US Citizen: 90/180 Schengen Stay & Bilateral Agreements w/Poland, Denmark, etc

There is no EU legislation that addresses the bilateral agreements involving member states that were in force prior to the Schengen Agreement. During the debate, questions from EU Parliamentarians were put to the EU Parliament with the outcome that it would be down to the individual states to honour their prior bilateral agreements.

You can enjoy extra time in Schengen by benefiting from one of these agreements, but take note that while you are anywhere in Schengen, the ‘Schengen clock’ never stops for all the other members. Consider these slightly different strategies…

Strategy 1 (legal): travel to Schengen, spend 90 days, travel to Denmark, spend another 90 days for a total of 180 days, leave the Schengen zone and stay out for 91 days.

Strategy 2 (not legal): travel to Schengen, spend 90 days, travel to Denmark, spend another 90 days for a total of 180 days, travel to Germany. In this case you can expect to be challenged and detained.

Strategy 3 (not legal): travel to Denmark, spend 90 days, travel to Germany. In this case you can expect to be challenged and detained.

Strategy 4 (special case for U. S. citizens): travel to Schengen, spend 90 days, travel to Denmark, spend another 90 days for a total of 180 days, travel to Poland, France, or any other Schengen member where a bilateral agreement with the U. S. is in force. You can expect to be challenged, but the outcome will be favourable because you cleared their policy with the member’s foreign office BEFOREHAND, and you will show their correspondence to the border official. Per EU policy, it’s down to the individual member state and you’ll need to check with each member separately.

For these reasons, bilateral agreements are best enjoyed as the FINAL destination prior to leaving Schengen altogether.

Adding: Lots of forum threads seem to confound the current Schengen 90/180 rule with the earlier rule. Threads prior to November 2013 should be examined with caution.

Also adding: You wrote: my "gap months" were spent in the UK Note that the Immigration Act 2014 is tightening up this loophole to stop people from doing that. See the new Paragraph 41.

Please see this related question Clarification on UK Visitor Rules Paragraph 41 and the Schengen cooling off period

Adding 26 Nov 2015

For comments asking for an explicit statement about Schengen being mentioned in the rules, the rules are not drafted in such a way that rationale or purpose are mentioned. Rules are stated in plain, natural language to last a long time and they do not explain the background or rationale. The background and rationale behind a given piece of legislation are debated in Parliament and may be the topic of policy papers, but these do not appear in the final rule. This practice is common across the board in UK law.

In Denmark, at least, such bilateral agreements do exist. The nyidanmark.dk website is run by the government and can be trusted.

The official rules were announced in Danish in Statstidende on 20.12.2013, under the heading “Pas- og visumforhold 2014” (unfortunately it doesn’t seem to be easy to link to the individual announcement, but searching for “visumforhold” on statstidende.dk will find it).

An English translation of the announcement can be found here; the relevant part is section V on page 21.

Why does the statement mention “another Nordic country”? Is this bilateral agreement with just Denmark, or does it include other Nordic countries as well?

I think the answer is that the bilateral agreement predates Denmark’s accession to Schengen. Before that there was the Nordic Passport Union, which provided for (surface) travel between the Nordic countries without border checks. The agreement might have been written to cover stays in the entire Nordic area to make it easier to police, back when aliens did get entry/exit stamps for the Nordic area as a whole. It was then grandfathered into the Schengen context without extending the rights.

If I follow through with this and decide to go to one of these countries, how can I get official verification of the additional 90-day period? The Schengen area doesn’t have border checks, after all; there won’t be any official proof that I entered Denmark/Poland/France on a certain date.

As far as I read the rules, it will mostly be up to your say-so. If you’re accused of overstaying after the the original 90-day period ended, you might need to produce evidence that your earlier period was spent in the non-Nordic part of Schengen. While your own testimony would go a long way (unless there’s contrary evidence against you), it would probably be a good idea to save hotel receipts or the like for the non-Nordic initial part of the trip, just in case.

Do I have to do something to “activate” this extended stay?

Not as far as I can see.

Does the 90-day Schengen period get put on hold while I’m in one of these bilateral countries, or is it still active?

No, the Schengen clock keeps ticking. The other Schengen countries apply their own rules which just speak about days of presence in the Schengen area (including Denmark) within the last 180 days. Their rules don’t know about Denmark’s bilateral agreements.

This means that when you leave Denmark after spending extra days here, you’re not be allowed to transit through another Schengen country. So if you’re not flying direct from Copenhagen back to the US, you could transfer in London, but not in, say, Frankfurt or Paris.