Book Reviews Achermann, Alberto, Roland Bieber, Astrid Epiney, and Ruth Wehner (eds.). Schengen und die Folgen. Bern: Verlag Stämpfli + Cie AG, 1995. Pp. 263. sF 64. Schengen, a small town in Luxembourg, has become for some people the symbol of free movement in Europe. For others, it represents the `Sündenfall' of two-step integration by using `mere' international law instruments. The Schengen II Agreement entered into force for seven countries on 26 March 1995. The authors of this volume, all well-known specialists in the intricate interplay of free movement, migration and asylum rules, tell somewhat different tales about Schengen, which is caught between Community, Member State and international law. Their reflections, discussed first in a seminar for Swiss officials in 1994, were published a year later. The information remains timely, as not a great deal has happened since. In her first contribution, Astrid Epiney looks into the relation between Art. 7a and 5 EC Treaty, on the one hand, and the structure of `Schengen II' under international law on the other. She perceives potential frictions, but is convinced that, by allowing for priority of Community law in Art. 134 of Schengen II and harmonization with later international law in Art. 142, those potential conflicts can be removed (pp. 43 ff.). Community law is not hostile to using international law instruments for closer cooperation between some countries, if the basic goals of the Treaty - free movement without border controls - cannot otherwise be realized. She regrets, with good reason, that Schengen, unlike the Judgment Convention and the Agreement of Social Policy, was not put under judicial scrutiny by the European Court (p. 48). The contribution of Alberto Achermann offers a profound, yet critical, insight into the extremely delicate and politicized problem of asylum rules under the agreements of Schengen II and (not yet in force) Dublin. The most innovative part has been the exclusive competence of one country to rule - with extraterritorial effect - on asylum applications (in reality, rejections!), a principle which helped the German Bundesverfassungsgericht in its controversial three judgments of 14 May 1996 (with strong dissenting opinions) to justify the serious restrictions on grants of asylum introduced by German legislation of 1993. Achermann insists on the following political and legal defects of the agreements: unequal burden sharing, no free choice of applicants, no mutual recognition of positive decisions on application, no control over so-called `safe third country' rejection practices, a very narrow concept of family in contradiction to Art. 8 ECHR, no mandatory judicial control. The author sees some positive signs under the initiating powers of the Commission under Art. K.3/9 Union Treaty and Art. 100c EC Treaty (with the possibility of qualified majority decision-making from 1 January 1996, which has not yet been used). Ruth Wehner gives a very detailed overview of police cooperation under Schengen II, including collection, exchange and dissemination of information and data protection. In his brief closing remarks, Roland Bieber is, in contrast to Epincy, quite sceptical as to the `model character' of Schengen as a form of cooperation outside the Treaty. It uses, he claims, rather `primitive' (p. 185 - why?) instruments under international law. This needs to be overcome be more integrative means of Union or Community law, with participation by the institutions of the EC and eventual submission to control by the ECJ. This, in his opinion, is required by Art. C EU Treaty (p. 186). But what is to be done if some Member States, such as the UK, simply reject any Community initiative in this area? Will the possibility of majority voting under Art. 100c be a realistic alternative, or will it cause even more disintegration of the Union? What will be the chances of the Commission proposal of 17 November 1995 (OJ 1995 C 306/5)? This question needs to be answered by another publication, which could make use of the political and practical experiences with Schengen II! The Annex contains valuable documentation (only in German), with the entire text of the Schengen II and Dublin agreements. Norbert Reich University of Bremen
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