Schengen’s dual paradigm: market freedoms and a Citizens’ Europe

On 14 June 1985, high level officials from Germany, France, and the Benelux countries gathered onboard the riverboat Princesse Marie-Astrid, sailing along the Moselle River towards Schengen. The riverboat stopped the tripoint where the German, Luxembourgish, and French borders touch and the officials signed the Schengen Agreement. Robert Goebbels, the Luxembourgish representative, explained the aspirations of the treatymakers:

Even though the Schengen Agreement was concluded as a treaty under international law, outside the framework of Community law, government officials considered the Schengen Agreement as a ‘laboratory for the free movement of persons’,Footnote ⁹ as a blueprint for the development of free movement under Community law. Yet, if Schengen was considered as laboratory, as Stanley-Becker astutely asks, what sort of laboratory was it?

One, still widely held, view in the literature on Schengen is that the abolition of internal border controls was functional to the establishment of the internal market and unimpeded free movement across borders for economic purposes.Footnote ¹⁰ Schengen, in this view, served as a laboratory for fully realising the internal market freedoms. This view, however, is incomplete as it lacks a thicker contextualisation in preceding political and legal developments. Rather, as Stanley-Becker argues, the creation of Schengen was underpinned by two different but related paradigms: a market paradigm which aimed at advancing the internal market; and a political paradigm which pursued the making of European citizens.Footnote ¹¹ Each of these paradigms involves different rationales.Footnote ¹²

In the market paradigm, the rationale for abolishing border controls derives from economic necessities. The Commission’s 1985 White Paper on Completing the Internal Market includes the perhaps clearest expression of the market paradigm’s economic rationale. In the market paradigm, border controls are conceived as inefficient means of controlling substantive policy domains, such as public health, veterinary inspections, VAT collection, and transport safety, which are more efficiently governed through harmonisation and administrative cooperation.Footnote ¹³ In the economic idiom of the market paradigm, border controls feature as economic figures and are calculated as direct and indirect costs.Footnote ¹⁴ The need, then, to abolish border controls derives from structural changes in the global economy and the necessity to maintain economic competitiveness by reducing costs. In the political paradigm, the rationale for abolishing border controls is an end in itself – and not functional to the realisation of market freedoms. As borders are constitutive of a political community,Footnote ¹⁵ the abolition of internal borders and their projection to the common external borders seeks to redraw the very boundaries of political community – from national political communities separated by national communities to a European political community.

The Schengen Agreement incorporated both rationales. The Preamble of the Schengen Agreement states that it aims to ‘remove obstacles to free movement at the common borders’ and ‘facilitate the movement of goods and services’.Footnote ¹⁶ At the same time, the drafters of the Schengen Agreement traced their work to the Fontainebleau European Council in 1984 which envisaged ‘to establish on the pillars of the common market a Citizens’ Europe’.Footnote ¹⁷ The Conclusions of the Presidency at the Fontainebleau European Council emphasised the importance of adopting measures to strengthen and promote the identity of European citizens, enumerating a number of measures that would bind European citizens closer to each other, such as an anthem, a flag, and the abolition of police and customs formalities at the common borders of member states.Footnote ¹⁸ The idea of a Citizens’ Europe did not emerge in Fontainebleau, but had been developing for years. The notion of Citizens’ Europe was first coined by Leo Tindemans, a former Belgian prime minister, who proposed in his 1975 report on the European Union the establishment of a passport union enabling free movement of European citizens. Tindemans’ was convinced that this would foster a common experience of European life that ultimately would bind citizens closer together.Footnote ¹⁹ Subsequent initiatives – the Commission’s proposal for a passport Union, the European Council’s plans on creating a uniform travel document, and Altiero Spinelli’s Draft Treaty on the European Union which included the establishment of European citizenship, inter alia – developed Tindemans idea to strengthen supranational identity through facilitating free movement.

