Select Committee on European Communities 31st Report



  45.    Until now, Schengen has operated under its own Treaty regime quite distinct from the EC Treaty and Treaty on European Union (TEU). It makes sense to incorporate it into the framework of the European Union for two reasons. First, there is a similarity of objectives between Schengen and EU policies on free movement of persons. And secondly, there is a perceived need for more open, democratic and accountable decision-making within the Schengen area. The complexity of the Schengen machinery and its status as a body of international law make it difficult to achieve adequate accountability at a national level. Incorporation would help to achieve greater openness and accountability at an EU level. These two reasons for incorporation are considered below.

Reason 1: Similarity of Objectives of the European Union and Schengen

  46.    The Schengen agreements are intended to give concrete expression to "the increasingly closer union of the peoples of the Member States of the European Communities ... manifested through freedom to cross internal frontiers for all nationals of the Member States and in the free movement of goods and services"[61]. For the Schengen States, incorporation of the Schengen acquis in the framework of the EU Treaties may be regarded as bringing it back where it belongs[62].

  47.    We heard in our last enquiry on Schengen that there was a symmetry between the Schengen Convention and the new Title IV in the EC Treaty, agreed at Amsterdam, which gives the Community competence for visas, asylum, immigration and other policies related to the free movement of persons[63]. Member States belonging to Schengen saw their co-operation as a "laboratory" and the provisions in Title IV as the natural result of their experimentation. The aspirations of the Schengen States are clearly reflected in the new Article 2 of the Treaty on European Union which sets out the objective of maintaining and developing the Union "as an area of freedom, security and justice, in which the free movement of persons is assured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime". Once the Amsterdam Treaty enters into force, free movement and the "flanking" measures regarded as pre-conditions for lifting internal border controls are to be achieved within the framework of the European Union.

Reason 2: The Democratic and Judicial Deficit

  48.    Incorporation adds value to the Schengen acquis in two vital respects; it introduces (i) democratic accountability and (ii) judicial oversight - both at an EU level. Both were lacking in the Schengen system. The Schengen Convention enlarged the scope for executive action by establishing an Executive Committee empowered to adopt measures, largely in private, in areas having a direct impact on individual rights and freedoms. It made no provision for systematic parliamentary scrutiny of executive measures prior to their adoption. And although complaints could be brought before national courts, there was no mechanism for obtaining rulings on the interpretation and application of Convention provisions.

  49.    The danger of ad hoc approaches is evident. National parliaments, working in isolation and with varying degrees of access to information, have been unable to bring much influence to bear on the work of the Executive Committee. Even if national parliamentary committees have formal powers to issue opinions binding on their governments in relation to draft Executive Committee decisions, as is the case in Italy, "external constraints stemming both from a lack of information and political contingencies are extremely powerful"[64]. Critics have pointed also to "a structural frustration of judicial or semi-judicial control found everywhere in the Convention" and the damage this may do to the rule of law[65]. Without an EU-wide judicial authority to ensure consistency and certainty in the interpretation and application of the Convention, a patchwork of rules may emerge on matters of fundamental concern to individuals. Where there is a risk of conflicting interpretation by courts in different Schengen States, "the vital function of the court as guardian of the individual becomes paramount. Divergence in the exercise by national courts of that function may undermine human rights protection"[66].

  50.    The TEU, as amended by the Amsterdam Treaty, includes a statement in Article 6(1) that: "The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States". The European Court of Justice has an explicit role in ensuring, in those areas where it has jurisdiction, that the institutions of the EU respect fundamental rights guaranteed by the European Convention on Human Rights[67].

  51.    Incorporation will strengthen the role of the EU institutions in areas of Schengen co-operation. The Council of Justice and Home Affairs Ministers will replace the Executive Committee; the Commission and the European Parliament will have a formal role in shaping policy; and the European Court of Justice will exercise some degree of judicial control. These are significant changes which will apply to those parts of the Schengen acquis incorporated into the First or Third Pillars. The extent of democratic accountability and judicial oversight will nevertheless still be limited. The European Parliament will have a largely consultative role[68]. National Parliaments may express their views collectively, through the Conference of European Affairs Committees (COSAC), on any legislative proposals or initiatives relating to the establishment of an area of freedom, security and justice[69]. Opinions expressed by the EP and any contribution COSAC chooses to make will bind neither the Council nor national Parliaments. As for the Court of Justice, there are significant limitations to its jurisdiction and it will not, in any event, extend to "measures or decisions relating to the maintenance of law and order and the safeguarding of internal security"[70].


  52.    Agreement to incorporate the Schengen acquis into the European Union framework was reached at the Inter-Governmental Conference (IGC) which culminated in the signing of the Amsterdam Treaty on 2 October 1997. The Schengen Convention establishes a link between the free movement of persons and "flanking" measures to protect internal security. Member States agreed that Community procedures (i.e. First Pillar procedures) should apply to free movement issues, but not to the "flanking" security measures.

