Select Committee on European Communities 31st Report


  (i)  The relevant Treaty provisions

  There are three substantive Treaty bases (Articles 30-32) and one procedural one (Article 34).

  Article 30(1) provides for common action in the field of police cooperation, including:

    (a)  operational cooperation between the competent authorities, including the police, customs and other specialised law enforcement services of the Member States in relation to the prevention, detection and investigation of criminal offences;
    (b)  the collection, storage, processing, analysis and exchange of relevant information, including information held by law enforcement services on reports on suspicious financial transactions, in particular through Europol, subject to appropriate provisions on the protection of personal data;
    (c)  cooperation and joint initiatives in training, the exchange of liaison officers, secondments, the use of equipment, and forensic research;
    (d)  the common evaluation of particular investigative techniques in relation to the detection of serious forms of organised crime.
  Article 30(2) requires the Council to promote cooperation through Europol and, within five years of the Amsterdam Treaty's entry into force, to:
    (a)  enable Europol to facilitate and support the preparation, and to encourage the coordination and carrying out, of specific investigative actions by the competent authorities of the Member States, including operational actions by joint teams comprising representatives of Eurpol in a support capacity;
    (b)  adopt measures allowing Europol to ask the competent authorities of the Member States to conduct and coordinate their investigations in specific cases and to develop specific expertise which may be put at the disposal of Member States to assist them in investigating cases of organised crime;
    (c)  promote liaison arrangements between prosecuting/investigating officials specialising in the fight against organised crime in close cooperation with Europol;
    (d)  establish a research, documentation and statistical network on cross-border crime.
  Article 31 provides for common action on judicial cooperation in criminal matters, including:
    (a)  facilitating and accelerating cooperation between competent ministries and judicial or equivalent authorities of the Member States in relation to proceedings and the enforcement of decisions;
    (b)  facilitating extradition between Member States;
    (c)  ensuring compatibility in rules applicable in the Member States, as may be necessary to improve such cooperation;
    (d)  preventing conflicts of jurisdiction between Member States;
    (e)  progressively adopting measures establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the fields of organised crime, terrorism and illicit drug trafficking.
  Article 32 requires the Council to "lay down the conditions and limitations under which the competent authorities referred to in Articles 30 and 31 may operate in the territory of another Member State in liaison and in agreement with the authorities of that State".

  Article 34(1) requires Member States to "inform and consult one another within the Council with a view to coordinating their action. To that end, they shall establish collaboration between the relevant departments of their administrations".

  Article 34(2) sets out the instruments and procedures enabling the Council to take measures in the field of police and judicial cooperation in criminal matters. The instruments available to the Council are:

    (a)  common posititons—these define the Union's approach to a particular issue;
    (b)  framework decisions—these are used to approximate Member States' laws and regulations. Like EC Directives, they are binding on Member States as to the result to be achieved but leave to national implementing authorities the choice of form and methods. Unlike Directives, they are not capable of having direct effect.
    (c)  decisions—these are used for purposes other than approximating national laws, are binding on Member States, but do not have direct effect.
    (d)  conventions—these are established by the Council but must be approved in accordance with the constitutional requirements of each Member State.
  As regards procedures, any Member State or the Commission may bring forward an initiative, but it can only be adopted with the unanimous consent of the Council. There are exceptions. Measures implementing decisions shall be adopted by a qualified majority comprising at least 10 Member States. In the case of conventions, implementing measures shall be adopted by a majority comprising two-thirds of the Contracting Parties. Once at least half of the Member States have completed their domestic procedures for approving conventions, then they will enter into force for those Member States.

(ii)  Allocation of the Schengen acquis to TEU provisions

Articles 30 and 34 of the TEU

Summary of Schengen provisions allocated to Articles 30 and 34

  Convention Article 39: this is in the first Chapter of Title III on police and security, and deals with police cooperation.

  Article 39 provides for mutual assistance between police authorities in the prevention and detection of criminal offences. Where such assistance is requested from a police authority in another Schengen State, it must not involve "the application of measures of constraint". If a Schengen State has provided written information in response to a request for assistance, it must give its consent to that information being used as evidence of the criminal offence.