Stanley-Becker considers the aspiration of creating a Citizens’ Europe as reflection of Enlightenment ideas of cosmopolitan community and its revived versions of a Pan-European unity that emerged after the First World War (for example, Richard Coudenhove-Kalergi’s vision of a Pan-Europa and Aristide Briand’s ideas of a federation of European states).Footnote ²⁰ However, these plans for a supranational political body ran aground after the Second World War and the Treaty of Rome institutionalised an economic alliance between member states, which conceived free movement in a market logic as the removal of economic obstacles. Yet, Stanley-Becker argues that the Treaty of Rome’s political aspiration, reflected in its Preamble to establish a closer union among European peoples, ‘became a lodestar of more humanist notions of intergovernmental cooperation’.Footnote ²¹ While several initiatives to establish a peoples Europe in the 1970s failed, ideas of advancing European unity through expanding free movement for non-economic reasons gained currency through a Franco-German initiative in the early 1980s. French President Francois Mitterand, who held the presidency of the European Council in Fontainebleau, and West German Chancellor Helmut Kohl, pushed the idea of a Citizens’ Europe. On the one hand, Mitterand’s and Kohl’s proposals to advance European political unity was the result of domestic political concerns: Mitterand considered European unity as an antipode to the rise of the far-right Front National in France, while Kohl considered European unity and free movement as an ideological counterprogram to Communist restrictions of free movement, especially the restrictions imposed by the German Democratic Republic on its citizens to leave the country. However, Stanley-Becker emphasises that it was not only domestic political concerns, but also personal convictions, held by Mitterand and Kohl, that reflected ideas of a ‘European cosmopolitanism’.Footnote ²²

The Conclusions of the European Council in Fontainebleau recommended the setting up of an ad hoc Committee on a People’s Europe to further study measures that would develop these cosmopolitan ideas on free movement into concrete rules and procedures. Stanley-Becker argues that the ad hoc Committee understood its mandate explicitly in political and not merely technocratic terms.Footnote ²³ The ad hoc Committee’s final report in June 1985 included a broad understanding of free movement. It proposed the easing of border checks by introducing green car stickers that would enable citizens to cross internal borders without checks; it also suggested the introduction of a right of residence for non-economically active European citizens. Even though subsequent European Councils summarily endorsed the report by the ad hoc Committee, the summary approval masked underlying political tensions between member states, especially on the removal of internal border controls. Political gridlock between member states eventually paved the way for the adoption of the Schengen Agreement outside Community law.

If the treatymakers of the Schengen Agreement sought to create a ‘cosmopolitan European community’ by untethering free movement from its purely economic rationale, as Stanley-Becker argues, what is the specific link between the creation of a ‘cosmopolitan European territory’ and the establishment of a political community? How does, in the eyes of the Treaty makers, the creation of a common space translate into a common political identity? Although Stanley-Becker remarks that the abolition of borders sought to change citizens’ ‘everyday experience of free movement’,Footnote ²⁴ the link between the construction of a common space and European citizenship remains underexplored. I suggest that the removal of border controls aimed to transform citizens’ spatial experience by removing the visible boundaries of the state. For instance, the White Paper on Completing the Internal Market, which drew on the work of the ad hoc Committee on a People’s Europe, stated that:

Taking that wording seriously means that the removal of border controls aimed at changing the way citizens would see, literally, the European Community. This is what I call the epistemic aspect of borders. Edmund Husserl reminds us that spatial experience is one of the constituents of human cognition.Footnote ²⁶ At the same time, experienced space has a concrete material dimension. The materiality of border posts, barriers and tollhouses are not merely material objects, but also concepts that have specific meanings: they signify the limits of the political realm and the operation of the law. The transformation of materiality thus restructures the meaning of political concepts through everyday lived experiences and changes the way citizens would experience and relate to the European Community in the longue durée. This, I submit, was the radical vision in the Schengen project.Footnote ²⁷

Who constructed Schengen?

Schengen is often presented as the outcome of a linear process whose actors were visionary and brave diplomats and politicians.Footnote ²⁸ Stanley-Becker challenges this narrative by highlighting the role of citizens and migrants in the construction of Schengen,Footnote ²⁹ which reflects a broader turn in the recent literature on EU law emphasising the role of ‘Euro-lawyers’ and citizens in mobilising the law to further European integration.Footnote ³⁰ Shifting the focus from politicians and government officials to the actions of citizens and migrants advances a new narrative on the construction of Schengen and illuminates how the mobilisation of the law by citizens and migrants can have a profound impact on legal arrangements and institutional change. Throughout the book, Stanley-Becker emphasises three different actors that had a profound impact on the development of Schengen.