  53.    Each Pillar specifies its own procedural and institutional arrangements. Thus, procedural and institutional arrangements differ, according to the allocation to one Pillar or the other. An approach of "flexible incorporation" has been adopted in relation to Schengen, with some provisions being incorporated into the First Pillar, and others into the Third. Distribution of the acquis amongst the provisions of the EU Treaties shadows the new division of competences between the First (Community) and the Third (Intergovernmental) Pillar. At present, mechanisms exist to allow existing Member States who object to this division (Denmark, Ireland and the United Kingdom) to opt out. As we explain in Part 4, similar opt-outs will not be available to future EU Members.

  54.    At Amsterdam, Member States agreed to insert a new Title in the EC Treaty (Title IV) concerning visas, asylum, immigration and other policies related to the free movement of persons. Some of these matters had previously been dealt with in Title VI of the TEU - the Third Pillar. Title VI had to be revised to reflect new priority areas for inter-governmental co-operation following the transfer to the Community of competence for policy on asylum, immigration and external borders. The principal focus of Title VI now is police and judicial co-operation in criminal matters.

Title IV of the EC Treaty - A Community Policy on Visas, Asylum, Immigration and the Free Movement of Persons

  55.    The free movement of persons in an area without internal frontiers is a key objective of the new Title IV. It should be attained by 12 of the 15 EU Member States within five years of the Amsterdam Treaty entering into force[71]. Since this would jeopardise United Kingdom policy in favour of maintaining border controls, there is a special Protocol safeguarding the United Kingdom position (and that of Ireland, too, in the Common Travel Area) but authorising the Schengen States, in return, to exercise border controls on persons entering from the United Kingdom or Ireland[72]. A further Protocol sets out procedures to enable both Ireland and the United Kingdom to opt in to Title IV measures other than those concerned with border controls. But if either or both choose not to, then they will not be bound by the decisions made by the other Member States or by any rulings of the Court of Justice on Title IV measures[73].

  56.    The position concerning Denmark is different again. Denmark is a member of Schengen but objects to the transfer of any Schengen competences to the Community. With the exception of some measures relating to visas (which were already within the Community's competence), Denmark will not take part in any Title IV measures and, unlike the United Kingdom and Ireland, has no opt-in mechanism. The problem for Denmark arises when measures building on the existing Schengen acquis are adopted by the Council on the basis of provisions in Title IV of the EC Treaty. Denmark will then have six months from the date of their adoption to decide whether to implement these through its national law. If it does so, this will create obligations between Denmark and the 12 Schengen States (and the United Kingdom and Ireland if they also participate in the measures) under international rather than Community law. If Denmark decides not to implement the Title IV measures in its national law it must, with the other Schengen States, consider what further action may be necessary[74].

  57.    The procedures for adopting Title IV measures reflect Member States' caution in transferring areas of inter-governmental co-operation into the Community sphere. For a transitional period of five years, the usual Commission prerogative to initiate Community legislation is diluted to allow Member States to bring forward their own initiatives. These must be agreed unanimously (except for some visa matters) after consulting the EP. After five years, the Commission will have an exclusive right of initiative and the Council may unanimously decide to move to co-decision and qualified majority voting.

  58.    Title IV measures will come under the jurisdiction of the Court of Justice, but the Court's jurisdiction under the EC Treaty has been modified in two respects in relation to Title IV measures. First, the Court may give preliminary rulings only on references from national courts of last resort - those against whose decisions there is no further domestic remedy. This contrasts with the usual procedure enabling any national court to seek a ruling on questions of Community law if necessary to enable it to give judgment. The policy intention underlying this limitation on the Court's preliminary rulings jurisdiction is to secure the floodgates against a stream of asylum appeals. In addition, the Council, Commission or a Member State may now seek a prospective ruling on the interpretation of Title IV provisions or acts based on them. The second modification to the general jurisdiction of the Court is that the Court has no jurisdiction as regards internal border controls if these relate to the maintenance of law and order and the safeguarding of internal security[75].

Title VI of the TEU - Police and Judicial Co-operation in Criminal Matters

  59.    One of the defects of the Third Pillar was that there was uncertainty as to the legal effects of instruments based on it. This has been clarified in the revised Title VI which establishes two new types of legally binding instruments: framework decisions for harmonising criminal laws, where the Treaty permits, and decisions for any other purpose. This is in addition to conventions, which are retained as a third option. Unanimity remains the general rule for all Third Pillar measures except those which implement decisions. Both the Commission and Member States have a right of initiative and the European Parliament has, for the first time in the Third Pillar, a right to be consulted before the adoption of binding measures.

