47. DRAFT COUNCIL DECISIONS INCORPORATING
THE SCHENGEN ACQUIS INTO THE EUROPEAN UNION
Letter from Kate Hoey MP, Parliamentary
Under-Secretary of State, Home Office, to Lord Tordoff, Chairman
of the Committee
Last May this Department submitted for scrutiny
two draft Council Decisions relating to the incorporation of the
Schengen acquis into the European Union. I am now pleased to send
you updated versions of the two draft Decisions (documents SCHENGEN
11 rev 5 and SCHENGEN 14 rev 4), together with a Supplementary
Explanatory Memorandum. My officials will be sending you simultaneously
a large bundle of documents which we understand to be the bulk
of the remainder of the Schengen acquis as listed in the two draft
Decisions. You will appreciate that we are unfortunately not able
to deposit in the House documents classified by our Schengen colleagues
as confidential, although we are raising with them separately
the need to keep classified documents to the irreducible minimum.
I am also taking this opportunity to deposit
for the attention of your Committee a draft Council Decision authorising
the Secretary-General of the Council to act as representative
of certain Member States for the purposes of administering two
contracts relating to the installation and the functioning of
the Schengen Information System and its related SIRENE Network.
This Decision will need to enter into force as soon as the Amsterdam
Treaty itself enters into force and I would therefore request
that any scrutiny is completed as soon as possible.
10 February 1999
Letter from Lord Tordoff, Chairman of
the Committee, to Kate Hoey MP, Parliamentary Under-Secretary
of State, Home Office
Sub-Committee F considered you Supplementary
Explanatory Memorandum and the latest versions of the two Council
Decisions incorporating the Schengen acquis at its meeting
on 17 March.
In our Report, Incorporating the Schengen
acquis into the European Union (31st report 1997-98, HL Paper
139), we urged the Government to produce an accessible document
which breaks down the elements of the acquis and sets out
the implications of the allocation for future policy on exercising
the UK's opt-in. The Committee is pleased to note the improvement
in the presentation of the draft Decisions. However, the Supplementary
Explanatory Memorandum still does not give any indication of the
Government's view of the proposed allocation, even though this
will affect the terms on which the UK may participate in proposals
or initiatives building on the acquis under Article 5 of
the Schengen Protocol.
The Committee intends to hold the draft Decisions
under scruitiny until such time as a complete list of the acquis
and its proposed allocation to legal bases in the EU Treaties
is available. In the meantime there are two points, in particular,
on which we would be grateful for your views. The first concerns
the last recital (in brackets) of the draft Decision on the allocation
of legal bases. This indicates that Spain will provide a text
"on development of future acquis taking account of
the participation of Denmark, Norway and Iceland". Can you
explain what is intended by this recital? Can you also confirm
that the Government will not agree any language which might prejudice
the opportunities available to the UK (and Ireland) to opt in
to proposals and initiatives building on the Schengen acquis
under Article 5 of the Schengen Protocol?
The second, more technical, point concerns the
proposed allocation of the Schengen Executive Committee decision
SCH/Com-ex (93) 22 rev to Article 207 of the EC Treaty. The Committee
would be grateful if you could explain why you consider this to
be the correct allocation and, in particular, how the matters
with which the Executive Committee decision deals (including Annexes
to instruments allocated to other Treaty Articles) fall within
the scope of the powers in Article 207. In so doing, it would
be helpful if you could set out the Government's position on:
(i) the relationship between Article 207
and the general obligation in Article 254 of the EC Treaty to
publish Community legislation;
(ii) the legal basis in the Treaties or the
Schengen Protocol justifying Article 1(2) of the draft Decision
and the proposed suppression of publication of legislative matters
binding on Members States.
The Committee would be grateful if you could
also confirm that, even if it is permissible under the Treaties
to override the obligation to publish as regards existing Schengen
acquis classified as "confidential" or "secret",
any future amendments to or development of that acquis
would be subject to the general obligation to publish under Article
254 of the EC Treaty.
