CONSEQUENCES OF ADOPTING THE SCHENGEN ACQUIS FOR THE BORDER TRAFFIC BETWEEN POLAND AND UKRAINE

Abstract

The article aims at presenting the social and economic dimension of Schengen regulations, leaving aside its impact on cross-border co-operation. It outlines the legal framework of the Schengen acquis and its impact on Ukrainian-Polish relations in the examined fields. The tightening of these relations is important in view of Ukraine's aim to form a free trade area with the EU and to join the EU at some future point. [PUBLICATION ABSTRACT]

Headnote

Abstract

The article aims at presenting the social and economic dimension of Schengen regulations, leaving aside its impact on cross-border co-operation. It outlines the legal framework of the Schengen acquis and its impact on Ukrainian-Polish relations in the examined fields. The tightening of these relations is important in view of Ukraine's aim to form a free trade area with the EU and to join the EU at some future point.

Key words: Schengen regulations, Ukrainian-Polish relations, cross-border co-operation

(ProQuest: ... denotes formulae omitted.)

Introduction

The eastward enlargement of the European Union was a significant event for the EU, its old and new member states and for Ukraine which in this way became direct a neighbor of the EU and now shares with it a common border. After entering the EU in May 2004, Poland joined on 21st January 2007 the Schengen zone, making the next step in the direction of an "ever closer" Europe. Pursuant to the adoption of the Schengen acquis1 border checks have been abolished at border crossing points between Poland, its EU-neighbors and other countries forming the Schengen zone (border checks at Polish airports have been carried out till the end of March 2008).

At the same time a common visa policy entered into force, compelling Poland to renounce its previous visa arrangements with non EU member states and introduce visa requirements for third country citizens. This changed substantially the meaning of the Ukrainian- Polish border, which became far more difficult for Ukrainian citizens to pass.

Like other state borders the border in case can be looked upon from the economic or social perspective as well as under the angle of cross-border cooperation deemed to facilitate the development of neighboring regions2.

The European framework

The Schengen Agreement, constituting since 1999 a component part of the EU legal framework,3 has developed into a set of measures facilitating the free movement of people, primarily within the European Union, and safeguarding the common external border. However, the free movement of persons within the EU is not derived solely from the Schengen agreement. In the first place it was the European Community with the free movement of capital, labor etc., enshrined in its primary law provisions, which was in need for the free movement of people. If the freedoms of the common market were to work, the free movement of citizens across the Community and their right to stay in the territory of another member state had to be secured. To this aim a number of secondary law enactments have been adopted over the time in order to facilitate the free movement of persons4.

The Schengen framework, which developed independently from these regulations, has been adopted by EU legislation and incorporated into the acquis communautaire as a part of measures facilitating the area of freedom, security and justice5 "communitized" since entering into force of the Treaty of Amsterdam. The provisions relating to this scope of relations have been inserted by the Treaty of Amsterdam6 in the Treaty establishing the European Community under the title "Visas, asylum, immigration and other policies related to free movement of persons" (Title IV, Art. 61 to 69)7. Art. 62 and 63 of the EC Treaty determined the means that the Council should put into force within the period of five years after the entry into force of the Treaty of Amsterdam (i.e. until 1st May 2004). These include (Art. 62 EC):

1. measures with a view to ensuring, in compliance with Article 14, the absence of any controls on persons, be they citizens of the Union or nationals of third countries, when crossing internal borders;

2. measures on the crossing of the external borders of the Member States which shall establish:

(a) standards and procedures to be followed by Member States in carrying out checks on persons at such borders;

(b) rules on visas for intended stays of no more than three months, including:

(i) the list of third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement;

(ii) the procedures and conditions for issuing visas by Member States;

(iii) a uniform format for visas;

(iv) rules on a uniform visa;

3. measures setting out the conditions under which nationals of third countries shall have the freedom to travel within the territory of the Member States during a period of no more than three months.

Thus, based on primary law provisions a series of secondary law enactments have been adopted determining the rules for granting the uniform Schengen visa, checks at the external borders, etc. The most important be named:

. Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code)8, repealing the parts of the Convention Implementing the Schengen Agreement, dealing in detail with border controls and the prerequisites for entry by third-country nationals.

. Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement9.

. Council Regulation (EC) No 693/2003 of 14 April 2003 establishing a specific Facilitated Transit Document (FTD), a Facilitated Rail Transit Document (FRTD) and amending the Common Consular Instructions and the Common Manual10.

. Council Regulation (EC) No 1683/95 of 29 May 1995 laying down a uniform format for visas11.

. Regulation (EC) No 1987/2006 of 20 December 2006 on the establishment, operation and use of the second generation Schengen Information System (SIS II)12.

The most important of these regulations is the Schengen Borders Code, which 1) provides for the absence of border control of persons crossing the internal borders between the Member States of the European Union, and at the same time 2) establishes rules governing border control of persons crossing the external borders of the Member States of the European Union.

