Explanatory Note on two draft Council Decisions
concerning the incorporation of Schengen into EU/EC structures,
as provided for in the Treaty of Amsterdam submitted by the Home
Office in May 1998.
This Explanatory Note and attached documents
are being made available to Parliament in pursuance of the Government's
commitment to keeping Parliament informed of the work being carried
out in preparation for incorporation of the Schengen acquis into
the European Union and European Community Treaty framework.
2. The attached documents are two draft
Decisions of the Council which will, respectively, identify the
whole Schengen acquis and redundant provisions (Schengen 14, Rev
1), and allocate a Treaty base to the extant Acquis (Schengen
11, Rev 2). The main content of both the draft Decisions is located
in annexes. So far the Schengen Convention and Accession Agreements
and Protocols have been considered and are covered in the drafts.
Current work is examining the decisions and other acts of the
Schengen Executive Committee, and the decisions and declarations
of the organs upon which the Executive Committee has conferred
decision-making power. 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.
Areas which have been highlighted in discussions in the Schengen
Working Group as giving rise to difficulties have, in addition
to their allocation of a legal base, been clarified in recitals
at the beginning of the Decision and in supplementary, explanatory,
text in the annexes. Although these texts are revised versions,
they are the first authoritative texts which are available and
are therefore being made available to Parliament. In accordance
with our usual practice, reservations by individual Member States
have been deleted.
3. The Home Secretary has responsibility
for the operation of the United Kingdom's immigration controls
and overall responsibility for this document. The Foreign Secretary
has overall responsibility for the ratification and implementation
of the Amsterdam Treaty.
(i) Legal and procedural basis
4. Article 2(1) first paragraph of the Schengen
Protocol, states that from the date of entry into force of the
Treaty of Amsterdam, the Schengen aquis shall immediately apply
to the thirteen Member States referred to in Article 1 of the
Schengen Protocol. Article 2(1) second paragraph, first sentence,
states that the Council, acting by the unanimity of its members
referred to in Article 1, shall take any measure necessary for
the implementation of this paragraph.
5. Article 2(1) second paragraph, second
sentence of the Schengen Protocol states that the Council, acting
unanimously, shall determine, in conformity with the relevant
provisions of the Treaties, the legal basis for each of the provisions
or decisions which constitute the Schengen acquis.
(ii) European Parliament procedure
6. There is no provision in the Schengen
Protocol for the European Parliament either to be kept informed,
or to take part in the desision-making of the Council. However,
an informal undertaking has been given by the Minister of State
at the FCO to keep the European Parliament informed.
(iii) Voting procedure
7. For the first draft Decision (Schengen
14, Rev 1) voting will be in accordance with Article 2(1) second
paragraph first sentenceby the Council acting by the unanimity
of the EU Member States with the exception of the UK and Ireland.
8. For the second draft Decision (Schengen
11, Rev 2) voting is by the Council acting unanimously at 15 in
accordance with Article 2(1) second paragraph, second sentence
of the Schengen Protocol.
9. The draft Decisions would not require
any changes to United Kingdom legislation. Any change would be
dependent on any decision concerning UK participation in Schengen.
(Article 4 of the Schengen Protocol allows the UK to seek to opt
into existing Schengen provisions, subject to the unanimity of
the other Member States.)
10. There are no direct consequences for
the United Kingdom arising from the two draft Decisions since
by virtue of the Treaty of Amsterdam the United Kingdom is not
subject to the automatic application of the Schengen acquis.
11. However, the Treaty of Amsterdam also
provides for the United Kingdom to be able to take part in Schengen
cooperation if it wishes. It is therefore important for the UK
to ensure that the Schengen acquis is properly identified and
that the allocation of a legal base is correct. The allocation
as between the First and Third Pillars will be of particular importance;
even if the UK does not ultimately participate in a provision,
an inappropriate allocation to the First Pillar may risk the extension
of Community competence into subjects properly covered by inter-governmental
cooperation in the Third Pillar or solely within the competence
of individual Member States.
12. The draft Decisions are a technical,
legal exercise, paving the way for the incorporation of Schengen.
The draft Decisions are not concerned with the actual operation
or running of Schengen which will remain an intergovernmental
matter for the Schengen states until ratification of the Treaty
of Amsterdam. Any immediate financial implications for the United
Kingdom would be the result of central administrative costs for
work undertaken by the structures of the European Union. Other
financial implications would depend upon the nature and extent
of UK participation (if any) in Schengen.
13. The Schengen acquis will be incorporated
at the time of the ratification of the Treaty of Amsterdam, if
necessary by the fail-safe mechanism.
Secretary of State for the Home Department
21 May 1998