The Committee was informed during its enquiry
on the incorporation of the Schengen acquis that, once
the process of incorporation had been completed, "the disclosure
and publication of the acquis would follow the European
Union rules" (paragraph 124 of the Report). The Committee
attached particular importance to the principles of openness,
transparency and legal certainty. Our concerns regarding the classification
of Schengen documents to be incorporated into the EU Treaties
were set out fully in paragraphs 117-128 of our Report. It is
not clear to us what legal or political justification there is
for incorporating the Executive Committee decision on confidentiality
as a measure made under Article 207 of the EC Treaty. We are,
therefore, keen to hear your views on this matter.
23 March 1999
Letter from Kate Hoey MP, Parliamentary
Under-Secretary of State, Home Office, to Lord Tordoff, Chairman
of the Committee
Thank you for your letter of 23 March, reporting
on the Committee's consideration of the draft Council Decisions
incorporating the Schengen acquis into the treaty structure of
the European Union.
Since the submission of those Decisions to Parliament
the Government has, as you may know, produced a further Memorandum
(submitted on 31 March) which sets out in more detail our views
on the content and implications of the Schengen acquis.
You expressed interest in the Government's view
of the proposed allocation. The United Kingdom has been fully
involved in the discussions on allocation and has throughout taken
the view that allocation to a legal base should reflect the contents
of a particular instrument. In our view, this has generally been
respected. Some of the most difficult questions of all allocation
remain unresolved, and we are continuing to contribute to this
discussion.
Your letter raised two specific questions on
the allocation. You asked what was meant by the last recital in
the preamble of document 6816/5/98. This reflects a suggestion
that Spain might produce a text on how the Schengen acquis might
be further developed in relation to the participation of Denmark,
Norway and Iceland. The United Kingdom is not aware of precisely
what was intended: nothing further has come of this proposal to
date, but we can undertake to provide the Committee with the wording
once it is made available. You also ask for confirmation that
the Government will not agree to language that might prejudice
the UK's (and Ireland's) ability to opt into proposals and initiatives
building on the Schengen acquis. The right of the UK and Ireland
to seek to participate in any of the provisions of the Schengen
acquis is enshrined in Article 5 of the Schengen Protocol itself
and we consider that this could not be circumscribed by any subsequent
language in, for example, a Council Decision. Nonetheless, we
would not want to agree any language which could be seen to limit
our future flexibility.
Your second, more technical point concerns the
allocation of Executive Committee decision SCH/Com-ex(93) 22 rev
to Article 207 TEC (ex Article 151 TEC). We believe this to be
the correct legal base for this decision because Article 207 TEC
is the legal base for the adoption of the Council's Rules of Procedure
which already enable the Council to adopt rules on the classification
of documents and to take decisions on the publication of documents
in the Official Journal.
Article 254 of the EC Treaty (ex Article 191)
provides for the publication in the Official Journal of certain
Council acts. It does not, however, impose a general obligation
to publish Community legislation as you suggest. Article 254(1)
provides for the publication of regulations, directives and decisions
adopted under the co-decision procedure. Article 254(2) provides
for the publication of Council and Commission regulations and
directives addressed to all Member States. Other directives, decisions
and recommendations are not subject to the publication requirement.
Nor of course does this requirement apply to any measures adopted
pursuant to Title VI of the Treaty on European Union. Arrangements
for the publication of measures falling outside the scope of Article
254 are contained in the Council's Rules of Procedure. Article
18 of those Rules provides that conventions adopted pursuant to
Title VI TEU are to be published in the Official Journal, but
the Council is to decide on a case by case basis with respect
to the publication of other measures falling outside the scope
of Article 254 TEC.
Article 254 TEC does not apply to the Schengen
acquis, so there is no obligation on the Council to publish the
acquis in the Official Journal. For this reason, specific provision
has been made in the draft Decision defining the Schengen acquis
for publication of the acquis with the exception of documents
currently considered to be confidential. Following incorporation,
it will be open to the Council to decide to publish these documents
in accordance with the Rules of Procedure. Moreover, proposals
to build on the Schengen acquis following incorporation will be
subject to the relevant provisions of the Treaties. Thus, measures
building on the Schengen acquis which fall within the scope of
Article 254 TEC will have to be published in the Official Journal.
In respect of measures not falling within the scope of Article
254 TEC, the Council will have to decide on a case by case basis
in accordance with its Rules of Procedure whether they are to
be published.
