Examination of Witness (Questions 213
WEDNESDAY 27 JANUARY 1999
213. Good afternoon, Mr Fortescue. You are
quite familiar with this Committee, and I think you know a fair
amount about this inquiry, and other members of the Committee
will know that I have poached you on two or three occasions to
update us on what is happening in Brussels. Indeed, my Lord Kingsland
and I went to take evidence from you in Brussels about 18 months
ago. Is there anything you would like to say by way of opening?
(Mr Fortescue) Indeed this is not the first time
I have appeared before the Committee which carries this name,
though I do not know if any of the members were the same at the
time. I know what you are inquiring into, at least I think I do.
I will be happy to try to bring what wisdom I can, given how many
people you have already heard from. Perhaps it would be useful
to introduce briefly myself and what I do so that you can know
what might be the questions I can perhaps help with. My name is
Adrian Fortescue. I work at the European Commission in the Secretariat-General,
which is, I suppose, our equivalent of the Cabinet Office. Within
that I am a Deputy Director-General with particular responsibility
for what is currently known as Justice and Home Affairs and will
come to be known I think as Freedom, Security and Justice when
the Amsterdam Treaty comes into force. It is a small team, but
much of our work is trying to focus on what Amsterdam means for
work in this area. We do not, I hasten to say, follow Schengen
in its detail. That is another department which does that, but
we have to follow it in a rather general way because without that
the next Treaty will not make any sense. If I seem to be comfortable
in your language, it is because I am a United Kingdom citizen
and, as one distinguished member of the Committee knows, was once
a member of the Foreign Service, but I think it is in my capacity
as a European Commission official that you want to hear from me,
not in my previous capacity.
214. Perhaps I might start by asking you
about the incorporation of the Schengen acquis because it is part
of the background to this inquiry which is concerned, as you know,
with the British opt-out costs and benefits of maintaining the
British opt-out. Can you tell us what progress has been made with
incorporating the Schengen acquis into the Treaty framework? Is
that one of the things which you are up to date on?
A. I can try
and answer that, my Lord Chairman, but it is not quite as easy
as it sounds. There are two aspects to incorporating Schengen,
one of which was handled by my Department and is more or less
in place, which is how to deal with the Norway/Iceland dimension
to it, which is not without its difficulties. We have found a
solution to that, I think. The second and more difficult aspect
is how to divide the Schengen acquis, if I can use the word, between
the two Pillars that it will be divided between under the Amsterdam
Treaty. That work is not advancing very fast. There are real difficulties
there. Some of them have more of a political nature than a legal
nature, but the requirement to have it all done by the time the
Treaty enters into force is there. There is a fallback solution,
as you know, if it is not done. If there is no agreement it moves
automatically into the Third Pillar, into Title Six of the Amsterdam
Treaty. The Commission, which does not share that opinion as being
the right solution, will have to take some decisions about what
it can do about it if we are faced with that fallback position
simply happening by default.
215. Arising from your initial comments,
are you happy that the Schengen acquis has been identified satisfactorily
because certainly when we were considering the matter there seemed
to be a lot of doubt as to exactly what was included in the acquis
and what was not. Are you happy that the definition of what it
is that has to be incorporated is sound and final?
A. I think the
answer is more or less. It is true that there are rather obscure
corners of the Schengen acquis which are wrapped up in documents
which are still considered confidential, but the Commission, which
is not part of Schengen as you know and had observer status in
Schengen, is more or less content that we know what the Schengen
acquis is, sufficiently anyway to conduct a separate exercise,
which is to try and brief the candidate countries on what the
Schengen acquis is, because they too have to accept that. We have
had sufficient contact now with the Member States of Schengen
and with the Schengen Secretariat to have an acquis which they
agree is the right acquis to present to the candidate countries.
That is our starting point and I think it is more or less okay.
216. Who will actually make this decision
of what the acquis is? Is it the Council and, if so, will they
take this decision separately from where it is allotted in the
Treaty, that it will be a two-stage decision in the Council, the
first saying, "Yes, we agree this is what the acquis is",
and then at a later meeting we decide what to put where, or is
it all part of the same thing?
A. It is different
to the extent that the identification of the final decision of
what constitutes the acquis rests with the Schengen Member States,
13 of them. Once they have taken that decision, the distribution
of it is a matter for the Council, the 15. It is a two-stage process,
if you like. The 13 Schengen countries are agreed on what their
acquis is, and the work being done by the 15 is on the basis of
what they agree among themselves represents the acquis.
217. The way in which they will reach this
decision on what is the acquis is in a meeting of the Council
presumably, rather than at an intergovernmental conference?
A. I do not think
I can quite go along with that. It is certainly not an intergovernmental
conference. But the Schengen Member States themselves, acting
in their capacity as the Council in its composition of 13 Member
States, must be allowed to decide what they have agreed among
themselves and that constitutes the acquis. They then inform the
full Council including therefore the two Member States who are
not Schengen members, and then the 15 take over and start discussing
it, which is one of the reasons why it was possible for the United
Kingdom Presidency to conduct the first stages of this, to use
a horrible word, Aventilation exercise.
218. Sorry; I did not hear that. What exercise?
A. In Brussels
jargon, the splitting of the Schengen acquis between the First
and Third Pillar is known by the word "ventilation".
It is not a word I would normally use in that sense, so forgive
me for doing so here, but it is part of the jargon.
Lord Lester of Herne Hill
219. I suppose the right word would be "defenestrate"
rather than "ventilate". Among the Schengen Member States
is it possible to give us an impression as to where the balance
at present lies about placing the Schengen acquis under the First
Pillar rather than the Third Pillar, in other words is there a
strong majority, do you think, in favour of doing so and what
are the key sticking points in political terms that might cause
the Schengen Member States not to wish to put the whole of the
Schengen acquis in the First Pillar?
A. I think it
would be wrong of me to identify by name what Member State is
taking what position. I think that is beyond my remit. There is
no unanimity among the Schengen Member States on this. The Commission
has taken a view that those areas of the Schengen acquis which
you can clearly identify as being covered by the new Title IV
of the Treaty should be regarded as moving to the First Pillar.
That to us seems to be clear. In that we have a certain amount
of support from a number of Member States of Schengen. There are
however Schengen Member States who think it would be simpler and
more practical to use the easy solution if you like, the fallback
solution, and simply move it to the Third Pillar in its entirety
on the grounds that even in the areas covered by Title IV: immigration,
asylum and other related areas, there is a sufficient law enforcement
dimension to make it a candidate to remain in the Third Pillar.