Select Committee on European Communities 31st Report

Progress made in the allocation process

  143.    The second draft Decision sets out the allocation of a legal base in the EU Treaties to those parts of the Schengen acquis which the Council has decided to incorporate. There are three options. A Schengen provision may be matched with an Article in the EC Treaty; the Treaty on European Union (TEU); or based on the Schengen Protocol. Sometimes a Schengen provision is split between two legal bases, so that part is to be implemented in the First Pillar and part in the Third. And sometimes a Schengen provision is given a dual base; that is to say, a base in both, or either, of the First and Third Pillars. This enables the provision to be implemented in both the First and Third Pillars. The Committee notes that the draft Decisions contain a significant number of excised footnotes. This suggests that some Member States continue to have reservations about the proposed allocation.

  144.    Mr Eland said that the definition and allocation of the Schengen acquis would not be completed under the United Kingdom Presidency of the EU. The sheer scale of the acquis and the complexity of dividing a single body of law between the EC Treaty and TEU was a challenge which left "room for argument over that attribution". Discussion would continue under the Austrian Presidency as "we have not even had a first full run through of the Executive Committee decisions yet" (QQ 1, 4).

  145.    As the Member States which had reservations were a "small minority", Mr Eland did not expect the draft Decisions to change substantially. Most of the reservations could be worked through and a large proportion lifted if one Member State (not the United Kingdom) took a political decision to shift its position. The exception "that does not fit into that pattern is the Schengen Information System where there are some more substantive disagreements". (QQ 12, 13)

The Schengen Information System: First or Third Pillar?

  146.    The purpose of the Schengen Information System (SIS), as explained in paragraph 28 above, is to facilitate the application of the Schengen Convention provisions on the movement of persons. This includes the storage of data relating to immigration matters as well as other information to enhance cross-border police co-operation. The allocation of a legal base to the SIS is, according to Mr Eland, "the single most difficult outstanding issue on the whole dossier, precisely because quite a wide number of Member States do see considerable difficulties in assigning to a single system a dual legal base. However, the reality of Amsterdam is that there is a First Pillar purpose created for immigration and a Third Pillar purpose for police co-operation. It is difficult to see whether one can avoid splitting the legal bases". The second draft Decision does not attempt even a tentative allocation of legal base to the SIS. (Q 28)

  147.    The consequences of dividing the SIS between legal bases in the First and Third Pillars were spelt out by Mr Eland in our last enquiry. He foresaw "a practical nightmare" if the management of the SIS were to take place under two different legal bases with two sets of procedures[97]. Mr Eland explained that a number of options were being considered to avoid this division. However, "there is no clear way forward that has yet been identified". Efforts had been directed towards building a consensus around one or other of the various options. (Q 28)

  148.    Incorporation of the SIS illustrates the difficulties inherent in basing measures to achieve an area of freedom, security and justice in separate Pillars, each with their own decision-making procedures and regulatory frameworks. The EC Data Protection Directive establishes general rules applicable in all EU Member States for the processing of personal data within areas of (First Pillar) Community competence. These rules do not apply to the Third Pillar or to processing operations concerning public security, defence, State security, and the activities of the State in areas of criminal law[98]. Schengen States must ensure at national level a degree of protection of personal data at least equal to the principles set out in the 1981 Council of Europe Convention and the 1987 Recommendation on the use of personal data in the police sector[99]. These establish a base line for national data protection regimes but do not ensure a uniform level of protection throughout the Schengen area. More generally, an ad hoc approach to data protection has developed in the Third Pillar, with specific data protection rules developed for each new instrument.

  149.    The options for allocating a legal base to the SIS raise some critical questions of coherence and consistency. How feasible is it at a technical or practical working level to separate data to be used for Community purposes from data intended for use in areas of inter-governmental co-operation? In some cases, the information may serve a dual purpose. Even if separation of data could be achieved, there are likely to be data users whose responsibilities straddle the division of competences between the two Pillars. Different rules on access to and use of data will be hard to apply or monitor. Moreover, there may be grey areas where it is not clear whether information falls within the Community or inter-governmental sphere.

  150.    We were told during our last enquiry that the Home Office would need to consider the advantages of United Kingdom participation in the Schengen Information System (SIS), particularly in the areas of police co-operation and illegal immigration[100]. There is some co-operation between UK and French officials in the Channel Tunnel context, which may include the exchange of data derived from the SIS. However, only members of the SIS have full access rights (p 12). It is not clear how easily individuals in the United Kingdom could exercise access rights to data stored in the SIS which is exchanged between the British and French authorities.