A crucial impetus for the removal of border controls came from an unlikely group: truck drivers. For one week in February 1984 long-distance truck drivers blocked highways and border crossings from Paris to the Austrian alps, halting the movement of people and goods across Europe. The truck drivers’ protests were directed against long delays at border crossings, sometimes up to 20 hours, and the ‘dillydallying of customs officers’.Footnote ³¹ As an article in the German magazine Der Spiegel aptly described, the truck drivers’ protests tapped into a broader public sentiment of the unfulfilled promises of European integration: the border blockages reflect the ‘state of Europe 26 years after the foundation of the European Community. Because the chaos has been triggered by a group that, according to the intention of the EC founding fathers, should have ceased to exist: custom officers.’Footnote ³² The truck drivers’ protests created public pressure for policymakers to quickly advance plans on removing border controls and they eventually resulted in the conclusion of the Saarbrücken agreement between France and Germany in July 1984, which eased border checks between these two countries, and served as blueprint for the Schengen Agreement in 1985.Footnote ³³ Looking at these protests – truck drivers essentially demanding the abolition of border checks – from today’s perspective, they seem like a different political universe. A number of specific historical conditions facilitated the success of the truck drivers’ protests. First, the magnitude of the protests was enormous. As Stanley-Becker recalls, the protests took place from the English Channel to the Austrian alps: they were ‘a siege that extended for many miles, on roads covered with ice and snow’.Footnote ³⁴ Second, the protests were taken up widely by media. Newspapers from New York to Mumbai reported about the protests and, importantly, the reporting about the protests was largely sympathetic to the demands of the truck drivers. Third, truck drivers’ demands were supported by powerful political figures at the national and European level, such as the powerful conservative Bavarian minister-president Franz Josef StraussFootnote ³⁵ and the Kangaroo group, a pro-trade faction in the European Parliament.Footnote ³⁶

The second actor that shaped the development of Schengen, as Stanley-Becker argues, were individuals litigating before the Court of Justice. Stanley-Becker focuses on the case of Gravier v City of Liège,Footnote ³⁷ which unfolded during the negotiations of the Schengen Agreement, and provides a thick reading of that case, based inter alia on interviews with the plaintiff. The case concerned Françoise Gravier, a French national who studied cartoon art at a Belgian university. Under Belgian law, non-Belgian nationals were required to pay a tuition fee, which Ms Gravier could not afford. Gravier v City of Liège was a textbook example of Euro-lawyers using EU law strategically to advance European integration through court-driven change. When Ms Gravier searched for a lawyer, contacts in the Belgian labour movement connected her to a lawyer who was seeking a test case to challenge discriminatory rules before the Court of Justice.Footnote ³⁸ In its judgment, the Court of Justice held that because art studies constitute a form of vocational training, Ms Gravier would be protected under the free movement of workers rules and the Belgian enrolment fee constituted a prohibited direct discrimination on grounds of nationality.Footnote ³⁹ Stanley-Becker emphasises the ambivalent effects of the Gravier decision. While, on the one hand, Gravier expanded the scope of free movement to students, the decision would have also, as Stanley-Becker argues, ‘laid bare the limits of Community authority’ to regulate free movement of persons unconnected to economic activity.Footnote ⁴⁰ The Court, in Stanley-Becker’s opinion, remained stuck in the market paradigm of free movement: because the Treaty of Rome framed free movement only in economic terms, the Court conceived free movement exclusively in the market paradigm. The Court’s conception of free movement in strictly economic terms in Gravier presented, as Stanley-Becker argues, ‘a problem for the realization of Citizens’ Europe’Footnote ⁴¹ and the realisation of free movement outside the market sphere. The realisation of free movement uncoupled from economic considerations would have thus required a Treaty change – something that especially the UK government strictly opposed. In combination with the UK government’s opposition, the Gravier decision was thus, as Stanley-Becker points out, an important factor that provided the impetus to advance Schengen outside the Community legal framework.

Another case that played an important role in the construction of Schengen is the Wijsenbeek decision by the Court of Justice,Footnote ⁴² a case that is not discussed by Stanley-Becker. While Gravier concerned the unintended effects of strategic litigation on the construction of Schengen, Wijsenbeek was an attempt to judicially enforce the abolition of border controls through strategic litigation before the Court of Justice. The facts of the case concern Mr Wijsenbeek, a lawyer and liberal member of the European Parliament, who challenged Dutch border controls by refusing to show his passport upon entering the Netherlands. Mr Wijsenbeek argued that Article 8a of the European Economic Community Treaty (Maastricht), which envisaged the right to free movement of European citizens, required member states to abolish border controls. The Court of Justice saw the matter differently. It held that Article 8a did not have direct effect and that the removal of border controls presupposed the adoption of compensatory measures on asylum, visa, and immigration, as envisaged by the Schengen Implementing Convention.Footnote ⁴³ The common reading of the Wijsenbeek case is that the Court of Justice did not accord direct effect to EU citizens’ right to free movement. In this view, the litigation was unsuccessful as it did not result in advancing citizens’ free movement rights. Limiting the effects of the Wijsenbeek decision to the immediate legal outcomes, however, misses the more nuanced and fine-grained arguments that opened the space for future legal discussions. I suggest that the importance of Wijsenbeek lays in argumentatively connecting free movement rights in the market sphere to free movement rights in the political sphere and thus creating a dogmatic link between Maastricht’s – intergovernmental– third pillar on justice and home affairs and its –supranational – Community pillar.Footnote ⁴⁴ The inclusion of the Wijsenbeek case would have certainly a26ed to Stanley-Becker’s otherwise insightful analysis of the role of legal mobilisation in the construction of Schengen.

