Extract from 31st Report, Session 1997-98, Incorporating
the Schengen Acquis into the European Union
THE ORIGINS OF THE SCHENGEN AGREEMENTS
14. Article 3c of the EC Treaty includes as a
Community objective the creation of "an internal market characterized
by the abolition, as between Member States, of obstacles to the
free movement of goods, persons, services and capital" The
free flow of persons as an essential element of the internal market
is spelt out in Article 7a of the EC Treaty (to be renumbered
14 upon entry into force of the 1997 Amsterdam Treaty) which defines
the internal market as "an area without frontiers in which
the free movement of goods, persons, services and capital is ensured
in accordance with the provisions of the Treaty". Measures
implementing these four economic freedoms may be adopted by a
qualified majority. By the end of 1992 (the deadline for completing
the internal market) the Community had adopted numerous measures
to facilitate the flow of goods, services, and capital across
the Community's internal borders without securing similar advances
for the flow of persons other than "workers". Unanimity,
with its attendant risk of deadlock, remains the general rule
for the movement of persons. The United Kingdom has long disagreed
with the other Member States on the Community's role in securing
free movement for all persons (not just Community "workers")
in a Europe free of frontier controls.
15. Some Member States, frustrated by the Community's
failure to lift internal border controls on persons, decided to
establish an independent framework within which they could take
the necessary measures to secure free movement between themselves.
The Agreement signed by France, Germany, and the Benelux countries
(Belgium, Luxembourg and the Netherlands) in the border hamlet
of Schengen in Luxembourg on 14 June 1985 served as a skeleton
which was fleshed out by the 1990 Schengen Implementing Convention.
This Convention contains detailed provisions which provide the
legal base for implementing the general principles first set out
five years earlier in the 1985 Agreement. The principal aim of
the Convention was to abolish checks on the movement of persons
at internal borders within the Schengen area by transferring these
to the external frontiers. To achieve this, wide-ranging "flanking"
measures were required. These "flanking" measures covered
such matters as asylum, visa and immigration policy, police co-operation,
and the exchange of information. They were justified on public
policy or national security grounds.
16. A number of these flanking measures were
identified at the 1992 Maastricht Summit which agreed the Treaty
on European Union (TEU) as "matters of common interest"
to all Member States. The TEU established a European Union built
on a new three-pillared structure. The Third Pillar provides for
Governments to cooperate with each other in the fields of justice
and home affairs; under the Third Pillar the free movement of
persons became one of the "objectives of the Union".
As concrete measures to achieve this would still have to be agreed
unanimously, their adoption could continue to be held hostage
by a single Member State.
17. Since the original agreement was signed in
1985, almost all Member States have chosen to join the Schengen
system. Of the 15 EU Member States, only Ireland and the United
Kingdom have remained outside.
The United Kingdom has continued to insist on its right to maintain
border controls on all persons seeking entry. This has now been
formally recognised in the Treaty signed at Amsterdam in October
For Ireland the desire to maintain the Common Travel Area with
the United Kingdom, characterized by the absence of passport controls,
has precluded its participation in Schengen. By contrast, two
non-EU countries, Iceland and Norway, have opted for formal co-operation
with the Schengen countries in order to safeguard the integrity
of the Nordic Passport Union.
This abolishes passport controls at the common borders between
Denmark, Finland, Iceland, Norway and Sweden and enables their
nationals to move freely or reside in any of the five Nordic States.
For practical purposes, Iceland and Norway form part of the Schengen
18. The 1985 Schengen Agreement, the 1990 Schengen
Convention and the Accession Protocols and Agreements signed by
the eight EU Member States wishing to join the five original Schengen
members, are referred to collectively in this Report as the Schengen
agreements. As we will explain later, most Schengen States consider
that the 1985 Agreement has no legal effect and that it has been
superseded in its entirety by the 1990 Convention. Others, apparently
a minority, disagree. It is, however, clear that the 1990 Convention
and decisions adopted under it form the core of the Schengen acquis.
We consider the main elements of the Convention below.