  151.    The huge number of British citizens now crossing the Channel implies that information on a significant number of British citizens will be held on the SIS. Whether or not British authorities have direct access to it, therefore, the SIS will have direct implications for some citizens of the United Kingdom as they go about their business within the EU. The Minister stated that data protection "was an area we would look at very closely with a view to seeing whether we would participate fully or whether there was an arrangement that we could enter into to make sure that the position of our own citizens was safeguarded". (Q 56)

  152.    The Committee also expressed concern at anecdotal evidence they had heard regarding the possibility of storing data in the SIS which revealed racial origin, and the mis-use of this information to deny or challenge the entry of ethnic minorities from the United Kingdom into the Schengen area. The Minister observed that, as a result of the Amsterdam Treaty, there would be a new prohibition of discrimination based on racial or ethnic origin in the EC Treaty and a new legal base in the Third Pillar for measures to combat racism and xenophobia. She noted the important role that the Court of Justice had played in advancing gender equality through its interpretation of Treaty provisions on equal pay for work of equal value performed by men and women. (Q 58)

  153.    The Committee considers it to be essential that a clear route is marked for individuals seeking access to data held on them in the SIS. If allocation to a dual legal base in the First and Third Pillars is unavoidable, there should be an equivalent level of data protection in each Pillar and coherent and complementary rules for individuals to exercise rights of access and obtain legal remedies if data held on the SIS is incorrect or has been mis-used. Data protection requirements should be at the forefront of any other options under consideration.

  154.    The Committee welcomes the commitment to prohibiting racial discrimination that is demonstrated in the new Treaty provisions. We fear, however, that the role of the Court in ensuring a just and even application of the principle of non-discrimination will be undermined if the SIS is allocated to a legal base in the Third Pillar. We regret that the Government seem set on continuing the policy of denying courts in the United Kingdom the possibility of obtaining rulings on any Third Pillar matters, including those seeking to eradicate racism.

Choice of Legal Bases

  155.    The importance of the allocation of the Schengen acquis to a legal base in the EC Treaty or TEU is two-fold. First, incorporating concrete measures will illustrate the extent of the Community's competence under the new Title IV of the EC Treaty on the one hand, and the areas reserved to Member States within the framework established in Title VI of the TEU on the other hand. Second, this is likely in turn to influence the United Kingdom in deciding whether to exercise its right to opt in to measures building on the acquis.

  156.    The density and complexity of the Schengen acquis preclude any detailed analysis of the allocation and its implications for the United Kingdom at this stage. We have urged the Home Office (so far without success) to produce a more accessible and comprehensible breakdown of the key elements of the acquis which also considers the arguments for and against United Kingdom participation. The Home Office have undertaken to provide an explanatory text on Border Controls by the end of July 1998. We wish to draw attention at this stage to certain more detailed and technical concerns raised in correspondence by interested individuals and organisations who offered their preliminary comments on the two draft Decisions.

(i) Splitting Acquis provisions between Pillars

  157.    Some provisions of the acquis, expressed as a single Article in the Schengen Convention, have been split between two Pillars. So, for example, under Article 27(1) penalties must be imposed on any persons assisting the entry of aliens contrary to the laws of any one of the Schengen States. This provision has been allocated to a legal base in the EC Treaty, since the crossing of external borders is to be governed by Community law. By contrast, Article 27(2) and (3) which concern the notification and prosecution of unlawful activities under Article 27(1) are allocated to the TEU. In the Schengen system, the three paragraphs of Article 27 are complementary, each serving to reinforce the others. Such incorporation diminishes legal and procedural coherence by applying two different sets of rules in the First and Third Pillars. Moreover, the effective enforcement of the penalties required under Community law will depend, at least in part, on action taken under the third Pillar.

(ii) Dual Legal Bases

  158.    Some provisions of the Schengen Convention such as Articles 126-128 on the protection of personal data other than that stored in the SIS have been allocated two legal bases, one in the EC Treaty and the other in the TEU. The Home Office say this is necessary since Schengen covers First and Third Pillar matters. If further measures are required to build on the Schengen provisions, they will be adopted in accordance with the relevant procedures in each Pillar, but "it is not inconceivable that there may need to be parallel legal instruments where both First and Third Pillar competences are involved". The result is substantively identical provisions in two Pillars subject to different procedural requirements (p 11).

(iii) Too Broad a Legal Base?

  159.    Most of the Schengen provisions on visas are allocated to Article the new 62(2)(b) of the EC Treaty which provides for the adoption of rules on short-term visas. The Commission has an exclusive right of initiative and there is qualified majority voting for some, but not all, measures based on Article 62(2)(b). The allocation does not make clear which procedures will apply to each element of the Schengen acquis.

  160.    The Home Office did not think this was significant. The question of exclusive right of initiative and voting arrangements would only arise for future measures which would be based on the relevant part of Article 62(2)(b) (p 11).

(iv) An Inappropriate Legal Base?

