House of Lords - European Communities

Select Committee on European Communities 31st Report

PART 2 BACKGROUND

14. Article 3c of the EC Treaty includes as a Community objective the creation of "an internal market characterized by the abolition, as between Member States, of obstacles to the free movement of goods, persons, services and capital". The free flow of persons as an essential element of the internal market is spelt out in Article 7a of the EC Treaty (to be renumbered 14 upon entry into force of the 1997 Amsterdam Treaty) which defines the internal market as "an area without frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaty". Measures implementing these four economic freedoms may be adopted by a qualified majority. By the end of 1992 (the deadline for completing the internal market) the Community had adopted numerous measures to facilitate the flow of goods, services, and capital across the Community's internal borders without securing similar advances for the flow of persons other than "workers". Unanimity, with its attendant risk of deadlock, remains the general rule for the movement of persons. The United Kingdom has long disagreed with the other Member States on the Community's role in securing free movement for all persons (not just Community "workers") in a Europe free of frontier controls.

15. Some Member States, frustrated by the Community's failure to lift internal border controls on persons, decided to establish an independent framework within which they could take the necessary measures to secure free movement between themselves. The Agreement signed by France, Germany, and the Benelux countries (Belgium, Luxembourg and the Netherlands) in the border hamlet of Schengen in Luxembourg on 14 June 1985 served as a skeleton which was fleshed out by the 1990 Schengen Implementing Convention[1]. This Convention contains detailed provisions which provide the legal base for implementing the general principles first set out five years earlier in the 1985 Agreement. The principal aim of the Convention was to abolish checks on the movement of persons at internal borders within the Schengen area by transferring these to the external frontiers. To achieve this, wide-ranging "flanking" measures were required. These "flanking" measures covered such matters as asylum, visa and immigration policy, police co-operation, and the exchange of information. They were justified on public policy or national security grounds.

16. A number of these flanking measures were identified at the 1992 Maastricht Summit which agreed the Treaty on European Union (TEU) as "matters of common interest"[2] to all Member States. The TEU established a European Union built on a new three-pillared structure. The Third Pillar provides for Governments to cooperate with each other in the fields of justice and home affairs; under the Third Pillar the free movement of persons became one of the "objectives of the Union"[3]. As concrete measures to achieve this would still have to be agreed unanimously, their adoption could continue to be held hostage by a single Member State.

17. Since the original agreement was signed in 1985, almost all Member States have chosen to join the Schengen system. Of the 15 EU Member States, only Ireland and the United Kingdom have remained outside[4]. The United Kingdom has continued to insist on its right to maintain border controls on all persons seeking entry. This has now been formally recognised in the Treaty signed at Amsterdam in October 1997[5]. For Ireland the desire to maintain the Common Travel Area with the United Kingdom, characterized by the absence of passport controls, has precluded its participation in Schengen. By contrast, two non-EU countries, Iceland and Norway, have opted for formal co-operation with the Schengen countries in order to safeguard the integrity of the Nordic Passport Union[6]. This abolishes passport controls at the common borders between Denmark, Finland, Iceland, Norway and Sweden and enables their nationals to move freely or reside in any of the five Nordic States. For practical purposes, Iceland and Norway form part of the Schengen area.

18. The 1985 Schengen Agreement, the 1990 Schengen Convention and the Accession Protocols and Agreements signed by the eight EU Member States wishing to join the five original Schengen members, are referred to collectively in this Report as the Schengen agreements. As we will explain later, most Schengen States consider that the 1985 Agreement has no legal effect and that it has been superseded in its entirety by the 1990 Convention. Others, apparently a minority, disagree. It is, however, clear that the 1990 Convention and decisions adopted under it form the core of the Schengen acquis. We consider the main elements of the Convention below.

