Select Committee on Foreign Affairs Written Evidence


Letter to the Chairman of the Committee from the Parliamentary Under-Secretary of State, Home Office, 3 November 2004

EUROPEAN BORDER AGENCY REGULATION—UK POSITION

  The Committee will be aware of the difficult negotiations which have taken place over the past 12 months on the European Border Agency Regulation. Although the UK was able to secure the inclusion of a provision in the Regulation providing for a form of operational co-operation with the Agency, we have been excluded from participation in adoption of the Regulation.

  When the Regulation was adopted at the 25-26 October JHA Council, the UK tabled a unilateral declaration to preserve its legal position as we do not agree with our exclusion from the Regulation. We now intend to make an application to the ECJ challenging the UK's exclusion. But this does not affect our support in principle for the Agency, and will not affect plans for the Agency to be up and running by May 2005. We are making the challenge because we consider that the UK has been wrongly prevented from participating in adoption of the Border Agency Regulation and it is important to establish the correct legal position, both in relation to this Regulation and future external building measures. Over the last twelve months, the UK has been increasingly excluded from a number of measures that relate to the management of the EU external border. Our own legal advice states that the UK is able to opt-into measures even where we do not participate in the part of the original acquis on which the measure builds. The Council takes the contrary view and says that the UK must first participate in the part of the underlying acquis on which the measure builds. It will be beneficial to have a confirmed legal interpretation of the UK's right to participate in this type of measure.

  We will consider the impact of our exclusion from other measures, such as the Draft Council Regulation on standards for security features and biometrics in passports and travel documents, classified as Schengen Building Measures as and when they are adopted. We are in the process of informing our European counterparts of this decision.

  A copy of the final version of the Regulation is attached for information 10827/04.[1]

Caroline Flint MP

Parliamentary Under Secretary of State

Home Office

3 November 2004






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