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
1 Not printed Back
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