9 Establishing a new Schengen evaluation
mechanism
| (34045)
11846/12
—
| Draft Council Regulation on the establishment of an evaluation mechanism to verify the application of the Schengen acquis
|
| Legal base | Article 70 TFEU; QMV
|
| Department | Home Office
|
| Basis of consideration | Minister's letter of 24 June 2013
|
| Previous Committee Reports | HC 86-xxxiv (2012-13), chapter 6 (6 March 2013);
HC 86-xi (2012-13), chapter 11 (5 September 2013); and HC 86-vii (2012-13), chapter 2 (4 July 2012); also see (32216) (33153): HC 428-xxxviii (2010-12), chapter 2 (19 October 2011); (32216)—:HC 428-xviii (2010-11), chapter 5 (2 March 2011)
|
| Discussion in Council | Agreed 7 June 2013
|
| Committee's assessment | Politically important
|
| Committee's decision | Not cleared; further information requested
|
Background and previous scrutiny
9.1 The draft Regulation forms part of a wider package of
measures to improve governance of the Schengen area. It seeks
to strengthen an existing (intergovernmental) mechanism for monitoring
and evaluating the application of the Schengen acquis by
participating Member States. It is accompanied by a separate draft
Regulation amending the Schengen Borders Code.[23]
The draft Regulations are connected to the extent that serious
deficiencies in a Member State's implementation of the acquis
could result in a decision to re-introduce internal border controls
for a temporary period. However, the draft Regulations have different
legal bases. Changes to the Schengen Borders Code are based on
a Treaty Article exclusively concerned with border controls and,
as such, preclude UK participation. By contrast, after arduous
negotiation within the Council, the draft Regulation establishing
a new Schengen evaluation mechanism has a broader legal base which
enables the UK to participate to an extent commensurate with its
participation in the police and criminal law elements of the Schengen
acquis, unless the UK chooses to exercise its right to
opt out. Following a debate in European Committee in September
2012, the Government informed the Committee that it did not wish
to opt out and would therefore be bound by the Regulation once
adopted.
9.2 The Council reached a political agreement
on the draft Regulation in June 2012, but did so on the basis
of a legal base (Article 70 TFEU) which excluded any power of
co-decision for the European Parliament (EP). As a result, the
EP withdrew its cooperation on a number of unrelated EU justice
and home affairs measures. In February 2013, the Minister for
Crime Prevention (Mr Jeremy Browne) wrote to inform us that the
Presidency had embarked on "informal and extremely sensitive
discussions" with the EP with a view to exploring the scope
for a possible compromise. He considered that an acceptable deal
was within reach, described its main elements — these are
summarised in our Thirty-fourth Report of Session 2012-13, agreed
on 6 March 2013 — and invited us to grant a scrutiny waiver
so that a political agreement could be secured, after many years
of negotiation, at the Justice and Home Affairs Council on 7 March.
We agreed to grant a scrutiny waiver on the strength of the Minister's
assurance that the Presidency compromise was likely to represent
the best deal available for the UK. However, we asked the Minister
to inform us of the outcome of the Council and to provide us with
a copy of the document on which political agreement between the
Council and EP was based.
9.3 In the event, a compromise deal was not reached
in time for the 7 March Justice and Home Affairs Council and trilogue
discussions continued throughout April and May.
The Minister's letter of 24 June 2013
9.4 The Minister for Security (James Brokenshire)
informs us that the Presidency was able to confirm, at the 7 June
Justice and Home Affairs Council, that it had secured a compromise
deal with the EP. He expects the draft Regulation (and the related
draft Regulation amending the Schengen Borders Code, in which
the UK does not participate) to be formally adopted in July or
September and encloses copies of the compromise texts. He continues:
"I am pleased to report that the compromise
is in line with the Council's position on the SEM [Schengen evaluation
mechanism] and has also addressed all the remaining issues to
our satisfaction and benefit. While compromises were necessary
to secure EP agreement, they do not undermine UK participation
or our rights as part of a peer-to-peer system which involves
the Commission and EP.
