109. At the Amsterdam
European Council held on 16/17 June 1997 the Member States reached
political agreement on a draft Treaty text (the Amsterdam Treaty).
The Treaty, which is expected to be signed in Amsterdam in October
1997, will, when it enters into force, structurally alter what
at present forms the Third Pillar. The existing Third Pillar will
be divided into two parts, one of which will become a new Title
III-A to be inserted into the EC Treaty. In addition, certain
provisions relating to customs cooperation under the existing
Article K.1(8) will be transferred to a new and strengthened Article
209a in the EC Treaty combating fraud against the Community.
The remaining part of the present Third Pillar will remain inter-governmental
in nature but will be renamed "Provisions on police and judicial
cooperation in criminal matters". The amended text
of Article K will consist of 14 articles (K.1-K.14) with four
associated declarations. Article K.1 will list certain criminal
phenomena to be addressed
and three methods of cooperation to be employed.
110. The Committee
recognises that the Amsterdam Treaty is provisional and subject
to further revision and refinement before a final version will
be signed in October. The Committee proposes to comment, however,
on the implications for Parliamentary scrutiny arising from: the
transfer of asylum, visa and immigration policy from the Third
Pillar to the new Title III-A and the effect of Protocol Y; the
Protocol integrating the Schengen acquis; the new Article
K.6 and the Declaration on Article K.6(2); the granting of a formal
consultation role to the European Parliament under the Third Pillar;
the Protocol on the role of national parliaments; and the new
provisions on transparency and openness.
111. The Home Office
provided a memorandum outlining certain provisions of the Amsterdam
Treaty which were of relevance to the Committee's enquiry. The
Committee also discussed certain aspects of the Amsterdam Treaty
with the witnesses they met during the Committee's visit to Brussels
and at the Committee meeting with the Home Secretary and his officials.
NEW TITLE III-A AND THE EFFECT OF PROTOCOL Y
112. Under the Amsterdam
Treaty the matters currently referred to in Article K.1(1),
of the Maastricht Treaty will be transferred to a new Title III-A
in the EC Treaty. Protocol Y will govern the relationship of the
United Kingdom and Ireland to the new Title III-A.
The basic provisions in Articles 1 and 2 of Protocol Y are that
the United Kingdom and Ireland will not take part in the new title
and that nothing agreed under it will apply to them. However,
Article 3 of Protocol Y allows the United Kingdom and Ireland
to opt in to measures adopted under the new title on a selective
basis provided that they give notice of their intention to do
so within 3 months of a proposal being presented to the Council.
Where measures are adopted by the thirteen Member States without
the United Kingdom and Ireland, Article 4 allows both Member States
to notify their intention to the Council and the Commission to
accept such measures at a later date should they so wish.
113. The modus operandi
for the new Title III-A raises an important question for Parliamentary
scrutiny. Although the Government may decide not to opt in to
the negotiations on a proposal when it is first proposed, the
option exists for the United Kingdom to subsequently agree to
accept the measure.
114. Bearing in
mind that the Government will not be in a position to renegotiate
a measure where it has decided to opt in after it has been adopted
by the other Member States, it follows that if the Committee is
to have any influence on the proposal it must have an opportunity
to scrutinise it when it is first brought forward. A similar,
but not identical, situation has existed with respect to legislation
adopted under the Agreement on Social Policy (the Social Chapter)
annexed to the Maastricht Treaty.
Despite the fact that the United Kingdom may have taken no part
in the negotiations on Social Chapter proposals, the texts of
proposals have been deposited in Parliament by the Government
and the Committee has had an opportunity to scrutinise them.
115. We recommend
that, in order to safeguard the Parliament's scrutiny prerogatives,
all proposals to be adopted under the new Title should be deposited
in Parliament when they are first tabled by a Member State
or the Commission irrespective of whether or not the Government
intends to take part in the negotiations at the initial stage.
PROTOCOL INTEGRATING THE SCHENGEN ACQUIS INTO THE MAASTRICHT TREATY
116. A Protocol
to the Treaty would incorporate the Schengen Agreement of 1985
into the treaty system.
The Protocol refers to the Schengen acquis
which is defined in an Annex to the Treaty. All the Member States,
including the United Kingdom and Ireland, would be parties to
the Protocol in as far as it authorises the thirteen Member States
which are committed to Schengen to make use of the Community institutions.
Special arrangements will apply for the United Kingdom and Ireland
which make it clear that both the acquis and future decisions
based on them will not apply only to them.
Because the existing Schengen acquis covers matters falling
within the new Title III-A and the Third Pillar, the Member States
will have to separate the measures adopted according to whether
they can be transferred into the new Title III-A of the EC Treaty
or must remain within the Third Pillar. The distribution of Schengen
measures in the Community and Third Pillars must be sanctioned
by a unanimous decision of the participating States before the
entry into force of the Amsterdam Treaty.
