Essay on Efficiency of Legal Norms – Schengen Agreement

Gasmi, Gordana and Prlja, Dragan and Lutovac, Nataša (2016) Essay on Efficiency of Legal Norms – Schengen Agreement. Fiat Iustitita (1). pp. 74-89. ISSN 1224-4015

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Abstract

The capacity of the European Union (EU) to address the urgent migrant crisis is proved to be inadequate. The efficiency of the Schengen Agreement is hit by dramatic reality of migrant crisis that tends to escalate into humanitarian catastrophe. At the beginning of the XXI century, the EU has been hit by several successive crises. Those are the world financial crisis of 2007, whose source was the US financial market, the debt crisis of Greece, which lasts from 2008 and which has escalated in the summer of 2015, and in particular the case of the refugees’ crisis. The mentioned events have shown that incomplete sovereignty of the EU, caused by a slowdown in building a European federal state prevents it from having adequate responses to emergencies. Because of its inter-governmental and confederal features, the EU cannot act in a fast, unified and adequate way in migrant crisis, as well as in other challenges in a globalized world. More and more there are rumors and calls for the formal, i.e. the official abolition of the Schengen Agreement, which is a legal symbol of the space without borders among Member States, and in a situation of raising concrete and wire fences at border crossings between these same countries and in the midst of their mutual accusations of a lack of solidarity in the management of refugees. The abolition of Schengen in late 2015 happened in a factual manner (de facto), which is non- institutional way and without formal decisions at the level of the Union. The situation is even more sharpened when one takes into account the negative safety dimensions of the migrant crisis. The EU Member States by refusing solidarity announce that they do not want security problems on own territory, which the influx of refugees inevitably brings. The exchange of safety-relevant data, takes place via the Schengen Information System (SIS), would once again have to be bilaterally regulated in the future, in case of the official cancellation of the Schengen Agreement. Without the SIS, automatic entries and requests across all Member States would no longer be possible. Coordinated efforts to combat people smuggling and drug-related crime, as well as organised crime and international terrorism, would become more difficult. Judicial cooperation between countries would also be adversely affected by a suspension of the Schengen Agreement. Two decisions of the EU (2015), on an equitable distribution of asylum seekers to other Member States, in order to lessen the pressure on Italy, Greece and Hungary meant a temporary suspension of the Dublin asylum system. Dublin asylum system is the most criticized by A. Merkel, the German Chancellor, and also by other EU officials, because it allows the greatest pressure on countries that are on the front line of migrant flows. In her expose, Merkel, with a warning that such asylum system is outdated, called for the introduction of a new common EU asylum system based on a fair distribution of the burden of granting asylum and with the elimination of national egoism. Is it the "Europe - Fortress" underway or the Schengen Europe without borders, remains to be seen through the outcome of the migrant crisis in the upcoming mid-term.he implementation of a pan-European coordination of refugee and migration flows is de facto and de jure barely possible without the Schengen Agreement. The termination of the Schengen Agreement, if happens, would be a unique event in the history of post-war Europe. For the first time in the European integration process, a central pillar of the European integration process would disappear without being replaced. It would not put a temporary halt to the unification process as would have been the case in the past, but it would be a noticeable regression. Famous Jean Monnet, however, said a long time ago, that the great crisis are also great unifiers, and it remains to be seen whether this visionary idea is to be leading in overcoming the current narrow-minded EU approach.

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