The Main Elements of the Schengen Convention
(i) Removing Internal Border Controls
19. The "gradual abolition of controls at
the common frontiers" is the overriding objective of the
1985 Schengen Agreement. The 1990 Convention establishes the institutional
framework and means for achieving this. It does not seek to loosen
or lift controls but, rather, to transfer these away from internal
borders. This means that controls will take place within the territories
of individual Schengen States or, more usually in the case of
travellers subject to passport or visa checks, at the external
frontiers of the Schengen area. For Schengen purposes, the United
Kingdom is a "third country". Entry into any one of
the Schengen States from the United Kingdom involves crossing
an external frontier but, once within the Schengen area, the common
borders between Schengen States should be invisible. Controls
at the borders between Schengen States may, however, be re-instated
at any time on the grounds of public policy or national security.
(II) FREEDOM OF MOVEMENT
20. Once a person is admitted into the Schengen
area, he or she enjoys freedom of movement throughout the Schengen
But it is a qualified freedom. Although entry for nationals of
EU Member States is subject only to a check to establish their
identities, their substantive rights in such matters as movement
and residence are still governed by Community law, to which the
Convention is subservient.
For all non-EU nationals freedom of movement within the Schengen
area is limited to three months. Moreover, there are stringent
conditions for entry and more thorough checks which include not
only "conditions governing entry, residence, work and exit
but also checks to detect and prevent threats to the national
security and public policy of the Contracting Parties".
Most of the Schengen provisions regulating the movement of persons
concern these third country nationals, classified as "aliens"
in the Convention. In addition to travel documents and visas,
they may be required to produce documents demonstrating "the
purpose and the conditions of the planned visit" and proving
that they have "adequate means of support" both for
their stay and their return journey.
21. The conditions set out in the Convention
establish a minimum threshold for entry common to all the Schengen
States. But the actual conditions for entry may, by a process
of cumulation, be even tighter. Schengen States, although obliged
to refuse entry to any person who does not reach the minimum threshold
for entry, are not similarly obliged to admit those who do.
In some respects the Convention enlarges, rather than extinguishes,
individual Schengen States' national powers or discretion as regards
the criteria for entry. Decisions made at a national level take
effect throughout the Schengen area. So if any one Schengen State
considers an alien to be a threat to its, or any of the other
Schengen States', public policy, national security or international
relations, then that alien must be refused entry into Schengen
Exceptionally, however, a Schengen State may admit, into its own
territory only, an alien who has failed to satisfy the entry conditions
on "humanitarian grounds, on grounds of national interest
or because of international obligations".
22. The means for implementing the common entry
conditions include harmonising visa policy,
introducing carrier liability,
and imposing penalties on those assisting unlawful entry.
23. Detailed provisions on the criteria for determining
the State responsible for examining asylum applications no longer
apply since the entry into force, on 1 September 1997, of the
This contains rules similar to those in the Schengen Convention
but has a wider geographical scope as it applies in all EU
24. One requirement applicable both to nationals
of EU Member States and "aliens" is to produce proof
of identity and fill out a declaration form when staying in any
commercially rented accommodation, such as hotels or camping sites.
(III) POLICE CO-OPERATION
25. Police co-operation is another key element
of the Convention. This is based on mutual assistance between
police authorities in the Schengen States to prevent and detect
criminal offences, provided this does not involve the application
of "measures of constraint" on the part of the police
from whom assistance is sought.
Police authorities may also, on their own initiative, exchange
information without a formal request for assistance if this may
help "prevent future crime and offences against or threats
to public policy and security.
This is one of the tasks which Aliaison
officers, seconded in the framework of bilateral or multilateral
agreements to police authorities in other Schengen States or to
third countries, may perform.
26. Co-operation is not limited to exchanges
of information, but may be operational in character. There are
detailed rules on cross-border surveillance
which enable police officers from one Schengen State to cross
the border into another to continue their operations. In urgent
cases, this can be done without obtaining prior authorization.
A third type of operational co-operation concerns controlled deliveries
This enables police and customs authorities to follow a drugs
trail to its final destination.
(IV) OTHER FORMS OF CO-OPERATION
27. Co-operation is intensified in a number of
other areas, too. These include provisions on mutual assistance
in criminal matters,
and the transfer of the enforcement of criminal judgments
which build on existing international Conventions. There are also
safeguards to prevent prosecution for the same offence in more
than one Schengen State.
National laws on some aspects of drugs policy relating to illegal
trafficking, seizure and confiscation of assets derived from such
traffic, and controlled deliveries of drugs are to be harmonised,
as are minimum rules on the purchase, possession, sale and surrender
of firearms and ammunition.
