Select Committee on European Communities Minutes of Evidence


Examination of Witness (Questions 220 - 239)

WEDNESDAY 27 JANUARY 1999

MR ADRIAN FORTESCUE

  220.  I find that very helpful. If the fallback position is adopted so that it does not become part of directly effective European Community law, and the European Court of Justice does not have Pillar One jurisdiction, do you think that if it falls under the Third Pillar it will be likely that the European Court of Justice will none the less will be given responsibility for ensuring a consistent and uniform interpretation and application say of the Schengen nation system, even though it is under the Third Pillar?

  A.  For so long as it remains under the Third Pillar, and I will come back to what I mean by that, almost by definition the role of the Court of Justice will be dictated by the future Title VI provisions on the Court of Justice, which, as you know, are different from the Third Pillar provisions today. There is a role for the Court of Justice. It is explained and it is more limited, obviously, than under the First Pillar, but there is a role where there was not clearly one before. The decision the Commission will have to take, if everything moves against our advice to the Third Pillar in its entirety, will be how to deal with that situation. There are various things the Commission might decide to do in that hypothesis. Among them would be to put up money where our mouth is, if you like, and table proposals in those areas which we think should fall into the First Pillar on the basis of the First Pillar instruments and see what happens. If they are successful then the First Pillar provisions on the Court will apply.

Chairman

  221.  Can we move on to border controls, which is one of the key areas that we find ourselves stuck on as a point of difference between the British and our colleagues. Can you tell us from your observations how far the current Schengen Member States have got in dismantling their internal border controls, and also in establishing mutual confidence in each other's external borders? One of our greatest points of semantic difficulty is how far selective checks differ from border controls.

  A.  I think I can be relatively precise on that. I think I am right in saying that nine Member States of Schengen now apply Schengen fully, which means that they have dismantled their border controls between themselves, which in turn implies that they have confidence in each other to maintain a proper level of control at the external frontier. There is one wrinkle, which is known as the Franco-Dutch wrinkle, where France has already invoked the safeguard clause present in Article 2.2 of the Schengen Convention. But those nine have gone the whole way. They did not do it all at the same moment, as you know. They started with the five, the three Benelux countries, France and Germany; Spain and Portugal came next; Italy and Austria have now joined. The next and most advanced case is Greece and the Nordic new members are waiting in the wings. They have a mechanism which is fairly precise on how they establish the answer to your second question, whether or not they can have confidence in each other's management of the external frontier. They even have formalised it. It is called I think the Schengen Permanent Commission and it consists of people from the existing participant Member States of Schengen, of the nine now, previously five and then seven as they advanced, and they send experts out to investigate the extent to which they can have confidence in the external frontier, and they will go on doing that. It goes further than that. They even check each other from time to time, even the ones that are already in the system, so they do have quite an advanced system for ensuring that they can continue to have confidence in the external frontier, even among the states that have joined fully and among the states waiting to join. They are up to nine but even within the nine there is a safeguard clause which France has invoked because of their difference of assessment about the correct way of dealing with drugs problems.

Lord Pilkington of Oxenford

  222.  Obviously one of the great difficulties is the mutual trust that countries have. Let us take for example Greece, which has a regular ferry that comes into Volos from Syria. You are happy from your experience that the other countries of the Union trust the Greek frontier controls and nowhere is not prepared to accept that as valid? This system of mutual inspection has satisfied them that it is not appearing that some parts of the external frontier are weaker?

  A.  You use the word "you" in your question, my Lord. It is not for the Commission to express a judgement on that today. But if you ask about whether the existing Member States, the full partners of the Schengen system, have a mechanism for deciding whether or not they can be confident in, for example, Greece's management of the external frontier, yes, they do. It is fairly rigorous. If I am not mistaken, it took Italy a long time to pass that test. One must assume and take it at face value when they say that they are satisfied, they really are satisfied, but they still have the safeguard mechanism if they need it.

  223.  The safeguard being?

  A.  The safeguard being Article 2.2 of the Schengen Convention which says that in certain circumstances you can re-impose a border control if you need to.

  224.  I will not ask you, but in general you would say there is a feeling of satisfaction among the full members that it is working?

  A.  Among the nine that are fully involved, yes, and in the system for checking on the ones that are not yet fully involved, I have to say yes, but it is their assessment, not mine.

Earl of Dundee

  225.  Among those countries who are not yet fully involved but who are giving every sign of so becoming, who are they firstly, and among them which of them, if any, are giving signs perhaps that it is not just a question of biding time for a couple of members but they are giving serious thought to the difficulties of having external controls and may thus perhaps come to adopt the UK's position?

  A.  There are 13 signed-up Member States of Schengen. Nine are, as it were, fully operational members, so it is probably easier to enumerate the four that are not fully involved yet. They are Greece, Denmark, Sweden and Finland. They have a different schedule if you like because Greece signed up quite a long time now, whereas the other three are more recent signatories. I do not think even that the entry of Denmark, Finland and Sweden has been ratified by all the Member States of the existing States of Schengen, whereas Greece has. Those are the ones that have not yet joined fully. I have seen no signs that any of them are backtracking in their wish to become full members of the system. Of that there is no evidence. Greece certainly has not and is very keen to satisfy the others that they are ready. As you probably are aware, the three Nordic Member States and their Norwegian and Icelandic fellow members of the Nordic Passport Union have successfully negotiated this Schengen membership. This would indicate that they actively want to join and I have seen no indication that they are changing their mind.

