Select Committee on European Union Fifth Report


DRAFT COUNCIL DECISION

Explanatory Memorandum on the Draft Decision of the Council on the request by the United Kingdom to take part in some of the provisions of the Schengen acquis (Document No 11177/99 SCHENGEN 74)[33]

Submitted by the Home Office on 7 October 1999

SUBJECT MATTER

  1.  This Explanatory Memorandum relates to the first draft of the Decision by the Council to authorise the UK's application to participate in those areas of the Schengen acquis which relate to law enforcement and criminal judicial co-operation, including the Schengen Information System (SIS), in accordance with Article 4 of the Schengen Protocol.

MINISTERIAL RESPONSIBILITY

  2.  The Home Secretary has overall responsibility for the policy arising from this document.

LEGAL AND PROCEDURAL ISSUES

(i)  Legal basis

  3.  The UK's application to participate in the Schengen acquis is provided for by Article 4 of the Protocol integrating the Schengen acquis into the framework of the European Union, annexed to the Treaty on European Union and the Treaty establishing the European Communities.

(ii)  European Parliament

  4.  There is no formal European Parliamentary procedure provided for in the Schengen Protocol. The UK fully supports initiatives by the EU Presidency of the day to supply the European Parliament with full documentation on the Schengen integration process.

(iii)  Voting Procedure

  5.  Article 4 of the Schengen Protocol provides that any application by the UK to participate in the provisions of the Schengen acquis shall be decided unanimously in the Council by the 13 Schengen states and the UK.

IMPACT ON UNITED KINGDOM LAW

  6.  The UK's participation in the provisions of the Schengen acquis will require legislation in a number of areas. This was considered in the Explanatory Memorandum on the UK's application to participate (Council Doc no 8562/99).

CONSULTATION WITH OTHERS

  7.  Norway and Iceland have been informed of the UK's application and of progress on it in the context of the association agreements made in accordance with Article 6 of the Schengen Protocol. The Government of Gibraltar has been consulted in relation to the territorial application of UK participation in the Schengen acquis.

POLICY IMPLICATIONS

  8.  While the policy implications of the draft Decision remain very much as reflected in the Explanatory Memorandum on the UK's application to participate in the Schengen acquis, certain developments which have arisen from discussions in the Council working group are reflected in the draft. In particular, all references to Article 41 (provisions on hot pursuit) are now provisional, as it has been concluded that the UK could apply these provisions only in relation to the border with the Republic of Ireland, which has yet to lodge an application to participate in the Schengen acquis and which need not necessarily be made in identical terms.

  9.  Certain Articles of the Schengen Implementing Convention and Decisions and Declarations of the Schengen Implementing Convention which were included in the original application are not listed in the draft Decision because they have not been given a legal base—for instance Articles 70 (working group on drugs) and Decisions Ex-Com (93) 16 and (95) 6,7,8 & 9, all of which relate to the SIS and are now considered obsolete. The inclusion of Articles of the Accession Agreements signed by other Schengen states reflects the need to recognise obligations between the UK and these states, which were created subsequent to the original Schengen Implementing Convention.

  10.  As is clear from Article 6 of the draft Decision, the territorial application of the UK's application to participate in parts of the Schengen Convention is still subject to discussion.

  11.  Article 7 provides for the structure for implementation of the Schengen acquis in the UK. This (first) Council Decision will confirm acceptance of the UK's application; preparation for their implementation will then be followed by a second Decision which will authorise the UK to put them into effect.

FINANCIAL IMPLICATIONS

  12.  Financial implications will arise mainly in relation to UK participation in the SIS. Article 8 of the draft Decision recognises that the precise extent of the UK's financial commitment will need to reflect the extent to which it participates in the System. The implications of the UK's application to participate in areas of the Schengen acquis are considered in detail in the Explanatory Memorandum on the UK's application to participate (Council Doc no 8562/99).

TIMETABLE

  13.  Discussions on the draft Decision will continue within the Council framework. There is no fixed deadline.


33   This Explanatory Memorandum concerns the first draft Council Decision which has been superseded by revised versions. Only the latest draft version is reproduced. Back


 
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