Conclusions

Schengen is a success story with an unconventional birth. The price that had to be paid for ending a first “sin” (intergovernmental cooperation), was to commit another “sin”, namely authorising, from 1999 onwards, a number of Members States (UK, Ireland, Denmark) and Schengen associated third countries (Iceland, Norway and later Switzerland and Liechtenstein) to participate (or not to participate) in Schengen related legal acts in accordance with their respective, legally complex, Protocols or Association agreements. This so called “variable geometry” arrangement resulted in high legal complexity as illustrated by the need to draft two or sometimes three parallel proposals addressing different legal “audiences” to cover one and the same policy field; by the need to conclude parallel agreements to ensure Danish, Norwegian, Swiss, Icelandic and Liechtenstein participation in policy fields which were previously labelled as Schengen-related but are not considered Schengen related any more today (e.g. the Dublin rules); and by uncertainty on the continued applicability of provisions of the Convention Implementing the Schengen Agreement in the field of police and judicial cooperation, resulting from the splitting of this policy field into Schengen related and non-Schengen-related parts. The withdrawal of the United Kingdom from the EU already reduced—looked at from a “variable geometry” angle—the existing complexity, since it reduced the number of Member States benefitting from a la carte participation in the field of Justice and Home Affairs and Schengen. Legal complexity could be further reduced by adjusting the scope of Schengen law or by entirely merging the worlds of Schengen law and normal EU law. The conclusions discuss the differing available options and their pros and cons, looking at the effect it may have on each of the most involved States and the EU as a whole.