  Requests for assistance should normally be channelled through the central bodies responsible in each Schengen State for international police cooperation. Special arrangements may be established for border regions, and neighbouring Schengen States may also enter into more detailed bilateral agreements.

Articles 30(1) and 34 of the TEU

Summary of Schengen provisions allocated to Articles 30(1) and 34

  Convention Articles 44, 45, 46, 47, 129, 130: Articles 44-47 come within Chapter 1, entitled "police cooperation", of Title III on police and security cooperation. Articles 129-130 are in Title VI on protection of personal data.

  Article 44 sets out the technical means for ensuring "the rapid transmission of information for the purposes of cross-border surveillance and pursuit". These include the installation of telephone, radio and telex lines and other direct links to facilitate police and customs cooperation. Further measures are also envisaged.

  Under Article 45, Schengen States must introduce rules requiring persons running any commercially rented establishment or offering accommodation to ensure that aliens (meaning, in this context, any foreign national from another Schengen or EU State or a third State) complete and sign declaration forms and produce a valid identity document. The forms will be kept for the competent national authorities, and may be sent to them if necessary "to prevent threats, for the purposes of initiating criminal proceedings or to ascertain what has happened to persons who have disappeared or who have been the victim of an accident".

  Article 46 provides for the exchange between Schengen States of "any information which may be of interest . . . in helping prevent future crime and offences against or threats to public policy and security", even in the absence of a specific request for assistance. This will usually be via a central designated body, but in urgent cases, the police authorities concerned may exchange information directly.

  Article 47 allows Schengen States to conclude bilateral agreements on the secondment of liaison officers to each others' police authorities. It sets out the type of assistance they will provide, their tasks and responsibilities. Liaison officers seconded to third States may represent the interests of one or more Schengen States and share information with them.

  Article 129 sets out the rules applying to the transmission of personal data under the provisions on police cooperation. Schengen States must ensure a level of protection in line with the 1987 Council of Europe Recommendation R(87) 15 regulating the use of personal data in the police sector. There are some additional restrictions on the use of personal data supplied voluntarily (without a formal request) by one Schengen State to another under Article 46.

  It would seem, under Article 130, that in the case of liaison officers seconded to another Schengen State, the data protection rules would apply only in respect of personal data transmitted back to the State which seconded them.

Articles 30, 31 and 34 of the TEU

Summary of Schengen provisions allocated to Articles 30, 31 and 34

  Convention Article 71, declaration 3 of the Final Act: Article 71 is in Chapter 6, entitled "narcotic drugs" of Title III on police cooperation.

  Article 71 seeks to ensure that all Schengen States adopt administrative and penal measures to prevent and punish illicit trafficking, illegal export, sale, supply and handling of narcotic drugs and psychotropic substances, including cannabis. They must also increase checks on persons, goods and means of transport at their external borders to prevent illegal imports, and carry out surveillance on places known to be used for drug trafficking.

  Declaration 3 of this Final Act states that if the national drugs policy of a Schengen State derogates from the sanctions-based approach set out in Article 71, the other Schengen States shall adopt administrative measures and penal sanctions to prevent and penalise illicit imports or exports to or from their territories.

Articles 30(1), 31 and 34 of the TEU

Summary of Schengen provisions allocated to Articles 30(1), 31 and 34

  Convention Articles 27(2) and (3), 73: Article 27 is in Chapter 6 of Title II on the abolition of checks at internal borders and movement of persons. Article 73 is in Chapter 6 of Title III on police cooperation and concerns narcotic drugs.

  Article 27(2) and (3) follow on from the requirement in Article 27(1) to impose penalties on any person who, for profit, assists aliens to enter or reside in a Schengen State contrary to the immigration and residence rules in force there. The aim is to make it easier to secure prosecution of such persons if they are in another Schengen State.

  Article 73 requires Schengen States to adopt measures permitting controlled deliveries of drugs, with the proviso that prior authorisation will be required for each operation and that each Schengen State will be responsible for and control any delivery within its territory.