117. Article C of
the Protocol provides that the United Kingdom and Ireland may
at any time submit a request to take part in some or all of the
provisions of the existing Schengen acquis. Where the United
Kingdom or Ireland submits a request to take part the Council
will decide on the request by a unanimous vote of the Member States
who are full parties to the Schengen Agreement.
Article D makes provision for the United Kingdom (and the Republic
of Ireland) to take part in actions to develop the Schengen acquis
after the Treaty comes into force. Where the United Kingdom has
notified the President of the Council, in writing of such an intention,
the United Kingdom will be entitled to participate, automatically
in the case of the development of the Schengen acquis in
the Third Pillar, and, in the case of development of the Schengen
acquis in the new Title III-A, subject to Protocol Y governing
United Kingdom participation in that Title.
118. The Home Office
indicated that it will be examining the detailed functioning of
Schengen in order to determine, on a case-by-case basis, whether
to seek to participate in particular elements of Schengen activity.
In its view, it was likely that there would be few areas of Schengen
activity in which the United Kingdom would wish to participate.
The Home Office confirmed that where the Government decided to
seek to take part in any element of Schengen activity - whether
existing acquis or future co-operation - Parliament would
be notified. The procedures to be used would be determined by
whether the matter fell within the Third Pillar or under the new
Title III-A. The Government would undertake to notify Parliament
of the outcome of any application to participate in Schengen activity
119. The Home Secretary
commented that the Schengen arrangements in the Amsterdam Treaty
were complicated. He believed that as the United Kingdom was committed
to maintaining its internal frontier controls and national control
over asylum and immigration policy this would narrow the range
of Schengen activities in which the United Kingdom might consider
participating. He noted, however, that there were some areas,
particularly in relation to police co-operation, where it might
be in the national interest for the United Kingdom to participate.
He agreed that he would inform Parliament of the outcome of the
Home Office's examination of the Schengen acquis (QQ 303-4).
120. The provisions
incorporating the Schengen acquis into the Amsterdam Treaty
are extremely complex and will require careful analysis in the
months prior to the entry into force of the Amsterdam Treaty.
The Committee is grateful to the Home Secretary for confirming
that he will inform Parliament of the outcome of his Department's
examination of the existing Schengen acquis.
welcome the Home Office undertaking to notify Parliament of any
decision to take part in the existing or future Schengen acquis.
As the United Kingdom has not been a party to the Schengen Agreement
and Parliament has not scrutinised the measures already adopted
it is crucial that any measure which it is intended to accept
is deposited in Parliament in time to enable it to consider and
comment on the desirability or otherwise of agreeing to apply
the measure in the United Kingdom. We recommend that such measures
should be treated in the same way as proposals for new legislation
under either the Community Pillar or the Third Pillar and that
the Government should make any application to participate in Schengen
measures subject to Parliamentary scrutiny.
122. We welcome
the Home Office undertaking to keep Parliament informed of the
outcome of any application to participate in Schengen activity.
K.6 AND THE DECLARATION ON ARTICLE K.6(2)
123. A new Article
K.6 (which will replace the existing Article K.3) will outline
the consultation and decision-making processes to apply under
the revised Third Pillar. In the new text "Joint Actions"
will become "Common Positions". A new category of "framework
decisions", similar in nature to Directives under the EC
Treaty but without direct effect, will be used "for the purpose
of approximation of the laws and regulations of the Member States".
They will be binding upon the Member States as to the result to
be achieved but will leave it up to national authorities to decide
the appropriate form and method of implementation. There will
also be a category of "other Decisions" covering any
other purpose consistent with the objectives of the Third Pillar.
Conventions will also be drawn up under the Third Pillar. However,
conventions would be capable of entering into force once ratified
by half the Member States. A Declaration on Article K.6(2) provides
for the publication of Third Pillar proposals in the Official
Journal of the European Communities in accordance with "the
relevant rules of procedure of the Council and the Commission".
124. The Home Office
outlined the present procedure applied in deciding whether or
not to publish a Third Pillar proposal. The decision whether or
not to publish an agreed Third Pillar measure is taken by unanimity
in each case at the time of adoption.
If there is to be a general practice of publication, as required
by the Declaration to Article K.6(2), the Council Rules of Procedure
will require amendment. Since Third Pillar initiatives often emerge
gradually and informally from Member States rather than as a formal
Commission proposal, the Council will also need to determine at
what point the initiative should be published. The Home Office
did not believe that the Declaration would have much impact on
the Parliamentary scrutiny process since Third Pillar proposals
falling within the scrutiny criteria would be made available to
the scrutiny committees regardless of their official publication.
The Home Office recognised, however, that the Declaration should
increase public access to Third Pillar initiatives before they
are adopted, subject to the terms of the Council rules governing
access (p 17).