"The final compromise texts confirm that:
- The legal base is Article 70
TFEU;
- The practical evaluation process is based on
Article 70 and is therefore that laid out in previous correspondence;
- The Commission accepts that it will have a coordination
and administrative support role, within the terms of Article 70,
and that the power to adopt recommendations and decisions will
rest solely with the Council;
- The EP and national Parliaments will be given
supervised access to restricted documents and will receive summary
reports which are edited for the public domain, although the exact
process will be set up by the Commission and will not be included
in the Regulation itself;
- The Commission will ask for risk analysis where
appropriate as part of its preparation for evaluations;
- The EP has also accepted that all Articles covering
the temporary re-imposition of border controls mechanism will
be in the SBC [Schengen Borders Code] (in which we do not participate);
and
- There will be no legal link between the SEM Regulation
and the SBC and the EP will have no rights as regards the SEM
Regulation which go beyond those allowed by the Article 70 legal
base. The Council has, however, agreed to consult the EP, through
an existing Council administrative process, as regards any future
proposals to amend the SEM Regulation."
9.5 He concludes:
"The adoption of this compromise will deliver
all UK negotiating objectives, including participation; mean that
the EU has fully delivered on the 2010 European Council's wishes
for consistency and stronger Schengen governance; and remove all
reasons which caused the EP to block progress on the five key
EU measures including the Passenger Name Records Directive and
the European Investigation Order."
Conclusion
9.6 It is clear that the European Parliament
has made significant gains during the course of informal trilogue
discussions on the draft Regulation. We note that Article 70
TFEU — the legal base for the draft Regulation — seeks
to ensure parity between the European Parliament and national
Parliaments by providing that both "shall be informed of
the content and results" of evaluations concerning the implementation
by Member States of EU policies in the justice and home affairs
field. The compromise text, however, suggests that there is a
clear imbalance in the information to be shared with the European
Parliament and national Parliaments. We note, for example, that
the European Parliament will have access to:
- multiannual and annual evaluation
programmes;
- Frontex risk analyses;
- Member States' replies to questionnaires on
their implementation of those aspects of the Schengen acquis
subject to evaluation;
- evaluation reports;
- recommendations made by the Council to address
any deficiencies identified in evaluation reports; and
- action plans drawn up by Member States to
implement the Council's recommendations, as well as regular progress
reports from the Commission.
9.7 By contrast, national Parliaments will
have access to:
- recommendations made by
the Council based on evaluation reports; and
- information on the content and results of
evaluations.
9.8 Whilst improving the European Parliament's
access to information on Schengen evaluations should, of itself,
ensure greater transparency, it is disappointing that the Government
and other Member States appear not to have pressed for more equal
access for their own national Parliaments. We understand that
Member States fought hard for the Regulation to be based on Article
70 TFEU in order to preserve the primacy of the role of the Council,
rather than the Commission, in establishing arrangements for evaluating
national implementation of the Schengen acquis or, in the
words of the Minister, to "ensure the Council's retention
of political power over Schengen."[24]
Logic would suggest that national Parliaments have an equal,
if not greater, interest in holding their own Governments to account
when deficiencies in the implementation of that acquis
are identified. In particular, we can see no reason why action
plans drawn up by Member States to address deficiencies in their
implementation of specific aspects of the acquis should
not also be shared with national Parliaments.
9.9 Before clearing the draft Regulation from
scrutiny, we ask the Minister to explain what efforts he made
within the Council to seek the equality of arms for national Parliaments
and the European Parliament which Article 70 TFEU clearly appears
to contemplate and why he considers that the disparity in access
to information concerning the evaluation mechanism is justified.
23 See (33152) 14357/11 (33514) -; HC 428-xxxviii (2010-12),
chapter 3 (19 October 2011). Back
24
See letter of 17 May 2012 from the Minister for Security (James
Brokenshire) to the Chair of the European Scrutiny Committee. Back
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