(V) THE SCHENGEN INFORMATION SYSTEM
28. A computerised joint information system -
the Schengen Information System (SIS) - enables Schengen States
to exchange data in order to Amaintain
public policy and security, including national security, and to
apply the provisions of this Convention relating to the movement
Each Schengen State has a national computer system (or Asection)
with a complete Schengen-wide data file. A central technical support
function in Strasbourg ensures that data entered in one national
system is automatically transmitted to the other sections. This
means that all Schengen States have access to a common pool of
data via their own national systems.
29. The persons in relation to whom data may
be stored in the SIS include those being sought for extradition,
whose entry is objected to by any one Schengen State, missing
persons or persons deemed to be in need of police protection,
and witnesses and persons to be summoned or notified by judicial
authorities in connection with criminal proceedings.
In addition, data may be included on persons or vehicles for the
purposes of carrying out Adiscreet
surveillance or specific checks.
Personal data entered for this purpose must relate to an individual
suspected of committing or being likely to commit Aextremely
serious offences or who may present a serious threat, including
to national security.
30. The SIS may also contain information on objects,
such as stolen vehicles, firearms, identity papers or blank official
documents, and bank notes.
31. The personal data which may be entered in
the SIS include, in addition to name, date and place of birth,
sex and nationality, Aany
specific, objective and physical characteristics not subject to
change as well as information indicating whether a person may
be armed or violent.
Personal data revealing racial origin, political opinions or religious
or other beliefs, as well as personal data concerning health or
sexual life, must not be entered in the SIS.
It is not clear whether this prohibition would preclude the inclusion
of such data if it were characterized as a permanent, specific,
objective and physical characteristic (for example, racial origin)
or if it were considered relevant to preventing threats to public
safety or security.
32. Access to data contained in the SIS is restricted
to officials responsible for border, police or customs checks
and those concerned with the entry and movement of aliens.
(VI) DATA PROTECTION
33. The exchange of information is a crucial
element of the co-operation provided for in the Convention. It
arises specifically in relation to external border checks and
violations of national laws on the entry and residence of aliens,
mutual assistance and other co-operation between police authorities,
mutual assistance in criminal matters,
and the purchase and possession of firearms.
34. The data protection rules in the Convention
are complex and multi-layered. There are general data protection
rules which cover most of the areas mentioned above. Then there
are specific rules which apply to personal data entered in the
SIS and to data exchanged in relation to asylum matters.
(A) THE GENERAL RULES
35. All Schengen States must adopt national laws
ensuring a level of data protection at least equal to that provided
for in the 1981 Council of Europe Convention for the Protection
of Individuals with regard to Automatic Processing of Personal
Data. The Council of Europe standards apply to all data processed
automatically, and to some manually processed data. There are
additional criteria on limiting the categories of users and the
purposes for which data may be used, accuracy of data, recording
of the transmission and receipt of data, and liability for damage
caused by the transmission and use of inaccurate data. These criteria
do not, however, apply uniformly to every type of data exchange
(the rules may vary according to how the data is processed and
recorded), nor do they cover every area in which data may be exchanged.
36. Before exchanging any data under the Convention,
each Schengen State must establish an independent national supervisory
authority to monitor compliance with the data protection rules.
There are additional safeguards for data exchanged between police
authorities, based on the standards set out in the 1987 Council
of Europe Recommendation regulating the use of personal data in
the police sector.
These are supplemented by specific conditions for information
exchanged without a prior request in the general interests of
crime prevention, public policy and security.
(B) THE SCHENGEN INFORMATION SYSTEM
37. In respect of data recorded in the SIS, Schengen
States are required to ensure at national level Aa
degree of protection of personal date at least equal to that resulting
from the principles laid down in the 1981 Council of Europe Convention
and the 1987 Recommendation mentioned above. Schengen States may
use data stored in the SIS soley for the purposes for which it
was entered. There are time limits for the storage of certain
types of data and a requirement for periodic reviews of the need
to hold personal data. Each Schengen State is responsible for
the accuracy and lawfulness of data entered in its national section
of the SIS, for correcting or deleting inaccurate data, and for
adopting the requisite controls to ensure the security of data.
There is an important role for national law too, in establishing
the procedures for exercising the right of access to data stored
in the SIS. Data may be withheld Ato
protect the rights and freedoms of others, to obviate a risk that
disclosure would thwart the purpose for which the data was entered,
or to maintain discreet surveillance. There is a right to bring
legal proceedings to require the correction or deletion of inaccurate
information and obtain compensation, accompanied by a joint undertaking
on the part of all Schengen States to enforce final decisions.