THE MAIN ELEMENTS OF THE SCHENGEN CONVENTION

(i) Removing Internal Border Controls

19. The "gradual abolition of controls at the common frontiers" is the overriding objective of the 1985 Schengen Agreement. The 1990 Convention establishes the institutional framework and means for achieving this. It does not seek to loosen or lift controls but, rather, to transfer these away from internal borders. This means that controls will take place within the territories of individual Schengen States or, more usually in the case of travellers subject to passport or visa checks, at the external frontiers of the Schengen area. For Schengen purposes, the United Kingdom is a "third country". Entry into any one of the Schengen States from the United Kingdom involves crossing an external frontier but, once within the Schengen area, the common borders between Schengen States should be invisible. Controls at the borders between Schengen States may, however, be re-instated at any time on the grounds of public policy or national security[7].

(ii) Freedom of Movement

20. Once a person is admitted into the Schengen area, he or she enjoys freedom of movement throughout the Schengen States[8]. But it is a qualified freedom. Although entry for nationals of EU Member States is subject only to a check to establish their identities, their substantive rights in such matters as movement and residence are still governed by Community law, to which the Convention is subservient[9]. For all non-EU nationals freedom of movement within the Schengen area is limited to three months. Moreover, there are stringent conditions for entry and more thorough checks which include not only "conditions governing entry, residence, work and exit but also checks to detect and prevent threats to the national security and public policy of the Contracting Parties"[10]. Most of the Schengen provisions regulating the movement of persons concern these third country nationals, classified as "aliens" in the Convention. In addition to travel documents and visas, they may be required to produce documents demonstrating "the purpose and the conditions of the planned visit" and proving that they have "adequate means of support" both for their stay and their return journey[11].

21. The conditions set out in the Convention establish a minimum threshold for entry common to all the Schengen States. But the actual conditions for entry may, by a process of cumulation, be even tighter. Schengen States, although obliged to refuse entry to any person who does not reach the minimum threshold for entry, are not similarly obliged to admit those who do[12]. In some respects the Convention enlarges, rather than extinguishes, individual Schengen States' national powers or discretion as regards the criteria for entry. Decisions made at a national level take effect throughout the Schengen area. So if any one Schengen State considers an alien to be a threat to its, or any of the other Schengen States', public policy, national security or international relations, then that alien must be refused entry into Schengen territory[13]. Exceptionally, however, a Schengen State may admit, into its own territory only, an alien who has failed to satisfy the entry conditions on "humanitarian grounds, on grounds of national interest or because of international obligations"[14].

22. The means for implementing the common entry conditions include harmonising visa policy[15], introducing carrier liability[16], and imposing penalties on those assisting unlawful entry[17].

23. Detailed provisions on the criteria for determining the State responsible for examining asylum applications no longer apply since the entry into force, on 1 September 1997, of the Dublin Convention[18]. This contains rules similar to those in the Schengen Convention but has a wider geographical scope as it applies in all EU Member States.

24. One requirement applicable both to nationals of EU Member States and "aliens" is to produce proof of identity and fill out a declaration form when staying in any commercially rented accommodation, such as hotels or camping sites[19].

(iii) Police Co-operation

25. Police co-operation is another key element of the Convention. This is based on mutual assistance between police authorities in the Schengen States to prevent and detect criminal offences, provided this does not involve the application of "measures of constraint" on the part of the police from whom assistance is sought[20]. Police authorities may also, on their own initiative, exchange information without a formal request for assistance if this may help "prevent future crime and offences against or threats to public policy and security"[21]. This is one of the tasks which "liaison officers", seconded in the framework of bilateral or multilateral agreements to police authorities in other Schengen States or to third countries, may perform[22].

26. Co-operation is not limited to exchanges of information, but may be operational in character. There are detailed rules on cross-border surveillance[23] and "hot pursuit"[24] which enable police officers from one Schengen State to cross the border into another to continue their operations. In urgent cases, this can be done without obtaining prior authorization. A third type of operational co-operation concerns controlled deliveries of drugs[25]. This enables police and customs authorities to follow a drugs trail to its final destination.

(iv) Other Forms of Co-operation

27. Co-operation is intensified in a number of other areas, too. These include provisions on mutual assistance in criminal matters[26], extradition[27] and the transfer of the enforcement of criminal judgments[28] which build on existing international Conventions. There are also safeguards to prevent prosecution for the same offence in more than one Schengen State[29]. National laws on some aspects of drugs policy relating to illegal trafficking, seizure and confiscation of assets derived from such traffic, and controlled deliveries of drugs are to be harmonised[30], as are minimum rules on the purchase, possession, sale and surrender of firearms and ammunition[31].