The Borders Code together with other secondary law regulations imposes considerable restrictions on third country nationals i.e. persons who are neither EU citizens nor otherwise enjoy the Community right of free movement (Art. 2(6) Schengen Borders Code) crossing external borders within the meaning of its Art. 2(2). External borders may be crossed only at border crossing points and during the fixed opening hours (Art. 4 (1) Schengen Borders Code). Additionally, for stays not exceeding three months per six-month period, the entry conditions for third-country nationals are the following (Art. 5 (1) Schengen Borders Code):

(a) they must be in possession of a valid travel document or documents authorizing them to cross the border;

(b) they must be in possession of a valid visa, if required pursuant to Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement, except where they hold a valid residence permit;

(c) they must justify the purpose and conditions of the intended stay, and have sufficient means of subsistence, both for the duration of the intended stay and for the return to their country of origin or transit to a third country into which they are certain to be admitted, or be in a position to acquire such means lawfully;

(d) they are not persons for whom an alert has been issued in the SIS for the purposes of refusing entry;

(e) they are not considered to be a threat to public policy, internal security, public health or the international relations of any of the Member States, in particular where no alert has been issued in Member States' national data bases for the purposes of refusing entry on the same grounds.

However, member states of the EU should ensure that control procedures at external borders do not constitute a major barrier to trade and social and cultural interchange. To that end, they should deploy appropriate numbers of staffand resources13.

Extending the Schengen zone to Poland, Slovakia and Hungary. Consequences for Ukraine

The Schengen-countries' citizens, as well as those, who stay legally in the territory of these countries, including third country citizens, can cross borders between them without passport controls. However, the abolition of border controls on the internal Schengen borders goes hand in hand with the introduction of a strict common visa policy and harsh control measures on the external ones. After extending the Schengen zone to countries having a direct border to Ukraine (Hungary, Poland and Slovakia) the situation became complicated in a number of ways and the implementation of the Schengen acquis by these countries influenced the dynamics of their border traffic with Ukraine14. Ukrainian citizens who used to travel visa-free to Poland have been confronted with the necessity to obtain a visa even if most of the border traffic in the period before Poland entered the Schengen zone was confined to short stays in the border area considered generally to be economically beneficial for the border region.

Therefore Ukrainian state authorities acknowledged the priority of adopting national legislation with regard to the simplification of the border crossing procedure for Ukrainian nationals. This legislation cannot be adopted freely, but has to comply with European regulations in the field the Schengen acquis, which leave anyway a certain amount of freedom for determining privileged entrance conditions for Ukrainian citizens.

The specification of such conditions remains one of the most important tasks of Ukrainian authorities. They have to negotiate favorable entrance conditions for Ukrainian citizens with the EU. This is a task of great importance, since the introduction of the visa regime as well as other organizational measures related to border controls at external Schengen borders already resulted in the reduction of the amount of people entering the territory of Ukraine's western neighbor states with a tourist purpose, in order to visit their relatives, or for business purposes. It must be noted in this context that in most cases the refusal to grant a visa will not result from not having applied for it in due form or time, but simply because the visa fees are out of reach for most of the prospective applicants.

Entrance regulations before Poland's entering Schengen

As indicated above, joining the Schengen zone by Poland was the stumbling block in Ukrainian-Polish border traffic relations and complicated in an aggravating way the conditions for entry of Ukrainian citizens to Poland. Already ahead of Poland's entering the Schengen zone an introduction of the visa requirement for the citizens of non-EU neighboring countries took effect. This marked the end of visa free border traffic between Ukraine and Poland which had been practiced since the 1990s.

However, a comparison of visa issuance practices shows that Polish, Hungarian and Slovakian authorities employ a less bureaucratic and more forthcoming strategy in the process of granting visas to Ukrainian citizens than other Schengen countries. For example:

- visa application was free of charge or for the low price (while Schengen visa now costs 35 Euros or 60 Euros)15.

- the procedures are simple (less documents are required) and waiting time is shorter (in many cases all the procedures last one day);

- visa denial percentage for the citizens of Ukraine is considerably lower (ca. 1,2% for all three neighboring countries) in comparison to visa denial percentage by other states of the Schengen area (11,5%) 16.

This favorable attitude of Ukraine's neighboring countries towards relaxed border traffic regulations with Ukraine is motivated by the fact that they themselves experience considerable losses, in particular material ones (cf. Chart 1 giving information on the amount of money spent by foreigners visiting Poland in one day), due to the hermetic Schengen border, which poses a considerable obstacle to free economic and cultural interchange in their border regions.

For this reason, an active participation of these countries in negotiations leading to the adoption of decisions in favor of more lenient entry regulations for Ukrainian citizens can be expected. These decisions have nevertheless to be based on a compromise, acceptable both for Ukraine and the European Union. However, a more flexible policy on the side of the EU is highly advisable in order to stimulate the declining border traffic between Ukraine and Poland. Statistical data show a decrease in the number of Ukrainian citizens visiting Poland over the last year measured in the number of lodgings by nearly 30 percent (see Table 1).

Due to the introduction of the visa regime the prospect of a sizeable reduction of economic and interhuman cross-border relations between Ukraine and Poland seems inevitable as the number of border crossings dwindles.