While the United Kingdom supports, in the interests
of transparency, publication of as wide a range of documents as
possible, it accepts that there are some documents for which publication
may not be in the public interest. An example would be the annex
to the Common Consular Instructions on Visas that gives the technical
specifications for visa stickers, where publication would facilitate
forgery of visa stickers and thus undermine the immigration control.
I hope this answers your questions and is helpful
to the Committee's further consideration of these documents.
19 April 1999
Letter from Kate Hoey MP, Parliamentary
Under-Secretary of State, Home Office, to Lord Tordoff, Chairman
of the Committee
As you know, the incorporation of the Schengen
acquis into the EU will take effect on entry into force of the
Treaty of Amsterdam, which takes place on 1 May. I am writing
to give you notification of the Decisions which it is intended
will be adopted by the Council to give effect to the incorporation
of Schengen. Subject to obtaining the final few outstanding documents
of the Schengen acquis and agreeing their legal base allocation,
as appropriate, the Government will support the adoption of all
those documents in which it has a vote.
I am enclosing, for your information, copies
of the latest versions we have available of these instruments.
I shall ask officials to supply you with the final versions which
are agreed, once we receive them. A number of the documents have
already been submitted to the Committee for scrutiny at an earlier
stage of their development. Three are new to the Committee:
— Schengen 26—An Association
Agreement which has been negotiated by the 13 EU members of Schengen
with Norway and Iceland to enable the latter to continue to participate
in Schengen following its incorporation. This is submitted to
the Committee for information, but does not directly concern the
UK. A separate agreement is under negotiation to establish arrangements
for co-operation between the UK and Ireland and Norway and Iceland
in areas of the acquis where we choose to participate;
— Schengen 17—A decision establishing
the EU's internal rules for the operation of the association agreement
with Norway and Iceland and for the preparation of an EU common
position if the termination of the agreement is at issue; and
— Schengen 23—on arrangements
for the operation of the Joint Supervisory Authority responsible
for overseeing the SIS data protection provisions.
We shall prepare an Explanatory Memorandum for
the Committee on these latter two measures. The rest are documents
of which you have already seen previous versions.
SCHENGEN 6 REV
3
A Decision defining the Schengen acquis for
the purpose of its incorporation into the EU. The Decision excludes
measures which are obsolete because overtaken by newer Schengen
provisions, or because superseded by other European Union measures.
The definitive list of the acquis is not to be agreed until after
the last meeting of the Schengen Executive Committee on 28 April.
Although we have participated in the development of this measure,
the UK and Ireland, as non-Schengen states, do not have a vote
on its adoption.
SCHENGEN 11 REV
6
This Decision allocates the Schengen acquis
to a legal base in the EC Treaties. The Decision covers all areas
of the acquis except the Schengen Information System. In the absence
of agreement among Member States, it was decided to recommend
to the Council not to allocate a legal base. In accordance with
Article 2.1, paragraph 4 of the Schengen Protocol, the SIS will
therefore fall automatically to a Third Pillar base as an interim
arrangement.
SCHENGEN 1 REV
2
The Decision is concerned with the transfer
of contractual responsibilities for the SIS to the Council Secretariat.
(It earlier raised the issue of contractual liability, which has
since been resolved satisfactorily, and on which I have written
separately to you.)
SCHENGEN 14 REV
1
Following from Schengen 1, the Decision establishes
financial regulations for the management of the SIS contracts
by the Council Secretariat. The management of the contracts does
not fall within normal EU budgetary arrangements, so specific
provision is required. The provision does not apply directly to
the UK until our participation in the SIS takes effect. However,
under Article 3 of Schengen 1, non-contractual liability for the
administrative management of the SIS contracts will be treated
as Community administrative expenditure, ie will be shared between
all 15 Member States. The UK does not have a vote on this measure.
We understand the Schengen Executive Committee
will adopt a number of new Decisions at its final meeting on 28
April. These will need to be incorporated into the Decisions defining
and allocating the acquis (Schengen 6 and 11) along with a number
of other recent Executive Committee Decisions which we have not
yet seen. I will arrange for copies of the documents to be sent
to the Committee as soon as possible. We shall clearly ensure
that we receive the outstanding documents and agree to their allocation
before finally agreeing the Decisions.
