Examination of Witness (Questions 220
WEDNESDAY 27 JANUARY 1999
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
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.
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
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
226. Even though some of them are islands?
227. Just for completeness, may I ask you
to explain to us what exactly the Schengen Task Force is doing?
A. The Schengen
Task ForceI 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.
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
A. Sorry, I did
not quite follow your question. It is not linked to the previous
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
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.
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
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.
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.