Stanley-Becker reminds us of a third, and often overlooked, actor that played an important role in the construction of Schengen: asylum seekers and unauthorised migrants. To illustrate the role of unauthorised migrants in the construction of Schengen, Stanley-Becker focuses on the protests of sans-papiers that took place in Paris in 1996. In June 1996, a group of sans-papiers occupied several churches in Paris, supported by the priests and parishes. After migrants were expelled by force from the churches, protests swept to the streets. One year before the Paris protests, the Schengen Implementing Convention had entered into force on 26 March 1995 and internal border controls were finally lifted. The Schengen Implementing Convention included, inter alia, rules that limited the right to asylum of third country nationals by allocating responsibility for the examination of an asylum application to a single member state. Moreover, the Schengen Implementing Convention had resulted in the adoption of restrictive legislation on asylum and i02igration that aimed to offset the alleged security deficits that would result from the abolition of border controls. In France, the so-called Pasqua laws were adopted, named after the Gaullist minister of interior Charles Pasqua, who pursued a restrictive immigration policy, that restricted asylum seekers’ possibilities to apply for asylum, if they had entered France through another European country.Footnote ⁴⁵ As Stanley-Becker points out, the objective of the protests of the sans-papiers was not only to challenge the Pasqua laws, but also the rules of the Schengen system: ‘Schengen was its terrain’.Footnote ⁴⁶ The protests questioned the (still prevalent) official script of Schengen as a liberal project by showing its exclusionary dimension. Moreover, the protests drew broad social mobilisation in France, including trade unions, priests, doctors, civil liberty groups, theatre directors, and academics such as Jacques Derrida, Paul Ricoeur, and Didier Fassin. Social mobilisation was not limited to France. Stanley-Becker shows that the Paris protests resulted in the formation of transnational networks challenging restrictive migration laws and leveraging cultural capital, inter alia, with exhibitions at the German art exhibition Documenta X and the production of films.Footnote ⁴⁷ Although the protests did not result in any changes to existing immigration laws, they became, as Stanley-Becker states, ‘jurisgenerative outside the formal space of courtrooms’, recasting common understandings of the right to free movement.Footnote ⁴⁸ Yet, the reader wonders whether these protests were indeed, as claimed by Stanley-Becker, jurisgenerative. If jurisgeneration describes a process in which the meaning of legal principles – here: the right to free movement – is reshaped in iterative processes of interpretation by different actors in society,Footnote ⁴⁹ these processes must ultimately be tied back to interpretation in the court room. Certainly, courts are not the only actors that engage in legal hermeneutics. But the crucial difference from other actors is that courts have the final word in the interpretation of the law. This means that legal meaning is only changed authoritatively when linked to legal interpretation in the courtroom. This did not happen with the sans-papiers movement in Paris. Although the sans-papiers movement resulted in proceedings before French courts and eventually reached the European Court of Human Rights, none of these cases concerned the interpretation of the right to free movement.Footnote ⁵⁰ From a legal perspective, the absence of free movement in the case before the European Court of Human Rights is not surprising. The European Convention on Human Rights does not include a right to free movement; hence a legal claim cannot be based on such a right, because it does not exist in the Convention. The absence of such a right illustrates the limitations of translating valid justice claims into formal legal claims – and therefore the limits of authoritatively transforming legal meaning through jurisgenerative processes.