28 April 1999
Letter from Lord Tordoff, Chairman of
the Committee, to Kate Hoey MP, Parliamentary Under-Secretary
of State, Home Office
Sub-Committee F (Social Affairs, Education and
Home Affairs) has considered the Association Agreement between
the 13 EU members of Schengen and Norway and Iceland (Schengen
26 Add 1 Rev 1), the Decision establishing the EU's internal rules
for the operation of the Association Agreement (Schengen 17 Rev
2), and the Decision concerning the Joint Supervisory Authority
(Schengen 23 Rev 1).
The Committee is grateful for the opportunity
to examine these documents although we understand that the Association
Agreement was signed on 18 May and that the other two documents
were also adopted in May. The Committee notes that the arrangements
for determining the areas of Schengen-derived co-operation with
which Iceland and Norway may be associated will have important
implications for the UK's future participation in parts of the
Schengen acquis. In particular, the areas identified in
Article 1 (G)-(I) of the Decision establishing procedures for
applying the Association Agreement correspond to the areas described
in the UK's application to participate in the Schengen acquis.
The Committee would welcome clarification of
one point arising from the Association Agreement. Article 7 requires
the 13 EU Schengen States and Iceland and Norway to agree criteria
and mechanisms for establishing the State responsible for an asylum
application lodged in any one of the Member States, Iceland or
Norway. This would appear to be a development of the Dublin Convention
rather than a development of the Schengen acquis. Article 6(1)
of the Schengen Protocol, which provides the legal basis for the
Agreement, only refers to the association of Iceland and Norway
with "the implementation of the Schengen acquis and
its further development". Can you explain how Article 7 relates
to the Schengen acquis?
The Committee would be grateful for copies of
the final versions of Schengen Decisions and related documents
adopted by the Council since 1 May.
24 June 1999
Letter from the Immigration and Nationality
Directorate to Lord Tordoff, Chairman of the Committee
When Kate Hoey wrote to you on 28 April to notify
you of a number of draft Council Decisions related to the incorporation
of Schengen into the EU, she undertook to let you have copies
of the final versions once they were agreed. We are still waiting
to receive final versions of most of these documents, but I thought
it would be helpful in the interim to let you know which Decisions
have been adopted and when.
Adopted by written procedure on 1 May
Schengen 29—Council Decision laying down
the detailed arrangements for the integration of the Schengen
Secretariat into the General Secretariat of the Council.
Schengen 30—Council Decision on the rules
applicable to national experts on detachment to the General Secretariat
of the Council in the context of the implementation of the Protocol
integrating the Schengen acquis into the framework of the European
Union.
Final versions of these Decisions are attached.
They relate purely to administrative arrangements within the Council
and have not previously been deposited with Parliament.
Adopted by written procedure on 3 May
Schengen 28—Council Decision authorising
the Secretary-General of the EU to act as representative of certain
member states for the purposes of concluding contracts relating
to the installation and functioning of the "help Desk Server"
of the Management Unit and of the SIRENE Network Phase II and
to manage such contracts (previously Schengen 1). Final version
attached.
Schengen 34—Council Decision on the establishment
of a Financial Regulation governing the budgetary aspects of the
management by the Secretary General of the Council, of contracts
concluded in his name, on behalf of certain Member States, relating
to the installation and functioning of the "help Desk Server"
of the Management Unit and of the SIRENE Network Phase II and
to manage such contracts (previously Schengen 14).
Adopted at General Affairs Council on 17 May
Schengen 26 rev 1, Schengen 26 add 1 rev 1 and
Schengen 44 rev 1 (cover note from Coreper to Council and statements)—Council
Decision on the Conclusion of the Agreement with the Republic
of Iceland and the Kingdom of Norway concerning the latters' association
with the implementation, application and development of the Schengen
acquis.
Schengen 37 (cover note) and Schengen 38—Council
Decision on certain arrangements for the application of the Agreement
concluded by the Council and the Republic of Iceland and the Kingdom
of Norway concerning the association of those States with the
implementation, application and further development of the Schengen
acquis (previously Schengen 17 rev 2).