125. Mrs Neyts-Uyttebroeck,
MEP, welcomed the inclusion of framework decisions within the
new Article K.6. These had the advantage of being clearly defined
legal instruments which would impose binding obligations on Member
States. She expressed concern about the legal status of common
and suggested that there would have to be careful consideration
of the possibilities for Parliamentary control and overview of
these. Security concerns should not override the need to protect
fundamental liberties (QQ 284-6).
126. The Committee
welcomes the reclassification of the instruments to be applied
under the Third Pillar. As many witnesses indicated during the
course of the enquiry, the existing instruments (joint actions
and joint positions) have unclear legal status and often give
rise to disagreements among Member States on the binding character
of certain rules. Furthermore, the uncertain status of Third Pillar
instruments has given rise to problems in identifying matters
which fall within the terms of the Government's undertaking to
Parliament. The Committee believes that the new classification
set down in Article K.6(2) will assist both the Government and
Parliament in identifying the documents to be deposited for scrutiny.
share the view expressed by Mrs Neyts-Uyttebroeck, MEP, that there
must be Parliamentary oversight of common position texts.
This is particularly important because of their exclusion from
the documents to be transmitted to the European Parliament for
consultation. National Parliaments will have to fill this vacuum
and ensure that their Parliamentary scrutiny arrangements are
broad enough to catch these documents.
128. We welcome
the new provisions in Article K.6.2(d) on conventions to be adopted
under the Third Pillar. Allowing conventions to enter into force
once a minimum number of Member States have completed their ratification
procedures is consistent with the practice followed in other international
fora such as the Council of Europe.
129. We note the
comments made by the Home Office in relation to the Declaration
on Article K.6(2). If the publication of Third Pillar proposals
in the Official Journal of the European Communities is to have
any practical significance for interested third parties, then
it must take place at the earliest possible stage of the legislative
process to enable interested parties to consider the proposal
and make submissions either to the relevant Government Departments
directly or to their national parliaments.
39 A new Article will be inserted into the EC Treaty requiring the Council to take measures in order to strengthen customs cooperation between Member States and the Commission. The measures to be adopted shall not concern the application of national criminal law and the national administration of justice where customs cooperation will continue to be governed by the Third Pillar. Back
40 The criminal phenomena to be addressed will be: racism and xenophobia; terrorism; organised and other crime; trafficking in persons; offences against children; illicit drug trafficking; illicit arms trafficking; corruption; and fraud. Back
41 The new Treaty envisages cooperation taking place between police forces, customs authorities and other competent authorities, directly and via Europol; between judicial authorities; and by approximation (greater harmonisation) of rules on criminal matters. Back
42 Asylum policy. Back
43 Rules governing the crossing by persons of the external borders of the Member States and the exercise of controls thereon. Back
44 Immigration policy and policy regarding nationals of third countries:
(a) conditions of entry and movement by nationals of third countries on the territory of Member States;
(b) conditions of residence by nationals of third countries on the territory of Member States, including family reunion and access to employment;
(c) combating unauthorised immigration, residence and work by nationals of third countries on the territory of Member States. Back
45 Judicial cooperation in civil matters. Back
46 Denmark has also secured a special arrangement under a separate Protocol Z which exempts Denmark from everything adopted under the new title on free movement of persons, immigration and asylum in terms similar to Protocol Y but with a different version of the opt-in mechanism. Back
47 The Agreement on Social Policy (often known as "the Social Chapter") annexed to the Maastricht Treaty provided for the Council to legislate on a range of social and employment matters. Under the Protocol on Social Policy (Protocol No. 14) the United Kingdom is excluded from the Agreement: legislation adopted under it does not apply to the United Kingdom, and United Kingdom Ministers take no part in the Council's deliberations on Social Agreement business. Unlike the proposed new Title III-A the United Kingdom does not have an option to accept legislation agreed by the other Member States. It should be noted that the Draft Treaty will change this position as the United Kingdom Government has agreed to be integrated into the Social Chapter. Back
48 Under the new Title III-A Member States will retain a right of initiative in certain areas for a period of five years after the entry into force of the Draft Treaty. Back
49 The Schengen Agreement, signed on 14 June 1995, between the Governments of the States of the Benelux Economic Union, Germany and France on the gradual abolition of checks at their common borders. Since 1985 Italy, Spain, Portugal, Greece Austria, Denmark, Finland and Sweden have signed the agreement. Neither the United Kingdom nor Ireland are signatories. Back
50 The Schengen acquis is the entire body of rules and agreements achieved so far under the Schengen arrangements. A list of the existing Schengen acquis has been published by Statewatch. Back
51 Special arrangements also apply to Denmark whose position is governed by Article Ba of the Protocol. Back
52 Article C is currently subject to dispute. Both the United Kingdom and Ireland were under the impression that the Council would take decisions by qualified majority rather than unanimity. The matter is still being negotiated and will have to be resolved before the Amsterdam Treaty can be signed. Back
53 Article 18 of the Council Rules of Procedure. Back
54 The Council will not be required to consult the European Parliament on common position proposals under the new Article K.11. Back