  226.  Even though some of them are islands?

  A.  Yes.

Chairman

  227.  Just for completeness, may I ask you to explain to us what exactly the Schengen Task Force is doing?

  A.  The Schengen Task Force—I have only heard that expression used in one context. It was the body created about a year ago when, if you remember, there were some rather well publicised incidents on the Italian coast with boats running aground with people from Iraq and Kurdistan and from Turkey. It caused some concern within the Schengen system because it became clear that, although they were landing in Italy, a number of them had another destination. Both the European Union and the Schengen countries set up arrangements to try and cope with this development. The arrangement that the Schengen countries created among themselves was called the Schengen Task Force, and it did not have a wider remit than that. But you may be thinking of the other body I referred to, which is this Permanent Commission which goes round checking, but it is not known as the Schengen Task Force.

Lord Dholakia

  228.  Can I ask you whether this is the same structure as the one I have been reading about in a review of a book recently published called The New European Criminology. It says: "It emerges that the Maastricht Treaty spread the sphere of interest of the EU to penal affairs and that this has led to the centralization of European criminal justice policy via the K4 Committee in Brussels. Staffed by senior members of the Justice and Interior ministries ..." and that one of the tasks it has generated is the "harmonization of asylum procedures" as part of the penal policy. Is this something new or is this part of the Brussels set-up that you are talking about?

  A.  Sorry, I did not quite follow your question. It is not linked to the previous question?

  229.  That is what I want to find out.

  A.  I do not think the Schengen Task Force has anything to do with the European Union's attempt to work out a common asylum policy. It was much more ad hoc to deal with a particular situation which arose and sought to mobilise all the disciplines that would be involved in dealing with a crisis like that, be they police, immigration, or whatever. I do not think there is a link between the Union's attempt to create an asylum policy and the group known as the Schengen Task Force.

Lord Inglewood

  230.  You were talking a moment ago about the members of Schengen checking, if I can put it that way, the arrangements in other countries to see first of all whether they came up to standard and, secondly, whether they remained up to standard. You may not be able to give me an answer, but can you tell us anything about the methodology that they use, and in particular are the tests they apply and the criteria they want to have satisfied those which would meet the objections that the United Kingdom Governments of both political parties seem to have had about getting involved in this enterprise?

  A.  I can partly answer your question. The first thing to record is that the countries which are subjected to this examination are only either the Schengen countries themselves or candidates to join the system. They do not go round inspecting the United Kingdom.

  231.  I appreciate that.

  A.  They do it by means of experts involved in frontier issues of one kind or another, and of course in each Member State of Schengen the division of work between ministries could be different. The system they have created at least satisfies themselves that they can apply a test in which they can have confidence. I cannot tell you how they do it, but it certainly involves quite lengthy visits to the countries concerned, including to the frontier points. Whether that would be good enough for the United Kingdom authorities I do not know. You would have to ask them.

Chairman

  232.  You mentioned that you are now also looking at candidate countries in the context of enlargement, and indeed there was something about the Third Pillar in Agenda 2000 opinions on the candidate countries. How many extra difficulties does the potential extension of the external border eastwards create and is this an area which is mainly being dealt with by the Commission through its questionnaires and other processes or by the Council because this is still a Third Pillar matter?

  A.  It is certain that this enlargement is completely different in nature from any previous enlargement in this sector. When the last enlargement took place the candidate countries were fully paid up members of the Council of Europe already, and had a privileged relationship with the TREVI group and were on the whole as up to date as any European Community country was at the time. Furthermore, the acquis in this area was very limited at the time. We are talking about up to five years ago now. So the candidates of that period themselves had a very different recent history from today's candidates and the acquis was much more limited. There is no doubt in my mind that in this enlargement, justice and home affairs issues will loom much larger than they did in the last one. How that negotiation will be conducted is not easy to tell you at this stage. What is happening at the moment is that there is an exercise going on known as the screening exercise, on which the Commission leads but with help from the Member States, where each candidate country in turn is invited to Brussels, is confronted with the acquis, including in this area therefore, and is asked a number of questions about whether this acquis causes them difficulties. If they say no, it does not cause them difficulties, we would wish to ask them further questions. If they say yes, we would (a)  go more deeply into where these difficulties lie and (b), and perhaps more importantly, seek ways in which we could help them. That is where a number of these funds you have heard of, notably the PHARE programme, will come in so that PHARE finance can be directed towards helping countries in this area too. We play our part in the inquiry if you like. Do not forget though that for an enlargement process it is the Council that negotiates in the end. The Commission is very much part of the process, but at the end of the day the Council has to take the final decision.