(v) The Schengen Information System

28. A computerised joint information system - the Schengen Information System (SIS) - enables Schengen States to exchange data in order to "maintain public policy and security, including national security, and to apply the provisions of this Convention relating to the movement of persons"[32]. Each Schengen State has a national computer system (or "section") with a complete Schengen-wide data file. A central technical support function in Strasbourg ensures that data entered in one national system is automatically transmitted to the other sections. This means that all Schengen States have access to a common pool of data via their own national systems.

29. The persons in relation to whom data may be stored in the SIS include those being sought for extradition, "aliens" whose entry is objected to by any one Schengen State, missing persons or persons deemed to be in need of police protection, and witnesses and persons to be summoned or notified by judicial authorities in connection with criminal proceedings[33]. In addition, data may be included on persons or vehicles for the purposes of carrying out "discreet surveillance or specific checks"[34]. Personal data entered for this purpose must relate to an individual suspected of committing or being likely to commit "extremely serious offences" or who may present a serious threat, including to national security[35].

30. The SIS may also contain information on objects, such as stolen vehicles, firearms, identity papers or blank official documents, and bank notes[36].

31. The personal data which may be entered in the SIS include, in addition to name, date and place of birth, sex and nationality, "any specific, objective and physical characteristics not subject to change" as well as information indicating whether a person may be armed or violent[37]. Personal data revealing racial origin, political opinions or religious or other beliefs, as well as personal data concerning health or sexual life, must not be entered in the SIS[38]. It is not clear whether this prohibition would preclude the inclusion of such data if it were characterized as a permanent, specific, objective and physical characteristic (for example, racial origin) or if it were considered relevant to preventing threats to public safety or security[39].

32. Access to data contained in the SIS is restricted to officials responsible for border, police or customs checks and those concerned with the entry and movement of aliens[40].

(vi) Data Protection

33. The exchange of information is a crucial element of the co-operation provided for in the Convention. It arises specifically in relation to external border checks and surveillance[41], violations of national laws on the entry and residence of aliens[42], asylum matters[43], mutual assistance and other co-operation between police authorities[44], mutual assistance in criminal matters[45], and the purchase and possession of firearms[46].

34. The data protection rules in the Convention are complex and multi-layered. There are general data protection rules which cover most of the areas mentioned above. Then there are specific rules which apply to personal data entered in the SIS and to data exchanged in relation to asylum matters.

(a) The General Rules

35. All Schengen States must adopt national laws ensuring a level of data protection at least equal to that provided for in the 1981 Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data. The Council of Europe standards apply to all data processed automatically, and to some manually processed data. There are additional criteria on limiting the categories of users and the purposes for which data may be used, accuracy of data, recording of the transmission and receipt of data, and liability for damage caused by the transmission and use of inaccurate data. These criteria do not, however, apply uniformly to every type of data exchange (the rules may vary according to how the data is processed and recorded), nor do they cover every area in which data may be exchanged[47].

36. Before exchanging any data under the Convention, each Schengen State must establish an independent national supervisory authority to monitor compliance with the data protection rules[48]. There are additional safeguards for data exchanged between police authorities, based on the standards set out in the 1987 Council of Europe Recommendation regulating the use of personal data in the police sector[49]. These are supplemented by specific conditions for information exchanged without a prior request in the general interests of crime prevention, public policy and security[50].

(b) The Schengen Information System

37. In respect of data recorded in the SIS, Schengen States are required to ensure at national level "a degree of protection of personal date at least equal to that resulting from the principles laid down in" the 1981 Council of Europe Convention and the 1987 Recommendation mentioned above. Schengen States may use data stored in the SIS soley for the purposes for which it was entered. There are time limits for the storage of certain types of data and a requirement for periodic reviews of the need to hold personal data. Each Schengen State is responsible for the accuracy and lawfulness of data entered in its national section of the SIS, for correcting or deleting inaccurate data, and for adopting the requisite controls to ensure the security of data. There is an important role for national law too, in establishing the procedures for exercising the right of access to data stored in the SIS. Data may be withheld "to protect the rights and freedoms of others", to obviate a risk that disclosure would thwart the purpose for which the data was entered, or to maintain discreet surveillance. There is a right to bring legal proceedings to require the correction or deletion of inaccurate information and obtain compensation, accompanied by a joint undertaking on the part of all Schengen States to enforce final decisions.