  60.    One innovation of the Amsterdam Treaty is to grant the Court of Justice a permissive jurisdiction to give preliminary rulings on questions of interpretation and validity in all areas covered by Title VI. Previously, jurisdiction had to be expressly conferred by individual conventions. Now, the Court's jurisdiction will be entirely dependent on each Member State making a positive declaration. Such a declaration may allow any domestic court in that Member State to refer a matter to the Court, or it may limit references in each case to the court against whose decisions there is no judicial remedy under national law. Whichever option is chosen, there is no obligation on any domestic court (even of last resort) to refer a matter. The Court of Justice has no jurisdiction to give a preliminary ruling on a reference from a court in a Member State which has not made a positive declaration (for example, the United Kingdom).

  61.    Only Member States and the Commission may challenge the validity of framework decisions or decisions. This contrasts with the position under the EC Treaty where the EP and individuals may, in certain circumstances, bring a direct action before the Court of Justice.

  62.    Finally, the Court's jurisdiction is excluded in any case concerning "the validity or proportionality of operations carried out by the police or other law enforcement services of a Member State or the exercise of responsibilities incumbent on Member States with regard to the maintenance of law and order and the safeguarding of internal security"[76].


  63.    The Schengen acquis will be incorporated into the First and Third Pillars by means of a Protocol (the "Schengen Protocol") in which the 15 EU Member States authorise the 13 Schengen States to "establish closer co-operation among themselves . . . within the institutional and legal framework of the European Union"[77]. All Schengen activity, past and future, will be contained within the EU Treaties. As a result, special arrangements are necessary for the two non-Schengen members of the EU (the United Kingdom and Ireland), for the two non-EU States cooperating with Schengen (Iceland and Norway), and for Denmark, a member both of the EU and of Schengen but opposed to any transfer to the Community of Schengen competences.

  64.    The Schengen Protocol envisages that some parts of the acquis will be integrated into the EC Treaty (First Pillar) and some into the revised Title VI of the TEU on police and judicial co-operation in criminal matters (the Third Pillar). It is the Council's task to agree, unanimously, the appropriate legal base in either or both Treaties for each element of the Schengen acquis[78]. It must do so before the entry into force of the Amsterdam Treaty as, from that date, the Schengen acquis will apply in those Schengen States already bound by it by virtue of the Protocol itself[79]. There is a default mechanism to ensure that, if the Council fails to agree the legal base for any element of the Schengen acquis, it will be incorporated into Title VI of the TEU[80]. According to Mr Eland (Home Office), this default to the Third Pillar would be "a temporary measure if agreement is not reached. Quite how that would work out I do not know. Hopefully it will not happen. It is certainly a possibility" (Q 34).

  65.    An Annex to the Schengen Protocol identifies the bare elements of the Schengen acquis. These are the 1985 Schengen Agreement, the 1990 Implementing Convention, the eight Accession Protocols and Agreements, the decisions and declarations of the Executive Committee and the acts of its subordinate bodies. The first step in incorporating Schengen within the EU framework is to produce a full list identifying the specific provisions, decisions and declarations that comprise the acquis. The second step is to find a legal base for each of these in the EC Treaty or the TEU. The two draft Council Decisions which form the basis of this enquiry are intended to accomplish those two tasks. The first draft Decision identifies the relevant acquis for the purposes of incorporation, and the second allocates each provision so identified to a legal base in the EU Treaties. It is these two draft Decisions which form the basis of our present enquiry.


The First Draft Decision: Defining the Schengen Acquis to be Incorporated

  66.    The first draft Decision (Schengen 14, Rev 1) is printed in Appendix 3 of this Report. It is based on Article 2(1) of the Schengen Protocol which requires the 13 EU Member States party to the Schengen agreements to define the relevant acquis for incorporation into the EU Treaties. The substance of the draft Decision is divided between two Annexes.

  67.    Annex A establishes a list, still incomplete a year after the agreement of the Amsterdam Treaty, of the acts constituting the Schengen acquis. This includes the decisions and declarations of the Schengen Executive Committee listed by document reference number only, with no indication as to their content. Our own summary of the titles of these decisions and declarations is in Appendix 6. Acts of subordinate bodies also form part of the acquis but these have not yet been identified.

  68.    Annex B identifies redundant provisions of the acquis which will not, according to the Council, require a legal base in the EU Treaties. A provision will not need to be allocated to a legal base for any one of the following reasons:

    (i) it is no longer operative;

    (ii) it has been replaced by provisions of Community law or other acts applicable to all Member States;

    (iii) it remains an area of exclusive national competence;

    (iv) it is not intended to have legal effects.