Articles 31 and 34 of the TEU

Summary of the Schengen provisions allocated to Articles 31 and 34

  Convention Articles 54, 55, 56, 57, 58, 72: Articles 54-58 are in Chapter 3 of Title III on police and security, and concern the application of the non bis in idem principle. Article 72 is in Chapter 6 of the same Title and concerns narcotic drugs.

  Article 54 sets out the basic principle that a person on whom final judgment has been passed and who has been sentenced in one Schengen State may not be prosecuted in another for the same offence. Article 55 provides a number of exceptions to this rule, but these can only be taken up by means of a declaration at the time of ratifying, accepting or approving the Convention. Declarations in relation to any one of the exceptions may be withdrawn at any time.

  If, under one of the exceptions, further proceedings are brought in a Schengen State other than the one in which final judgment has been given, and these result in a custodial sentence, Article 56 provides that its length must be reduced to take into account time already served.

  Article 57 enables the competent authorities in Schengen States to request and exchange information regarding individuals accused of an offence to ascertain whether they have been tried elsewhere. Article 58 makes clear that the application of the non bis in idem principle in the Schengen context does not affect broader national provisions on its effect in relation to legal decisions taken abroad.

  Article 72 requires Schengen States to enact domestic legislation permitting the seizure and confiscation of assets deriving from illicit drug trafficking.

Articles 31(a) and 34 of the TEU

Summary of Schengen provisions allocated to Articles 31(a) and 34

  Convention Articles 48, 49, 50, 51, 52, 53, 67, 68, 69: Articles 48-53 are in Chapter 2 of Title III on police and security, and concern mutual assistance in criminal matters. Articles 67-69 are in Chapter 5 of the same Title and concern transfer of the enforcement of criminal judgments.

  The Convention Articles on mutual assistance in criminal matters are intended to supplement various international instruments covering the same area (Article 48).

  Article 49 sets out the circumstances in which mutual assistance shall be given.

  Article 50 provides for mutual assistance in fiscal matters, such as evasion of excise duties, VAT or customs duties.

  Under Article 51, letters rogatory for search or seizure must be treated as admissible, except in the two circumstances listed.

  Article 52 provides for procedural documents to be sent directly by post to persons who are in the territory of another Schengen State.

  Article 53 covers the channels which may be used for requesting assistance.

  Articles 67-69 supplement the provisions of the 1983 Council of Europe Convention on the transfer of sentenced persons for those Schengen States Parties to it. One Schengen State may, in certain circumstances, "take over" the enforcement of a sentence or detention order given in another. Such a transfer does not require the consent of the person on whom the sentence or detention order has been imposed.

Articles 31(b) and 34 of the TEU

Summary of Schengen provisions allocated to Articles 31(b) and 34

  Convention Articles 59, 61, 62, 63, 64, 65, 66: all these Articles are in Chapter 4 of Title III on police and security, and concern extradition. They are intended to supplement the 1957 European Convention on Extradition (Article 59). The provisions cover the type of offences in respect of which extradition may be sought, the appropriate channels for communicating requests, and the possibility of dispensing with formal extradition proceedings.

Articles 32 and 34 of the TEU

Summary of the Schengen provisions allocated to Articles 32 and 34

  Convention Articles 40, 41, 42 and 43: these are in Chapter I of Title III on police and security, and concern police cooperation.

  Article 40 provides for the possibility of cross-border surveillance of persons suspected of involvement in an extraditable offence. Police officers wishing to continue their surveillance beyond the border must, as a general rule, obtain prior authorisation. This may be subject to conditions. If, however, "for particularly urgent reasons" police officers have been unable to obtain prior authorisation and the surveillance concerns a person suspected of having committed a serious offence (listed in paragraph 7 of Article 40), they may continue beyond the border. Surveillance must cease if authorisation has not been obtained within five hours of crossing the border.