Lord Lester of Herne Hill

  233.  If we take two fairly obvious objectives from the UK's point of view, looked at from its opt-out position, first that we should still be able to join in with the things which we believe make good sense, like the dissemination of police information, and secondly that when it comes to helping the EC to achieve what is best for Schengen for everybody, we should be able to join in discussions in a creative way and not be second class citizens to these discussions. What are the signs that both of these objectives could be satisfied?

  A.  You have introduced there quite a big subject and it boils down, in my mind anyway, to the distinction between opting out on the one hand and opting in on the other, which are two different subjects. The opt-out seems to be very clear. In the Amsterdam Treaty the United Kingdom opts out of the requirement to get rid of its frontier controls, and that is self-standing if you like. It can change its mind and then certain rules apply about whether the other countries would allow it to opt in to that very fundamental question: frontier controls or no frontier controls. The opting in, which is perhaps more relevant to your question, relates to the new Title IV, those areas which have been moved to the First Pillar where the United Kingdom, if you read that protocol which is a different protocol, starts from the standpoint that it does not participate but can inform the others if it wishes to participate once a proposal is on the table. I see no reason (there is one possible wrinkle)  why the United Kingdom's right to participate, if it decides it wishes to do so in these new areas which are moved to the First Pillar, is not total. I do not see on what ground in the Treaty anyone could prevent the United Kingdom from opting in if it wishes to do so. That is a different question from whether or not it wishes to opt in to Schengen in its full sense, which is the subject of a separate question. If for example the Commission or anybody were to table a proposal in the area of immigration and the United Kingdom were to decide that the content of that proposal was interesting and worthwhile for its own sake, nothing in the Treaty prevents it from saying, "We wish to opt in." I cannot see any good reason why anyone should say, "You cannot opt in."

  234.  If we distinguish substance from semantics and, as you say, we would still be prevented from joining in the full sense, that might just be semantics if the new protocol, the new European facilitator, enables us to decide what makes sense for us and be able to opt in for that. Would that be the position?

  A.  If you are talking about opting in to Schengen in its most complete sense on where the Schengen acquis, which we mentioned earlier, is clearly identified, then it is the protocol which says that request can only be approved by unanimity of the existing Schengen States which applies. If you are talking about a particular subject area which is covered by the new First Pillar, such as in the area of immigration or asylum, and there is an interesting proposal on the table and the United Kingdom announces it wants to opt in, it is the United Kingdom's absolute right to do so, as I read the Treaty. I mentioned a wrinkle. The wrinkle is: there could be argument about whether the subject matter is so directly related to the Schengen acquis to have to be regarded as building on the Schengen acquis rather than moving forward in the European Union context. Questions could arise. We are not exactly entering uncharted waters because the Treaty is a chart, but we are certainly entering unexplored waters, untravelled waters. I start from the point of view that the United Kingdom has a right to state that it wishes to join in after a proposal has been made in the areas covered by the new Title IV and that in normal circumstances that right is absolute. No-one can prevent them from doing so.

  235.  But so long as the United Kingdom stays outside we have no influence at all about improving the Schengen acquis, for example, in dealing with serious reservations about the lack of adequate safeguards for abuse of the information system. We have no bargaining power, do we, as long as we remain outside? We are in that sense at a severe disadvantage for the future.

  A.  If it is a question of something that is so clearly identifiable as being part of Schengen, and I think you have probably have the Schengen information system in mind, the answer is no. That would advance without the United Kingdom being able to participate, unless there was unanimous agreement among the existing Schengen states that they could become part of it. Lord Lester of Herne Hill:  I think the answer is yes. I was asking you to agree with me that there is a severe disadvantage in that we have no bargaining power. We cannot influence the way the buoys are laid over the uncharted waters to navigate the ships. Chairman:   I am sure Lord Lester did not ask a leading question.

Lord Lester of Herne Hill

  236.  I was asking him whether he would agree with my leading question.

  A.  I agree with you that the United Kingdom would not be able to exercise influence if it was outside. You have stated that that is a disadvantage and I think that is what you are inquiring into. Lord Lester of Herne Hill:  If we are trying to influence policies that is a disadvantage.

Lord Pilkington of Oxenford

  237.  Can I ask about some papers we had about the question on 3 April 1998 from a Greek UPE. He asked about the money problem. It is obvious from any of us that knows any geography that some external frontiers are more pressed against than others. Has there been any resolution of this? Is there any tension over this that countries feel they are part of an agreement, they have more difficult frontiers to police? Is there a feeling that the costs should be shared?

  A.  There is certainly a feeling among the countries in the position you have described that the costs should be shared.

Lord Bridges

  238.  Greece have formally asked for help.

  A.  Yes. They are not the only ones who have made this point. There has been no consensus about what form, if any, this help might take.

Lord Pilkington of Oxenford

  239.  But they are asking for money.

  A.  Yes. The Schengen club does not have a system for distributing money in the same way as the Community budget has a system for distributing money. They finance their shared costs, for example for running the Schengen information system, according to a key which has nothing to do with the Community budget. I am not aware of any Schengen country successfully applying to its partners in Schengen for financial support in this area, but it may happen. It would not come across my desk because it is not Community money that is at stake.


 
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