Adopted at Research Council on 20 May
Schengen 35 rev 1 (cover note) and 45—Council
Decision concerning the Joint Supervisory Authority set up under
Article 115 of the Convention applying the Schengen Agreement
(previously Schengen 23 rev 1)
Schengen 39 and 40 (cover note)—Council
Decision concerning the definition of the Schengen acquis (previously
Schengen 6).
Schengen 41 and 42 (cover note and statements
made on adoption)—Council Decision determining the legal
basis for the Schengen Acquis (previously Schengen 11 rev 9).
We will let you have the final version of these
documents as soon as we have received them from the Council Secretariat.
2 June 1999
Letter from Kate Hoey MP, Parliamentary
Under-Secretary of State, Home Office, to Lord Tordoff, Chairman
of the Committee
I enclose an Explanatory Memorandum in respect
of document JA1 44 (9139/99)—the result of negotiations
with Iceland and Norway on the conclusion of an Agreement under
Article 6(2) of the Schengen Protocol.
This Agreement builds on Schengen 26 which,
in accordance with Article 6(1) of the Schengen Protocol, establishes
an agreement between the 13 Schengen States and Norway and Iceland,
which the Committee has already seen. This draft Decision extends
the obligations established by that Agreement to the United Kingdom
and Ireland in areas of the Schengen acquis which apply to us.
We have deposited the text of this Agreement
with Parliament at the earliest opportunity following its finalisation
at Coreper on 16 June. Prior to that it has remained confidential
during its negotiation with Norway and Iceland. We understand
that the German Presidency wish to conclude the Agreement before
the end of their tenure of office. It is likely that it will be
tabled for agreement by the Culture Council on 28 June, with a
view to signature on 30 June.
We have entered a scrutiny reserve on the proposal
but have no outstanding concerns with the text and are content
with it as it stands. The Government's view is that it would be
highly undesirable for us to maintain that reserve when final
agreement is sought on the measure. There will be an inevitable
read-across to our application to participate in areas of the
Schengen acquis, which is currently under consideration by the
Council (also submitted to the Committee). It is essential that
we gain as much support as possible to ensure that the application
receives sympathetic consideration; as you know, it is subject
to the unanimous approval of the Schengen Member States.
I realise that the Committee may not be able
to complete its consideration of the Agreement by 28 June. I do
regret that we may therefore need to depart from normal scrutiny
procedures in this case but it is essential that we avoid blocking
the measure for the reasons I have explained. There will, however,
be a further opportunity for Parliament to scrutinise this agreement
when we bring forward implementing legislation.
21 June 1999
Letter from Lord Tordoff, Chairman of
the Committee, to Kate Hoey MP, Parliamentary Under-Secretary
of State, Home Office
Sub-Committee F (Social Affairs, Education and Home
Affairs) considered the Agreement between Ireland and the UK,
on the one hand, and Iceland and Norway on the other, at its meeting
on 30 June. The Sub-Committee also had before it the Presidency
Note on the UK's application to participate in certain provisions
of the Schengen acquis.
The Sub-Committee noted the reasons for the
late deposit of the text of the Agreement and is grateful for
your explanation. Notwithstanding, the Sub-Committee wishes to
express its strong disappointment at Member States' apparent disregard
for the spirit of the Protocol on the Role of National Parliaments.
The desire of the German Presidency to secure agreement before
the end of its term of office does not seem a sufficient reason
to override the six week scrutiny period, particularly given this
Committee's interest in the incorporation of the acquis. The
value of the Protocol will be greatly reduced if Member States
are not willing to resist the inevitable, eleventh hour pressures
of an outgoing Presidency.
The Sub-Committee has noted your intention to
implement the Agreement by means of an Order under section 1(3)
of the European Communities Act 1972. The Decisions incorporating
the Schengen acquis have allocated a number of provisions
to legal bases in the Third Pillar (Title VI). I would therefore
welcome an explanation of your reasons for considering that implementation
of the Agreement by means of an Order is appropriate.
The Sub-Committee is content to clear from scrutiny
the Presidency Note detailing the legislative and operational
changes which will be required to permit UK participation in parts
of the acquis covered by its application. The Sub-Committee
wishes to be informed of developments and, in particular, to have
early sight of the Commission's opinion.
1 July 1999
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