participation in the decision-shaping process in the EU than the non-EU states of the EEA by participating both in the Commission’s expert- and comitology committees and the Council working groups and committees at all levels. 

Under the EEA Agreement, rules adopted by the EU can be adapted for the purposes of the EEA. This is not an option under the Schengen scheme.

Under the EEA Agreement, the application of the EEA rules in the national legal order is under the surveillance of the EFTA Surveillance Authority and disputes are settled by the EFTA Court. Under the Schengen scheme, the application of the Schengen rules is not subject to the surveillance of any international body, though the Mixed Committee can discuss it.


Ladies and gentlemen.


Overall, my position is that there is no reason to set our sights on creating a common framework for cooperation within the EEA and the Schengen Area. Rather, I believe we should take care to ensure that cooperation in the areas covered by each of these structures takes place within the boundaries that have been agreed.  If we consider there is a need to amend either agreement, then we should do so, but without connecting them in any way.


When we look over the history of the Schengen scheme during the past ten years and more, since Norway and Iceland were invited to join it, we see that the European Union has developed on its own premises without any weakening of Norway and Iceland’s membership of Schengen, and Switzerland and Liechtenstein have since joined the scheme.


It is a great advantage for small states to be able to rely on the knowledge and assistance of the EFTA staff when it comes to the implementation of the EEA Agreement.  For Iceland, it is no less important to be able to benefit from the expertise and extensive experience of the staff of the EU’s Council of Ministers who deal with issues relating to the Schengen states.  Iceland has good experience of working with the staff of the Council of Ministers and the Commission in connection with the Schengen scheme, and it is with pleasure that I thank them for their help and cooperation.  This seminar here today is one of the fruits of this.


As a result of the decision by the US Government to withdraw its forces from Iceland this month, the Icelandic Government has had to consider the country’s national security in the light of completely new circumstances.  In discussions on this, I have pointed out that there is now greater international cooperation on policing because of the constantly growing danger of organised international crime and terrorism.  To a substantial extent, cooperation under the Schengen scheme now takes the form of cooperation on security, involving the police, border police and customs officers. 


Finally, the Committee on Europe wanted to call this seminar to study the  Schengen cooperation and its evolution. I should like once again to thank all those who have made their contributions today towards increasing our understanding of the nature of cooperation under the scheme.  I should also like to thank Bifröst University for its participation.  I hope that the information we have shared today will be of benefit not only to those of us who are involved in the practical and legal side of things, but also to those whose interest is more academic.


[1] Davíð Þór Björgvinsson: Lögfræðileg álitsgerð vegna breytinga á samkeppnislögum vegna reglugerðar ráðs (EB) nr. 1/2003/EB, haustið 2004, bls. 34 (fylgiskjal með frumvarpi http://www.althingi.is/dba-bin/unds.pl?txti=/wwwtext/html/131/s/0921.html&leito=Schengen#word1).

[2] The second paragraph of Article 4 of the Brussels Agreement of 1999 mentions the “ministerial forum in the Mixed Committee”, but does not state that it is open only to specific ministers.