(a) Articles 95 and 152 of the EC Treaty

  161.    Most of the Schengen provisions which have been allocated to a legal base in the EC Treaty come within the new Title IV, but there are a few exceptions. The first is Article 75 of the Convention on the movement of persons carrying narcotic drugs intended for medical treatment which has been allocated to Article 95 (formerly 100a) of the EC Treaty. This provides for the approximation of laws to establish the internal market, but expressly excludes measures relating to the free movement of persons. According to the Home Office, the purpose of Article 75 of the Convention is the licit carriage of drugs as goods by persons who require them on health grounds, rather than free movement of persons as such.

  162.    The second exception is Article 76 of the Convention. The first and second paragraphs provide for the monitoring of narcotic drugs to ensure that a laxer policy of tolerance in one Schengen State does not undermine a more repressive regime in another. They, too, are allocated to Article 95 of the EC Treaty. The third and fourth paragraphs of Article 76 on notification of measures taken to monitor the legal trade in narcotic drugs are allocated to Article 152 (formerly 129) of the EC Treaty which concerns public health.

  163.    Finally, Articles 126-128 of the Convention on the protection of personal data not held in the SIS are allocated to Article 95 of the EC Treaty. The Home Office explained that this is the legal base for the EC Data Protection Directive (p 11).

(b) Article 30 of the TEU

  164.    New Article 30 of the TEU provides for common action in the field of police co-operation. Article 30(1) sets out operational and other forms of co-operation between law enforcement services of the Member States. Article 30(2) provides for co-operation through Europol. Although most of the Schengen provisions on police co-operation are allocated to Article 30(1) of the TEU, some are allocated to Article 30 TEU as a whole. This might suggest that a specific role is envisaged for Europol in some areas of Schengen co-operation but not in others. It also raises practical questions such as whether the United Kingdom, a full participant in Europol, may have equal access through Europol to information and intelligence held by the Schengen States.

  165.    The Home Office saw Europol as being of "indirect relevance" to the type of police co-operation envisaged by Article 39 of the Convention (essentially mutual assistance between police authorities). Just as there was nothing to preclude the interaction between Treaty provisions on Europol and Schengen, nor was there any requirement to specify what these would be (p 11).

  166.    The interaction between Treaty provisions on Schengen and Europol raises particular issues for the United Kingdom. The Committee would wish to be informed of any proposal for Europol to involve itself in areas of police co-operation arising from provisions of the Schengen acquis. This is particularly the case if links are to be established between Europol's central data bank and the Schengen Information System.[101]


  167.    The Committee is aware that the 11 topics dealt with in this Section of Part 4 are nothing more than the tip of an iceberg. There will undoubtedly be many more areas of concern, and indeed specific allocations, which Member States will wish to scrutinise and analyse. The diverse nature of the points raised in this Section illustrates the difficulty of examining this diverse and complicated body of law. As the Minister observed, "It certainly is a complex process and further questions do often seem to arise in the course of such a process". (Q 39) Our questions, and the answers we have received, illustrate not only the complexity of this process, but also a degree of confusion as to the precise nature and scope of the acquis. This in turn, makes it difficult to assess the implications of incorporation for the United Kingdom. Presumably, other Member States are faced with the same problem.

  168.    We agree with the Minster that "legal certainty goes hand-in-hand with the maximum degree of openness". (Q 46) We are encouraged to hear that these two principles - openness and legal certainty - will guide the Government's approach to incorporation of the acquis. However, we remain concerned that the only certainty at present is that the acquis will enter into force with the Amsterdam Treaty. We find this fact hard to reconcile with the need to bring the Union closer to the people. At the Cardiff European Council in June 1998, EU Heads of State and Government agreed that "a sustained effort is needed by the Member States and all the institutions to bring the Union closer to people by making it more open, more understandable and more relevant to daily life". The Schengen acquis is relevant to the daily life of all EU citizens. It touches on fundamental rights and freedoms of individuals. It will be a crucial element in developing the area of freedom, security and justice envisaged in the Amsterdam Treaty. Here is a golden opportunity to turn rhetoric into reality. We believe that now is the time for Governments and the Council to demonstrate their commitment to openness by publishing the acquis in a form which is accessible and intelligible for citizens in the EU. We urge the Government to take the lead in explaining to United Kingdom citizens what the incorporation of the acquis will mean for them and how it will affect future United Kingdom policy-making in such critical areas as asylum, immigration, and police co-operation in Europe.


  169.    The Committee believes that the matters considered in this Report raise important questions to which the attention of the House should be drawn, and we make this Report to the House for debate.

97   "Defining the Schengen Acquis", 21st Report 1997-98, HL Paper 87, Q 27 of the Minutes of Evidence. Back
98   Article 3 of the EP and Council Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data.  Back
99   See footnotes 38 and 49 above. Back
100   See Q 21 of our 21st Report, 1997-98, HL Paper 87. Back
101   See also the Committee's Report Europol: Third Country Rules (29th Report, session 1997-98, HL Paper 135). Back

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