While Stanley-Becker’s specific argument on the jurisgenerative transformation of the meaning of free movement may be unconvincing, his broader methodological move to study the potential of asylum seekers’ and unauthorised migrants’ agency to impact the construction of Schengen is highly incisive for the analysis of the current Schengen crisis. First, Stanley-Becker’s analysis shows the historical continuities of conflicts over the mobility of asylum seekers that underlie Schengen – conflicts that are inherent to the legal structure of Schengen and regularly result in crises in the Schengen system,Footnote ⁵¹ including the current Schengen crisis.Footnote ⁵² Second, Stanley-Becker’s methodological focus on the political agency of asylum seekers points to the dynamic between exercising political agency by and the transformation of legal rules. Existing rules in the Asylum and Migration Management Regulation – the successor of the Dublin III Regulation on the allocation of responsibility for examining an asylum application – barely take into account asylum seekers’ cultural (language, education) and social ties (relatives residing in other member states) that inform their choices of destination country.Footnote ⁵³ Asylum seekers react to these restrictive rules by moving to another member state and evading (forced) transfer procedures. Member States, in turn, react to these movements by reintroducing border controls with the aim of curbing asylum seekers’ movements. If maintained over a longer period of time, these controls transform the legal reality from an area without internal frontiers into an area with quasi-permanent border controls. The implication of Stanley-Becker’s analysis is that free movement of EU citizens and the mobility of asylum seekers in the Schengen area mutually impact each other and cannot be considered in isolation from each other. Extending the scope of free movement rules to asylum seekers was indeed, as the next section discusses, one of the proposed options in the early days of Schengen.

Schengen’s dark side

The entry of undesired third country nationals, especially asylum seekers, was at the core of the negotiations at the Schengen Implementing Convention to abolish border controls. Treatymakers were convinced that the complete removal of internal borders would require the adoption of a set of complementary measures flanking the abolition of border controls. Already the Schengen Agreement envisaged a few complementary measures, such as police cooperation and exchange of information to combat crime.Footnote ⁵⁴ These were, however, deemed insufficient by the treatymakers. By 1988 the working group on persons on the Schengen Implementing Convention had drawn up a broader list of ‘indispensable conditions’ that were considered necessary to abolish border controls.Footnote ⁵⁵ Chief among these measures were the harmonisation of national laws on asylum, visa, and irregular migration. On its face, the harmonisation of national laws does not require any particular substantive choice – rules could be more or less restrictive – but only the adoption of common rules. Stanley-Becker, however, shows how a number of factors – an economic downturn in Europe, a series of terrorist bombings, increasing numbers of asylum seekers, and the emergence of far-right nationalist parties – changed the political climate and set the frame for the adoption of harmonised rules.Footnote ⁵⁶ When the Schengen Implementing Convention was adopted in 1990, it set forth a securitised version of free movement based on the exclusion of unwanted third country nationals, especially the growing number of asylum seekers. Although these issues were already included in existing literature on the construction of Schengen,Footnote ⁵⁷ Stanley-Becker provides a more nuanced and comprehensive analysis by including hitherto unpublished archival material and showing the transnational effects in national legal orders that resulted from the adoption of the Schengen Implementing Convention. I focus in the following on three aspects of the dark side of Schengen, discussed by Stanley-Becker.

The first aspect concerns stricter visa requirements on third country nationals that were adopted as part of the compensatory measures for abolishing border controls. The Schengen Implementing Convention thus made it harder for most third country nationals to legally enter the EU. Relying on hitherto unpublished archival material, Stanley-Becker shows the secrecy of governments negotiations, reminiscent of the dark ages of European powers’ secret diplomacy. Back in 1985, treatymakers included a secret annex to the Schengen Agreement, which consisted of a list of ‘countries whose nationals were classified as undesirables’.Footnote ⁵⁸ Upon request of the German government, which feared negative diplomatic repercussions, the annex was kept confidential.Footnote ⁵⁹ The lists specified countries whose nationals would be subject to stricter visa requirements. During the negotiations on the Schengen Implementing Convention, the secret lists served as a point of departure for drafting the rules on harmonising national visa requirements. The result was the lowest common denominator: if even one member state had imposed visa requirements on nationals of a given country, those nationals would now require a visa for all other Schengen states.Footnote ⁶⁰

The second aspect concerns the limitation of the right to seek asylum. One undisputed aim during the drafting process of the Schengen Implementing Convention was to avoid refugees in orbit and multiple asylum applications. Only one member state ought to be responsible for the examination of an asylum application. Yet, as Stanley-Becker shows, Germany and France were split about the regulatory approach. While the West German government sought a restrictive approach on the mobility of asylum seekers in the Schengen area ‘in order to stop the attraction effect’, the French government favoured a ‘wide latitude for asylum seekers once inside Schengen’ and considered that asylum seekers should be able to freely ‘circulate on the territory of all states party to the Schengen Agreement’.Footnote ⁶¹ Germany’s position prevailed. The Schengen Implementing Convention included a set of rather restrictive rules governing the responsibility of states to examine an asylum application. With the exception of a few rules that took into account (narrowly defined) family ties, the majority of the rules set out the responsibility of the state that caused the presence of the asylum seeker.Footnote ⁶²

