Our contribution to the volume on Administrative Cooperation in the European Space analyses the different cooperation mechanisms within the Schengen area and explores the related challenges of judicial review. The Schengen area and policies have a sensitive nature, in the sense that it builds on an area that is traditionally considered to be sovereign. The Schengen area developed thus by taking into account this sensitivity, and by adopting policies that are mindful of national prerogatives, as well as by developing new forms of sovereignty adjustments allowing for various types of cooperation.

Our chapter starts by shedding light on the two main mechanisms of administrative cooperation in the Schengen area. It then proceeds to mapping the different procedures of administrative cooperation, illustrating thereby the complexity of the subject matter, before exploring the avenues for judicial review. We argue that this complexity ultimately hinders a full and effective judicial protection for individuals, as provided for under Article 47 of the Charter of Fundamental Rights (Charter). 

Mechanisms of administrative cooperation in the Schengen area

Administrative cooperation takes different forms, encompassing cooperation between the national, European and international levels. The chapter argues that the cooperation is most visible in two ways.

Firstly, through mutual assistance (as foreseen in Article 197(2) TFEU). This encompasses for example mutual operational assistance, which instrumentalises among others through the sharing of trainee officials, the secondment and exchange of Liaison Officers, or the carrying out of joint investigations. It also takes the form of mutual financial assistance, through the allocation of funds improving migrations management and solidarity (for example the Asylum and Integration Fund), as well as other special types of mutual assistance in emergency situations. The latter refers to tailor-made emergency operational aid that was provided by the European Union Asylum Agency (EUAA) to strengthen and help local asylum procedures.

Secondly, administrative cooperation can be seen through information sharing mechanisms, either directly or through information systems or centralised databases. With regards to direct information sharing, it is known that information sharing is central to EU agencies, since it does not only feed into their work but is also one of their key functions. Agencies, such as Frontex, also establish frameworks for information exchange and cooperation between Member States and the Agency, such as Eurosur (the European Border Surveillance system) which aims at improving situational awareness of the situation at external borders. Frontex also cooperates with third countries, through regional risk analysis networks, such as the Western Balkans Risk Analysis Network. Finally, information-sharing occurs through European centralised databases, such as the Schengen Information System (SIS), as well as other databases (e.g., Visa Information System), which became interoperable and communicate with each other. Information-sharing brings along fundamental rights concerns for individuals, particularly with regards to their protection of personal data.

Procedures of administrative cooperation

Pursuant to the mechanisms of administrative cooperation, the chapter offers a typology of the different procedures under which administrative cooperation emerges in the Schengen area. We distinguished four procedures under which transnational acts are adopted (namely acts which produce legal effects beyond the borders of the issuing state).

• Transnational acts adopted through mutual recognition

These acts imply the recognition of national standards and decisions adopted in one Member States by another Member State. Examples of these are numerous, for example alerts entered in the SIS, or the Recast Directive 2013/32/EU on granting and withdrawing international protection. In the chapter, we argue that a trend can be seen recently to shift from mutual recognition to semi-automatic transnationality, namely towards integrated and digital systems, which are partially automated. An example thereof is the digitalisation of the visa procedure set out under Regulation (EU) 2023/667, which provides for automated admissibility pre-checks, as well as automated competence pre-checks. These respectively allow to verify whether the information provided by the applicant fulfil the admissibility requirements, and pre-determine the competent Member State based on the journey of the individual.

• Transnational acts adopted through composite procedures

These acts result from a multiple step decision-making procedure including input from administrative authorities from different jurisdictions (either horizontally or vertically). An illustration of these acts is for example the transfer decisions under the Dublin mechanism, which start with the request of one Member States and conclude with the acceptance of another Member State allowing the transfer to take place.

• Transnational acts adopted through joint operations

This category of acts often involves the support of an EU agency (Frontex), alongside Member States. Joint Operation Triton (replaced by Themis in 2018) was for example launched by Frontex at the request of Italy in 2014, and included over 20 other Member States which supported Italy notably with technical support. Frontex can also support third countries and organise joint operations, in which it may even perform executive powers (on the basis of status agreements, like the agreement signed with Serbia in 2025).