38. The independent national supervisory authority responsible in each Schengen State for monitoring compliance with the general data protection rules of the Schengen Convention (see paragraph 36 above) must also supervise the data file of the national section of the SIS. Representatives from each national body serve on a joint supervisory authority whose task is to supervise the central technical support function of the SIS in Strasbourg[51].

(c) Asylum Matters

39. The Convention provides for an extensive exchange of information on matters relating to asylum policy and specific data on asylum seekers. Personal data may include "any . . . details needed to establish the asylum seeker's identity". It must be communicated solely for the purpose of determining which Schengen State is responsible for processing the asylum application and then for the actual processing of that application. Asylum seekers do not have a right of access to their personal data, but are "entitled to be informed, at their request, of information exchanged which concerns them provided that this is available". They are also "entitled to demand its correction or deletion" if it is incorrect. There is no explicit provision on liability to compensate for damage resulting from the transmission of inaccurate data, nor does the Convention state how asylum seekers are to formulate or give effect to their right to be informed. Moreover, the standards set out in the 1981 Data Protection Convention apply only to automatically processed data. Effective, but unspecified, checks by national authorities must be carried out on data held in other non-automated files[52].

(vii) Transport and Movement of Goods

40. A small number of provisions concern measures to facilitate the movement of goods across internal borders and enhance co-operation between customs authorities[53].

(viii) The Executive Committee

41. This is the body which has been responsible for implementing the Convention. It comprises one Minister from each Schengen State and has decision-making powers which it must exercise by unanimity[54]. The Schengen Executive Committee is therefore the equivalent of the EU Council of Ministers, bringing together 13 of the 15 Ministers who form the Justice and Home Affairs Council. Like the EU Council of Ministers, the Executive Committee has a six-monthly rotating Presidency. According to its Rules of Procedure[55] it does not meet in public and its deliberations are secret unless the Committee decides otherwise. The publication of Executive Committee decisions is governed by the national laws in each of the Schengen States, except in the case of decisions which are declared to be confidential at the time of their adoption.

42. The EC Commission is generally invited to meetings of the Executive Committee and its subordinate bodies but has no formal role in decision-making. A Central Group of senior officials (a body comparable to the Committee of Permanent Representatives in the First Pillar, the Political Committee in the Second Pillar, and the K.4 Committee in the Third Pillar) prepares the Committee's work and may also set up working groups. Once a draft decision has been submitted to the Executive Committee, any member may request a grace period of up to two months to allow for consultations or parliamentary approval. Once this period has elapsed, the draft will be re-submitted to the Executive Committee for final adoption.

43. The Executive Committee has an explicit decision-making role in many of the areas covered by the Convention. These include procedures for implementing border checks and surveillance[56], procedures relating to visas[57], compensation arrangements to correct financial imbalances resulting from the compulsory expulsion of aliens[58], the form and content of medical certificates enabling a person carrying narcotic drugs to move freely within the Schengen area[59], and amendments or additions to the list of firearms which are to be banned, require authorisation or must be declared[60].

44. The Executive Committee has generated a substantial volume of acquis since it first adopted its Rules of Procedure in December 1993. Some 100 decisions and over 50 declarations covering the period up to June 1997 have been deposited in the Library of this House. The subject matter ranges from administrative and financial matters to operational guidelines for law enforcement and border control officials and important statements of policy. Many of the earlier documents are in French or German. At least six are to our knowledge confidential and have not been disclosed. No official list of this acquis has been published. We have therefore compiled our own list which gives the document reference number and title of each decision or declaration made available to us. Our list is printed at Appendix 6. It is still not clear how much of the acquis produced by the Executive Committee will be incorporated within the EU treaties.