Third, restricting the movement of ‘undesired persons’ was linked from the outset to considerations on collecting and exchanging data on these persons and enhancing transnational collaboration of law enforcement authorities. Before the signing of the Schengen Agreements in June 1985, treatymakers discussed how data sharing would be a ‘weapon against unwanted movement’.Footnote ⁶³ In 1988, the Standing Working Group on the Schengen Information System (SIS) was established, composed of information technology experts and officials of ministries of interior. The working group soon agreed on the technical architecture of SIS: national databases connected to a central database in which information on visa, residence status, and criminal records would be stored and exchanged. National authorities could enter alerts on a person into their national databases, which were then uploaded into the central database, and search the central database for any alerts entered by other member states. After initial technical problems, which essentially consisted of pairing French software with German hardware,Footnote ⁶⁴ SIS became operational in 1995. In terms of scope and depth of data collection and exchange, SIS became the world’s most comprehensive surveillance architecture. What emerged, as Stanley-Becker says, was ‘a transnational panopticon of the information age – a security instrument that substituted for control at territorial borders with cross-border information flows augmenting the state’s police power’.Footnote ⁶⁵

These restrictive rules in the Schengen Implementing Convention were compounded by the absence of harmonisation of substantive national asylum laws that would avoid a race to the bottom, the absence of any effective supervisory mechanism and parliamentary oversight that would harness the surveillance and police powers in SIS, as well as the lack of human rights obligations in that Convention to limit the application of the responsibility criteria if the transfer of an asylum seeker to the responsible state were to result in a human rights violation.Footnote ⁶⁶

Stanley-Becker provides a nuanced analysis of the various challenges to these rules. On the one hand, the widespread criticism by human rights organisations to the adoption of the Schengen Implementing Convention fell on deaf ears. Stanley-Becker argues that the Schengen Implememting Convention reflected a vision of human rights in which migrants were excluded from the scope of human rights. As Catherine Lalumière, the French state secretary in charge of the Schengen negotiations, stated in regard to the Convention: ‘We tend to keep human rights for our own nationals’.Footnote ⁶⁷ On the other hand, Stanley-Becker recounts the various legal struggles at the national level against the rules on responsibility allocation. For instance, in France, migrant rights groups challenged before the French Conseil Constitutionel the restrictive Pasqua laws that limited asylum seekers possibilities to apply for asylum, if they had entered France through another European country. The Conseil held that the Pasqua laws would be contrary to the right to asylum in the French Constitution.Footnote ⁶⁸ In the Netherlands, the Dutch Council of State advised the government not to ratify the Schengen Implementing Convention, because it would permit the Netherlands to ‘delegate to another state the task of determining whether an individual is a refugee’.Footnote ⁶⁹ And in Germany, a divisive debate on Schengen’s asylum rules and the constitutional right to asylum in Article 16 of the Grundgesetz (Basic Law) occurred in the Bundestag, underlain by a German reckoning with its Nazi-past.Footnote ⁷⁰ While the Conservative Christian Democrats in government had pushed for the restrictive first country of entry rule during the Schengen negotiations, opposition parties from the left considered Article 16 Grundgesetz as a moral imperative that followed from the direct historical ‘experiences of guilt, persecution, and suffering’.Footnote ⁷¹

However, legal challenges to the restrictive fallout of the Schengen Implementing Convention resulted, as Stanley-Becker shows, in a backlash. Instead of implementing the constitutional courts’ judgments, member states simply amended their constitutions.Footnote ⁷² These constitutional amendments reinforced and expanded the power of the executive branch over national borders that would otherwise been limited by constitutional protection of asylum seekers. The SIS expanded executive powers over national borders by providing law enforcement authorities with a common technical infrastructure, institutionalised cooperation, and the legal capacities to expand both the scope and the geographic reach of bordering practices. The SIS eventually gave rise to a broader ‘European security architecture’ that relies on the extensive use of personal data, including biometric data, collected in large-scale, supranational databases, which are rendered interoperable and searchable through modern and potentially self-learning technologies, in order to automatically predict threats to public security.Footnote ⁷³ Stanley-Becker thus convincingly discards the myth that the removal of border controls functions as an antipode to national sovereignty. Rather, Schengen simultaneously limited national sovereignty in a few fields and reinforced and expanded it in many others.