  Article 40(3) lists six general conditions with which officers conducting a cross-border surveillance must comply. These assume a familiarity not only with the Convention rules but also with the laws of the country in which they are operating. Officers may carry their service weapons, but must not use them except "in cases of legitimate self-defence". They have no right of entry into private homes, and no right to challenge or arrest the person under surveillance.

  Article 41 establishes a right, in certain circumstances of "hot pursuit" from one Schengen State to another. This right arises only in relation to an individual caught in the act of committing, or involved in, one of the offences listed in paragraph 4, or who is being pursued after escaping from temporary custody or while serving a custodial sentence. Prior authorisation is not required, either if notification is impossible because of the "particular urgency" of the situation, or police in the neighbouring State would be unable to reach the scene in time to take over the pursuit. The pursuing officers must notify the authorities of the State whose territory they are about to enter, "at the latest when they cross the border". They may be required to stop their pursuit. Each Schengen State must state in a declaration made at the time of signing (or acceding to) the Convention the procedures for carrying out a pursuit in its territory. It may impose geographical or time limits from the crossing of the border. It may also stipulate, either that the pursuing officers have no right to apprehend the person they are chasing, or that they may detain the person concerned if the local police are unable to intervene quickly enough. Only the local police have the right to establish the identity of the pursued person and to make an arrest. Each Schengen State must also include in the declaration the type of offences in respect of which it will allow hot pursuit (opting for the list in paragraph 4(a) or (b) of Article 41). Pursuing officers must comply with a number of general conditions common to the Schengen territory covering such matters as use of handcuffs and service weapons, identification, security searches, in addition to the laws of the Schengen State in whose territory they are operating.

  Article 42 provides that police officers engaged in cross-border operations (surveillance or pursuit) will be subject to the same laws as local police in respect of offences commited by or against them.

  Article 43 apportions liability for damage caused by officers operating across the border.


Article 95 EC Treaty and Articles 30(1) and 34 TEU

  See under provisions of the EC Treaty and TEU.

Procedures: co-decision and qualified majority voting under Article 95; unanimity under Articles 30(1) and 34.

  Summary of Schengen provisions allocated to Articles 95 TEC and 30(1) and 34 TEU

  Convention Articles 126, 127, 128: these provisions are in Title VI of the Convention concerning protection of personal data.

  Article 126 requires all Schengen States to adopt national provisions guaranteeing a level of protection at least equal to that of the 1981 Council of Europe Convention on the automatic processing of personal data. There are a number of further conditions as to the use which may be made of data transmitted pursuant to the Schengen Convention, the correction or destruction of incorrect data, and liability to compensate for damage caused to an injured party. These latter conditions do not apply to those parts of the Schengen Convention concerning mutual assistance in criminal matters, the non bis in idem principle, extradition, and transfer of enforcement of criminal judgments. Article 126 as a whole does not apply to the provisions of the Convention on the Schengen Information System and on responsibility for processing asylum applications.

  Article 127 makes clear that the data protection requirements in Article 126 also apply to the transmission of data from and to non-automated data files, and sets out the rules which apply to personal data which is not automatically processed or held in non-automated data files. There are similar exceptions to those listed under Article 126.

  Article 128 makes the transmission of personal data by or to each Schengen State conditional on instructing a national supervisory authority to monitor independently compliance with the provisions on processing of personal data in data files. The same exceptions apply in relation to this Article.


  The Protocol Integrating the Schengen Acquis into the Framework of the European Union is annexed to the EC Treaty and the TEU.

Articles 2(2) and 8

  Article 2(2) makes clear that for those Member States having signed accession protocols to the Schengen agreements but which have not yet met the conditions for accession by the time the Amsterdam Treaty enters into force, the Council of thirteen will determine unanimously the dates on which the Schengen acquis will apply.

  Under Article 8, full acceptance of the Schengen acquis and further measures building on it will be a necessary condition of EU membership for applicant countries.

  Summary of Schengen provisions allocated to Articles 2(2) and 8 of the Schengen Protocol

  Convention Final Act, declaration 1: this provides that the Convention shall not enter into force until the preconditions for its implementation have been fulfilled in the signatory States and checks at external borders are effective.

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