• Transnational acts adopted through representation agreements

Finally, and more rarely, acts may be adopted through representation agreements, where a Member State gives another Member State the power to take a decision on its behalf. This is the case under the Visa Code.

Judicial review over administrative cooperation – from limited to non-existent?

The procedures analysed above may have a significant impact on individuals’ fundamental rights. An alert (incorrectly) entered into the SIS may for example restrict an individual’s freedom of movement, and result in catastrophic consequences (e.g., being deported). It is thus important that these procedures can be subject to judicial review. In the chapter we argue that while judicial review opportunities exist in theory, in practice they remain limited.

The picture is slightly more encouraging when it comes to the review of transnational decisions based on mutual recognition (such as the alerts in the SIS mentioned above). While in theory, the entering of the alert by Member State A is subject to the jurisdiction of Member State A, the return decision adopted on the basis of this alert by Member State B is subject to the jurisdiction of Member State B. This clear-cut distinction was, however, nuanced in case law, which developed the possibility for national courts to also assess the legality of acts with transnational effects (in the scenario described above, that would be the alert). This is visible at the national level, with a series of French cases on the SIS (see here, here and here) on the review of alerts entered into the SIS by foreign authorities, but also at the European level. In this regard, the Court of Justice of the European Union (CJEU), noted in R.N.N.S. and K.A. that different national courts are competent to review the legality of the various stages of a decision-making process. In another case, regarding the Dublin Regulation, the CJEU stated that the Member States cannot simply blindly trust another Member State’s decision, but that the Member State must examine itself the application for asylum, if it is necessary to protect the fundamental rights of the individual (case N.S. and others). This is particularly important in cases of systemic or generalised deficiencies in the operation of the judicial system of the issuing Member State (Abubacarr Jawo v Bundesrepublik Deutschland, pt. 85-86; DG and others, pt.135).

With regards to most other administrative cooperation agreements or practices (such as composite procedures in joint operations), we argue that there is a judicial blind spot. In fact, we start to point out that it is commonly difficult to review composite decision-making procedures, when EU agencies are involved (G. Lisi and M. Eliantonio; S. Tas; S. Nicolosi). Under Article 263 TFEU, the CJEU can solely review acts that produce legal effects vis-à-vis third parties, which excludes both preparatory acts and factual actions that represent a large part of EU agencies’ work. While the preliminary reference procedure under Article 267 TFEU remains an option to review these actions, this chapter notes that it also comes with significant challenges and limitations, and does not represent a sufficient substitute option. The action for damage, under Article 340 TFEU, also does not offer a viable solution at the moment, as has been seen with the recent cases brought against Frontex (see WS v Frontex, and Hamoudi v Frontex). This would require the court to recognise a regime of shared liability, which has not yet been a success. Finally, the chapter argues that some administrative cooperation agreements, such as working arrangements concluded with third countries, cannot be subject to judicial review, due to their technical and non-binding nature (M. Fink).

Conclusion

This chapter attempted to entangle the complex nature of the Schengen area which is marked by clear cooperation in the administrative function of the Member States on a horizontal level, a collaborative dimension of the EU administration on a vertical level and an integrated border management level. All these elements bring about their own challenges with regards to judicial review, which we discussed in the chapter. This lack of judicial review is highly problematic due to the sensitive nature of the subject matter and the vulnerability of the individuals involved. While we see efforts being made to strengthen administrative accountability (see for example the European Ombudsman’s own inquiry), including some efforts in the context of joint operations, this should not replace the right to an effective judicial remedy as provided for in Article 47 of the Charter (especially in the light of the jurisprudence of the ECHR). The issue thus remains open and central for the integrity of the area of ​​freedom, security and justice.

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Posted by Karine Abderemane, Maître de Conférences en droit public, IEDP, Université Paris-Saclay, and Sarah Tas, Assistant Professor of Public Law, Maastricht University