38. The independent national supervisory authority
responsible in each Schengen State for monitoring compliance with
the general data protection rules of the Schengen Convention (see
paragraph 36 above) must also supervise the data file of the national
section of the SIS. Representatives from each national body serve
on a joint supervisory authority whose task is to supervise the
central technical support function of the SIS in Strasbourg.
(C) ASYLUM MATTERS
39. The Convention provides for an extensive
exchange of information on matters relating to asylum policy and
specific data on asylum seekers. Personal data may include "any
. . . details needed to establish the asylum seeker's identity".
It must be communicated solely for the purpose of determining
which Schengen State is responsible for processing the asylum
application and then for the actual processing of that application.
Asylum seekers do not have a right of access to their personal
data, but are "entitled to be informed, at their request,
of information exchanged which concerns them provided that this
is available". They are also "entitled to demand its
correction or deletion" if it is incorrect. There is no explicit
provision on liability to compensate for damage resulting from
the transmission of inaccurate data, nor does the Convention state
how asylum seekers are to formulate or give effect to their right
to be informed. Moreover, the standards set out in the 1981 Data
Protection Convention apply only to automatically processed data.
Effective, but unspecified, checks by national authorities must
be carried out on data held in other non-automated files.
(VII) TRANSPORT AND MOVEMENT OF GOODS
40. A small number of provisions concern measures
to facilitate the movement of goods across internal borders and
enhance co-operation between customs authorities.
(VIII) THE EXECUTIVE COMMITTEE
41. This is the body which has been responsible
for implementing the Convention. It comprises one Minister from
each Schengen State and has decision-making powers which it must
exercise by unanimity.
The Schengen Executive Committee is therefore the equivalent of
the EU Council of Ministers, bringing together 13 of the 15 Ministers
who form the Justice and Home Affairs Council. Like the EU Council
of Ministers, the Executive Committee has a six-monthly rotating
Presidency. According to its Rules of Procedure
it does not meet in public and its deliberations are secret unless
the Committee decides otherwise. The publication of Executive
Committee decisions is governed by the national laws in each of
the Schengen States, except in the case of decisions which are
declared to be confidential at the time of their adoption.
42. The EC Commission is generally invited to
meetings of the Executive Committee and its subordinate bodies
but has no formal role in decision-making. A Central Group of
senior officials (a body comparable to the Committee of Permanent
Representatives in the First Pillar, the Political Committee in
the Second Pillar, and the K.4 Committee in the Third Pillar)
prepares the Committee's work and may also set up working groups.
Once a draft decision has been submitted to the Executive Committee,
any member may request a grace period of up to two months to allow
for consultations or parliamentary approval. Once this period
has elapsed, the draft will be re-submitted to the Executive Committee
for final adoption.
43. The Executive Committee has an explicit decision-making
role in many of the areas covered by the Convention. These include
procedures for implementing border checks and surveillance,
procedures relating to visas,
compensation arrangements to correct financial imbalances resulting
from the compulsory expulsion of aliens,
the form and content of medical certificates enabling a person
carrying narcotic drugs to move freely within the Schengen area,
and amendments or additions to the list of firearms which are
to be banned, require authorisation or must be declared.
44. The Executive Committee has generated a substantial
volume of acquis since it first adopted its Rules of Procedure
in December 1993. Some 100 decisions and over 50 declarations
covering the period up to June 1997 have been deposited in the
Library of this House. The subject matter ranges from administrative
and financial matters to operational guidelines for law enforcement
and border control officials and important statements of policy.
Many of the earlier documents are in French or German. At least
six are to our knowledge confidential and have not been disclosed.
No official list of this acquis has been published. We
have therefore compiled our own list which gives the document
reference number and title of each decision or declaration made
available to us. Our list is printed at Appendix 6.
It is still not clear how much of the acquis produced by
the Executive Committee will be incorporated within the EU treaties.