  69.    Basing itself on these criteria, the Council does not intend to incorporate into the EU Treaties any of the provisions of the 1985 Schengen Agreement or the Protocols of Accession. Most provisions of the 1990 Schengen Convention (and some of the provisions of the Accession Agreements) will be incorporated, but there are some important exceptions covering areas such as asylum (Articles 28-38 and 135), extradition (Article 60), firearms and ammunition (Articles 77-91), transport and movement of goods (Articles 120-125), and the role and functioning of the Executive Committee (Articles 131-133). We explore the reasons for these exceptions in Section B of Part 4.

  70.    The Council has not yet established which acts, decisions or declarations of the Executive Committee or its subordinate bodies will need to be incorporated into the EU Treaties.

The Second Draft Decision: Allocation to a Legal Base in the EU Treaties

  71.    Once the 13 Schengen States have established the relevant acquis for incorporation into the EU Treaties, all 15 EU Member States must agree on its allocation to specific Articles in the EC Treaty or TEU[81]. This is the purpose of the second draft Decision (Schengen 11, Rev 2), printed in Appendix 3 of this Report. The allocation is based on the new numbering of Treaty Articles introduced by the Amsterdam Treaty.

  72.    According to the Home Office, "allocation of a legal base, where appropriate, is made on the basis of the content of the Schengen provision, and its match with an appropriate Article in the Treaty establishing the European Communities, the Treaty on European Union, or the Schengen Protocol. Where the Schengen provision contains both First Pillar and Third Pillar elements, a dual legal base is allocated" (p 45).

  73.    The second draft Decision focuses mainly on the 1990 Schengen Convention. The proposed allocation is set out in Annex A of the draft. The Council has determined that about two-thirds of the Articles of the Convention to require a legal base in the EU Treaties. The letters "P.M." in the draft Decision indicate that a legal base has not yet been allocated to the provisions concerning the Schengen Information System (Articles 92-119) and the territorial scope of the Convention (Article 138). The number of excised footnotes suggests that some Member States still have a number of reservations as to the allocation made for the remaining Convention Articles.

  74.    Annex B sets out the allocation in relation to the Accession Agreements with the eight states which have joined the original five signatories since 1985. No legal bases have yet been allocated to the decisions, declarations or acts of the Schengen Executive Committee or its subordinate bodies (Annexes C and D).

61   First recital of the Preamble to the 1985 Schengen Agreement. Back
62   A view reinforced by Article 142 of the Convention which envisages that the latter may be replaced by agreements on the completion of an area without internal frontiers involving all EU Members.  Back
63   "Defining the Schengen Acquis", 21st Report, 1997-98, HL Paper 87, p 2 of the Minutes of Evidence. Back
64   Fabio Evangelisti, Chairman of the Italian Parliamentary Committee monitoring the Schengen and Europol Conventions, in a speech at King's College London on 19 June 1998. Back
65   Essay by P. Boeles on "Schengen and the rule of law" in a report by the Dutch Standing Committee of Experts on International Migration, Refugee and Criminal Law (the Meijers Committee) on Schengen in 1992. Back
66   Elspeth Guild: "The Schengen Agreement: A Study in the Legitimacy of Identity and Separation", published in a 1997 Dutch study on the Schengen agreements, "Het Akkoord van Schengen en Vreemdelingen", edited by P.R. Giuseppin and W.A.M. Jansen. Back
67   European Convention for the Protection of Human Rights and Fundamental Freedoms, signed on 4 November 1950, and Articles 6(2) & 46(d) of the TEU. Back
68   Article 39 of the TEU and Article 67 of the EC Treaty, as renumbered by the Amsterdam Treaty. Back
69   Protocol on the role of national Parliaments in the EU, annexed to the EC Treaty and the TEU. Back
70   Article 2(1), third paragraph, of the Schengen Protocol. See also Article 35 of the TEU and Article 68 of the EC Treaty, as renumbered by the Amsterdam Treaty. Back
71   Article 61(a) of the renumbered EC Treaty. Back
72   Protocol on the application of certain aspects of Article 7a of the Treaty establishing the European Community to the United Kingdom and Ireland, annexed to the EC Treaty and the TEU.  Back
73   Protocol on the position of the United Kingdom and Ireland, annexed to the EC Treaty and the TEU. Back
74   Protocol on the position of Denmark, annexed to the EC Treaty and the TEU. Back
75   Articles 67 & 68 of the renumbered EC Treaty. Back
76   The provisions on the Court's jurisdiction in Title VI are in Article 35 of the renumbered TEU. Back
77   Article 1 of the Protocol integrating the Schengen acquis into the framework of the European Union, annexed to the EC Treaty and the TEU. Back
78   Article 2(1), second sub-paragraph, of the Schengen Protocol. Back
79   Article 2(1), first sub-paragraph, of the Schengen Protocol. Back
80   Article 2(1), fourth sub-paragraph, of the Schengen Protocol. Back
81   Article 2(1), second sentence of the second sub-paragraph, of the Schengen Protocol. Back

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