Select Committee on European Communities Twenty-First Report


17 March 1998

  By the Select Committee appointed to consider Community proposals, whether in draft or otherwise, to obtain all necessary information about them, and to make reports on those which, in the opinion of the Committee, raise important questions of policy or principle, and on other questions to which the Committee considers that the special attention of the House should be drawn.



  1.  The incorporation of the "Schengen acquis" into the framework of the European Union is one of the major features of the Treaty of Amsterdam. It will provide, for the Member States party to Schengen (ie all except the United Kingdom and Ireland), a substantial body of rules under the new Title IIIa of the EC Treaty contributing to "an area of freedom, security and justice".

  2.  The Schengen Agreement and Convention create an area without internal frontiers, with compensatory measures at the external frontier and supporting measures to fight illegal immigration and increase co-operation between police forces. Five States - Belgium, France, Germany, Luxembourg and the Netherlands - signed the Agreement at Schengen on 14 June 1985. Some thirteen Member States, together with two non-Member States, Norway and Iceland, have now become party to the Agreement and the Implementing Convention of 19 June 1990.

  3.  The position of the United Kingdom and Ireland, who are not bound by the Schengen acquis, is set out in Article 4 of a Protocol to the Treaty of Amsterdam[1]. They may at any time request to take part in some or all of the provisions of the acquis. That "opt-in" is not, however, an absolute right. The Council shall decide on the request by unanimity of the Member States party to Schengen and the requesting State. A Declaration[2] provides that the Council should seek the opinion of the Commission before it decides on a request under Article 4 by the United Kingdom and/or Ireland. The Schengen States undertake to make their best efforts to allow the United Kingdom and Ireland to avail themselves of the provisions of Article 4.

  4.  The "Schengen acquis" is defined in an Annex to the Protocol on integrating Schengen as the Schengen Agreement of 14 June 1985, the Implementing Convention of 19 June 1990, the Accession Protocols and Agreements and "Decisions and declarations adopted by the Executive Committee established by the 1990 Implementing Convention, as well as acts adopted for the implementation of the Convention by the organs upon which the Executive Committee has conferred decision making powers". This last category would appear to comprise some 3000 pages. There is as yet no definitive list or version, though it is hoped to agree one soon. The Government has agreed to deposit copies of the full acquis in both Houses, once the acquis has been definitively established.

  5.  A Declaration[3] to the Final Act of the Amsterdam Treaty calls for the necessary preparatory work on integrating the Schengen acquis to be undertaken in due time to be completed prior to the date of entry into force of the Treaty. That work is currently being undertaken by two Council Working Groups, which are chaired by the United Kingdom for the duration of its Presidency.

  6.  The first Working Group is concerned with the distribution of the provisions of the Schengen acquis between the First Pillar and the Third Pillar, and the allocation of the appropriate legal base to each provision. In broad terms, immigration and asylum matters go to the First Pillar, and police co-operation goes to the Third. There may be problems where provisions concern matters which belong in more than one Pillar; for example, the Schengen Information System is used predominantly for police purposes but is also used in immigration control.

  7.  The second Council Working Group is examining the question of the position of Norway and Iceland, which are members of, and have rights under, Schengen, within the new arrangements which would follow the ratification of the Amsterdam Treaty. Article 6 of the Protocol provides for Iceland and Norway to be associated with the implementation of the Schengen acquis and its further development. Two agreements on the future relationship are to be concluded, one with the Member States party to Schengen, the other with the United Kingdom and Ireland.

  8.  The culmination of the work of the first Council Working Group will be a draft decision of the Council, as described in the second paragraph of Article 2(1) of the Protocol, determining the legal basis of each of the provisions or decisions which constitute the Schengen acquis. That decision will be furnished by the Government for scrutiny by this Committee, when we would hope to have a sufficient opportunity to consider it in detail, taking evidence where necessary. Its importance as regards the substantive content of the new Title IIIA and of Title VI of the EC Treaty, and as regards procedures for change and judicial supervision, should not be underestimated.

  9.  In this Report, we make available for the information of the House oral evidence given to Sub-Committee F (Social Affairs, Education and Home Affairs) by Mr M. J. Eland, Deputy Director General (Policy), Immigration and Nationality Directorate, and Mrs L. Pallett, European Directorate of the Immigration and Nationality Directorate, Home Office, on the progress being made on the definition and integration of the Schengen acquis.

1   Protocol integrating the Schengen acquis into the framework of the European Union. Back

2   Declaration (45) on Article 4 of the Protocol integrating the Schengen acquis into the framework of the European Union. It was added in response to the concerns of the United Kingdom and Ireland that the requirement of unanimity could be used by certain Member States to block them participating in some or all of the Schengen acquisBack

3   Declaration (44) on Article 2 of the Protocol integrating the Schengen acquis into the framework of the European Union. Also Declaration (47) on Article 6 of the Protocol requires all necessary steps relating to the Agreements dealing with the ongoing relationship with Iceland and Norway to be completed in similar time.  Back

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