16 The Convention implementing the Agreement of 14
June 1985 between the Governments of the States of the Benelux
Economic Union, the Federal Republic of Germany and the French
Republic on the gradual abolition of checks at their common borders,
signed in Schengen on 19 June 1990. No official English text
of the Convention exists. Back
Article K.1, Title VI of the Treaty on European Union. Back
Article K.1. Back
Italy, Spain, Portugal, Greece, Austria, Denmark, Finland and
Sweden have all signed Accession Protocols and Agreements to the
1985 Schengen Agreement and the 1990 Implementing Convention.
The pre-conditions for applying the Convention have so
far been met by the Benelux States, France, Germany, Spain and
Portugal (from 26 March 1995), Italy (from 26 October 1997) and
Austria (from 1 April 1998). For the details of the position
of Denmark, see paragraph 55 below. Back
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
Only EU Member States may become parties to the Schengen Agreement
and Convention. Under the Cooperation Agreements the Schengen
acquis established by the date of signing, on 19 December
1996, applies to Iceland and Norway. They may attend meetings
to prepare decisions, express their opinions and submit proposals
for acts building on this acquis, but do not have a vote.
Each must decide independently whether to accept later decisions
and declarations made by or on behalf of the Schengen Executive
Article 2(2) of the Convention. Back
Articles 19-24 of the Convention. Back
Article 134 of the Convention. Back
Article 6(2)(a) of the Convention. Back
Article 5(1)(c) of the Convention. Back
Under Article 5(1) aliens who satisfy the entry conditions Amay@
be admitted but those who do not satisfy the entry conditions
in any one of the Schengen States Amust@ be refused entry
under Article 5(2). Back
Article 5(1)(e) of the Convention. Back
Article 5(2) of the Convention. There is a similar provision
in Article 25(1) on issuing residence permits. Back
Articles 9-18 of the Convention. Back
Article 26 of the Convention. Back
Article 27(1) of the Convention. Back
A Protocol agreed in Bonn on 26 April 1994 provides that the Schengen
rules on asylum will no longer apply upon the entry into force
of the Dublin Convention determining the State responsible for
examining applications for asylum lodged in one of the Member
States of the EU. This Convention is open only to members of
the EU. It entered into force in Austria and Sweden on 1st October
1997, and in Finland on 1st January 1998. Back
Article 45 of the Convention. Back
Article 39(1) of the Convention. Back
Article 46 of the Convention. Back
Article 47 of the Convention. Back
Article 40 of the Convention. Back
Article 41 of the Convention. Back
Article 73 of the Convention. Back
Articles 48-53 of the Convention. A Home Office Note on the relationship
between these Articles and the EU Convention on mutual assistance
in criminal matters is printed at page 42 of the House of Lords
Select Committee report on Mutual Assistance in Criminal Matters,
14th Report, 1997-98, HL Paper 72. Back
Articles 59-66 of the Convention. Back
Articles 67-69 of the Convention. Back
Articles 54-58 of the Convention. Back
Articles 70-76 of the Convention. Back
Articles 77-91 of the Convention. Back
Article 93 of the Convention. Back
Articles 95-98 of the Convention. Back
Article 99(1) of the Convention. Back
Articles 99(2) & (3) of the Convention. Back
Article 100 of the Convention. Back
Article 94(3) of the Convention. Back
This prohibition is based on the first sentence of Article 6 of
the Convention for the Protection of Individuals with regard to
the Automatic Processing of Personal Data, signed on 28 January
1981 and in force in the United Kingdom since 1 December 1987. Back
See Articles 94(3)(b) and 99 of the Schengen Convention. Back
Article 101 of the Convention. Back
Article 7 of the Convention. Back
Article 27(2) of the Convention. Back
Articles 37 & 38 of the Convention. Back
Articles 39 & 46 of the Convention. Back
Articles 48-53 of the Convention. Back
Article 91 of the Convention. Back
The additional criteria do not apply to exchanges in the context
of mutual assistance in criminal matters, extradition, application
of the non bis in idem principle, and transfer of the execution
of criminal judgments. Back
Article 128 of the Convention. Back
Recommendation No. R(87) 15 of the Committee of Ministers, adopted
on 17 September 1987. Back
Article 129 of the Convention. Back
The rules on data protection in the SIS are in Articles 102-118
of the Convention. Back
Articles 37 & 38 of the Convention. Back
Articles 120-125 of the Convention. Back
Articles 131-133 of the Convention. Back
Set out in document SCH/Com-ex(93) 1 rev. 2 Back
Article 8 of the Convention. Back
Articles 12(3) and 17(1)-(3) of the Convention. Back
Article 24 of the Convention. Back
Article 75 of the Convention. Back
Article 89 of the Convention. Back
Not reproduced with this report: see 31st Report, Session 1997-98. Back