For some Ukrainian travelers abroad visa will become inaccessible because of sheer lack of money that should be paid for them. Others will be deterred by inconveniences attached to the application process: a journey to the embassy, long waiting queues, time which has to be spent on arranging all these things (issuing a visa alone lasts on the average from two to six weeks), troubles with documents and, again, the necessity to spent money on all these arrangements. To prove this let us compare the border crossing volumes of in 2006 and 2007 during the period of Poland's adjustments to the requirements of the Schengen Agreement (Chart 2.).

According to the data collected by the Ukrainian border guards, after the introduction of visas the amount of Ukrainian citizens who visited Poland as tourists diminished by 15 %, private visits by less than 20 %, official visits - by 12 %17. However, the amount of Polish citizens visiting Ukraine in 2007 increased substantially - to 186,8 thousands of persons18. On the whole the annual amount of journeys by Polish citizens to Ukraine after the introduction of the visa regime increased practically twice.

Based on these data, it can be assumed that the traffic through the Ukrainian-Polish border will decrease by more then 20 %. Anyway, the absolute amount of crossings at the Ukrainian-Polish border is considerably higher than the amount of crossings at the border between Poland and Byelorussia.

That's why a more substantial traffic decrease at this border will be observed. Though the total arrivals number of foreigners is expected to grow from 15,7 million in 2007 to near 19 million in 2012 and 2013, it means that the average annual dynamics of number of arrivals of foreigners to Poland in 2006 - 2013 will increase by of 2,7%19. At the same time the number of arrivals from Ukraine, Russia, Byelorussia is expected to decrease (Chart 3.).

The introduction of visas and strengthening of border control will also negatively influence the level of business contacts, as it will raise the cost of journeys with the purpose of negotiations and signing of the corresponding agreements. The problem of visa introduction will also influence the fate of hundreds of thousands of Ukrainian citizens who in the difficult time of the transitional period chose to seek their income abroad in order to support their families living in Ukraine.

Conclusion

Speaking about Ukrainian home policy consequences derived from the freedom to travel to the European Union it is necessary to consider the value of the possibility to travel abroad for the Ukrainian people during the last ten years. This possibility is very important not only because it gives Ukrainians the chance to work abroad. It also plays a very important role in the transformation of their psychology from Homo Sovieticus to citizens of a modern independent European state. By the way, this transformation is far from being over for many of them.

Footnote

1 Through the Council decision concerning the definition of the Schengen acquis (Council Decision of 20 May 1999 concerning the definition of the Schengen acquis for the purpose of determining, in conformity with the relevant of the Treaty establishing the European Community and the Treaty on the European Union, the legal basis for each of the provisions of decisions which constitute the acquis (1999/435/EC)).

2 A. MAKSIMCZUK, L. SIDOROWICZ: Graniczny ruch osobowy i towarowy w Unii Europejskiej, Warsaw 2007, p. 167.

3 The Treaty of Amsterdam incorporated the Schengen Agreements of 1985 (Agreement between the Governments of the Sates of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, Schengen I, Official Journal L 239 , 22/09/2000 P. 0013 - 0018) and 1990 (Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, Schengen II or CIS, Official Journal L 239 , 22/09/2000 P. 0019 - 0062) into the framework of European Union Law.

4 Cf. e.g. Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (O.J. L 257 , 19/10/1968 P. 0002 - 0012), Council Directive No 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services (O.J. L 172, 28.6.1973, p. 14 - 16) and others.

5 Protocol No 2 annexed to the Treaty on European Union and Treaty establishing the European Community integrating the Schengen acquis into the framework of the European Union.

6 Cf. Art. 2 point 15 Treaty of Amsterdam.

7 The Treaty of Lisbon - not yet in force - substantially amends these provisions and renames the Title to "Area of freedom, security and justice", and divides it into five chapters called "General Provisions", "Policies on border checks, asylum and immigration", "Judicial cooperation in civil matters", "Judicial cooperation in criminal matters" and "Police cooperation".

8 O.J. L 105 , 13/04/2006 P. 0001 - 0032.

9 Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement, Official Journal L 81, 21/03/2001, P. 1-6.

10 O.J. L 099 , 17/04/2003 P. 0008 - 0014.

11 Official Journal L 164 , 14/07/1995 P. 0001 - 0004.

12 Official Journal of the European Union 28.12.2006 L 381/4.

13 Reason 11.

14 ...2004.

15 Jaroszewicz M., "Skutki rozszerzenia Schengen dla wschodnich sasiadów Unii Europejskiej", Warszawa 2007.

16 Reason 15.

17 www.icps.kiev.ua.

18 www.ukrstat.gov.ua.

19 www.intur.com.pl.

References

REFERENCES

1. ...2003.

2. ...2004.

3. Jaroszewicz M., "Skutki rozszerzenia Schengen dla wschodnich sasiadów Unii Europejskiej", Warszawa 2007.

4. Maksimczuk A., Sidorowicz, L.: Graniczny ruch osobowy i towarowy w Unii Europejskiej, Warsaw 2007, p. 167.

5. www.ukrstat.gov.ua

6. www.intur.com.pl

7. www.icps.kiev.ua

8. www.gus.pl