The First Draft Decision: Defining
the Schengen Acquis to be Incorporated
66. The first draft Decision
(Schengen 14, Rev 1) is printed in Appendix 3 of this Report.
It is based on Article 2(1) of the Schengen Protocol which requires
the 13 EU Member States party to the Schengen agreements to define
the relevant acquis for incorporation into the EU Treaties.
The substance of the draft Decision is divided between two Annexes.
67. Annex A establishes
a list, still incomplete a year after the agreement of the Amsterdam
Treaty, of the acts constituting the Schengen acquis. This
includes the decisions and declarations of the Schengen Executive
Committee listed by document reference number only, with no indication
as to their content. Our own summary of the titles of these decisions
and declarations is in Appendix 6. Acts of subordinate bodies
also form part of the acquis but these have not yet been
identified.
68. Annex B identifies
redundant provisions of the acquis which will not, according
to the Council, require a legal base in the EU Treaties. A provision
will not need to be allocated to a legal base for any one of the
following reasons:
(i) it is no longer operative;
(ii) it has been replaced
by provisions of Community law or other acts applicable to all
Member States;
(iii) it remains an area
of exclusive national competence;
(iv) it is not intended
to have legal effects.
69. Basing itself on these
criteria, the Council does not intend to incorporate into the
EU Treaties any of the provisions of the 1985 Schengen Agreement
or the Protocols of Accession. Most provisions of the 1990 Schengen
Convention (and some of the provisions of the Accession Agreements)
will be incorporated, but there are some important exceptions
covering areas such as asylum (Articles 28-38 and 135), extradition
(Article 60), firearms and ammunition (Articles 77-91), transport
and movement of goods (Articles 120-125), and the role and functioning
of the Executive Committee (Articles 131-133). We explore the
reasons for these exceptions in Section B of Part 4.
70. The Council has not
yet established which acts, decisions or declarations of the Executive
Committee or its subordinate bodies will need to be incorporated
into the EU Treaties.
The Second Draft Decision: Allocation
to a Legal Base in the EU Treaties
71. Once the 13 Schengen
States have established the relevant acquis for incorporation
into the EU Treaties, all 15 EU Member States must agree on its
allocation to specific Articles in the EC Treaty or TEU[81].
This is the purpose of the second draft Decision (Schengen
11, Rev 2), printed in Appendix 3 of this Report. The allocation
is based on the new numbering of Treaty Articles introduced by
the Amsterdam Treaty.
72. According to the Home
Office, "allocation of a legal base, where appropriate, is
made on the basis of the content of the Schengen provision, and
its match with an appropriate Article in the Treaty establishing
the European Communities, the Treaty on European Union, or the
Schengen Protocol. Where the Schengen provision contains both
First Pillar and Third Pillar elements, a dual legal base is allocated"
(p 45).
73. The second draft Decision
focuses mainly on the 1990 Schengen Convention. The proposed allocation
is set out in Annex A of the draft. The Council has determined
that about two-thirds of the Articles of the Convention to require
a legal base in the EU Treaties. The letters "P.M."
in the draft Decision indicate that a legal base has not yet been
allocated to the provisions concerning the Schengen Information
System (Articles 92-119) and the territorial scope of the Convention
(Article 138). The number of excised footnotes suggests that some
Member States still have a number of reservations as to the allocation
made for the remaining Convention Articles.
74. Annex B sets out the
allocation in relation to the Accession Agreements with the eight
states which have joined the original five signatories since 1985.
No legal bases have yet been allocated to the decisions, declarations
or acts of the Schengen Executive Committee or its subordinate
bodies (Annexes C and D).
61 First recital of the Preamble to the 1985 Schengen
Agreement. Back
62
A view reinforced by Article 142 of the Convention which envisages
that the latter may be replaced by agreements on the completion
of an area without internal frontiers involving all EU Members.
Back
63
"Defining the Schengen Acquis", 21st Report,
1997-98, HL Paper 87, p 2 of the Minutes of Evidence. Back
64
Fabio Evangelisti, Chairman of the Italian Parliamentary Committee
monitoring the Schengen and Europol Conventions, in a speech at
King's College London on 19 June 1998. Back
65
Essay by P. Boeles on "Schengen and the rule of law"
in a report by the Dutch Standing Committee of Experts on International
Migration, Refugee and Criminal Law (the Meijers Committee) on
Schengen in 1992. Back
66
Elspeth Guild: "The Schengen Agreement: A Study in the
Legitimacy of Identity and Separation", published in
a 1997 Dutch study on the Schengen agreements, "Het Akkoord
van Schengen en Vreemdelingen", edited by P.R. Giuseppin
and W.A.M. Jansen. Back
67
European Convention for the Protection of Human Rights and Fundamental
Freedoms, signed on 4 November 1950, and Articles 6(2) & 46(d)
of the TEU. Back
68
Article 39 of the TEU and Article 67 of the EC Treaty, as renumbered
by the Amsterdam Treaty. Back
69
Protocol on the role of national Parliaments in the EU, annexed
to the EC Treaty and the TEU. Back
70
Article 2(1), third paragraph, of the Schengen Protocol. See
also Article 35 of the TEU and Article 68 of the EC Treaty, as
renumbered by the Amsterdam Treaty. Back
71
Article 61(a) of the renumbered EC Treaty. Back
72
Protocol on the application of certain aspects of Article 7a of
the Treaty establishing the European Community to the United Kingdom
and Ireland, annexed to the EC Treaty and the TEU. Back
73
Protocol on the position of the United Kingdom and Ireland, annexed
to the EC Treaty and the TEU. Back
74
Protocol on the position of Denmark, annexed to the EC Treaty
and the TEU. Back
75
Articles 67 & 68 of the renumbered EC Treaty. Back
76
The provisions on the Court's jurisdiction in Title VI are in
Article 35 of the renumbered TEU. Back
77
Article 1 of the Protocol integrating the Schengen acquis
into the framework of the European Union, annexed to the EC Treaty
and the TEU. Back
78
Article 2(1), second sub-paragraph, of the Schengen Protocol. Back
79
Article 2(1), first sub-paragraph, of the Schengen Protocol. Back
80
Article 2(1), fourth sub-paragraph, of the Schengen Protocol. Back
81
Article 2(1), second sentence of the second sub-paragraph, of
the Schengen Protocol. Back
