The Swiss–EU Schengen and Dublin Agreements

Having heard about the Schengen and Dublin systems in general, we now turn to the two agreements on these issues to which Switzerland is a party.

Let us begin with some official information about the Swiss–EU Dublin and Schengen Agreements, namely their titles:

Dublin: Agreement between the European Community and the Swiss Confederation concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Switzerland.

Schengen: Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis.

First, with respect to the order of the parties: the titles as given above are those used in the European Union (EU) and published in the Official Journal: OJ 2008 L 53/5 (Dublin) and OJ 2008 L 53/52 (Schengen). In Switzerland, the order of the parties is, logically, different (eg ‘Agreement between the Swiss Confederation and the European Community’). Here, the agreements are published in the Swiss systematic collection of legislation: SR 0.142.392.68 (Dublin) and SR 0.362.31 (Schengen).

Next, the names of the parties: both agreements were concluded in the year 2004. This was more than ten years before the last major revision of the EU system through the Lisbon revision. It is through this revision that the former European Community (EC) was legally integrated into the Union. Today, the Schengen and Dublin Agreements are simply between Switzerland and the EU. In the case of the Schengen Agreement, both the EC and the EU were parties because the agreement covered matters that were relevant for both.

Further, note that the texts as published in the OJ are the original versions of 2004. Since then, these texts have been updated many times. For example, there are the Protocols extending the agreements to Liechtenstein, but also many other changes. In the Swiss systematic collection, the text is regularly updated.

Finally, the language of the agreements: in Switzerland, the agreement is published in the three official languages of the country, namely German, French and Italian. There is, therefore, no English version in the official texts of Switzerland. Conversely, in the European Union there are 24 official languages, including, among others, English.

Let us now turn to the content of the two agreements: in both cases, the preambles make reference to ‘the geographical position of the Swiss Confederation’ in Europe, implying that this makes it desirable to include the country into the Dublin and Schengen systems – just remember the map of Europe, where, in certain respects, Switzerland can appear like an island surrounded by the EU and the European Economic Area (EEA).

The next question is then how much of the Dublin and Schengen system is extended to Switzerland.

In the case of Dublin, Art. 1 of the Agreement refers to the Dublin and Eurodac Regulations and to implementing legislation. For these purposes, references in these texts to the Union’s ‘Member States’ must be read as including Switzerland. Further, Art. 1 states that the provisions of the protection of personal data Directive as applicable to the Member States are to be implemented and applied, mutatis mutandis, by Switzerland as far as it concerns data processed for the purposes of implementing and applying the Dublin law. Note that the rest of the Union’s asylum law is not included. As far as the European Asylum Support Office (EASO) is concerned, a separate cooperation agreement between Switzerland and the EU entered into force on 1 March 2016.

With respect to the Schengen Agreement, Art. 1 states that Switzerland ‘shall be associated with the activities of […] the European Union in the fields covered by the provisions referred to in Annexes A and B to this Agreement and their further development’. In fact, this includes the full Schengen system. Note also the reference in Art. 1 of the Agreement to the ‘further development’ of these rules.

With respect to Switzerland and the Schengen Agreement, it is important to understand the combination with the lack of a customs union. This has important practical consequences, namely open borders for people but not for goods. As the Swiss Federal Administration notes, there appears to be quite a bit of misunderstanding by the public on these issues.

Having heard all this, you might reflect on whether or not Switzerland is fully integrated into the Schengen and Dublin systems of the EU. What do you think?

Further reading

Read about the official languages in the EU.