Select Committee on European Communities 31st Report


  102.    The Committee identified 11 more detailed areas of concern which we wished to investigate further. They are examined below, and cover the following topics:

  •   The role of the European Parliament (paragraphs 103-106)
  •   The progress so far made in defining the acquis (paragraphs 107-109)
  •   The efforts so far made by the Government and the Council to publish the acquis and to make Schengen comprehensible (paragraphs 110-116)
  •   Openness, Transparency and Legal Certainty (paragraphs 117-128)
  •   Exceptions to incorporation: why are some Schengen provisions being left out? (paragraphs 129-137)
  •   The consequences of non-incorporation (paragraphs 138-142)
  •   The progress so far made in allocating the acquis (paragraphs 143-145)
  •   The Schengen Information System (paragraphs 146-154)
  •   Splitting Schengen provisions between Pillars (paragraph 157)
  •   The use of dual legal bases (paragraph 158)
  •   The use of inappropriate legal bases: in general, and in specific cases (paragraphs 159-166)

The role of the European Parliament

  103.    The Home Office state in their Explanatory Note that there is no provision in the Schengen Protocol for the European Parliament either to be kept informed or to take part in the decisions allocating the acquis to a legal base in the EU Treaties. However, an "informal undertaking" has been given by the Minister of State at the FCO, as Presidency in office from January-June 1998, to keep the European Parliament informed (p 45).

  104.    Clearly this allocation will affect the European Parliament's prerogatives in the area of freedom, security and justice to be established once the Amsterdam Treaty enters into force. From that date, the European Parliament will have a consultative role in relation to binding measures introduced under Title IV of the EC Treaty (on visas, asylum, immigration and other policies related to the free movement of persons) or Title VI of the TEU (on police and judicial co-operation in criminal matters). After five years, however, there is the possibility of co-decision for Title IV measures. Moreover, the provisions of the EC Treaty which enable the European Parliament to challenge the legality of Council acts apply to Title IV. The European Parliament has no express power to do so in the case of binding decisions based on Title VI of the TEU[89].

  105.    The Committee asked Mr Eland whether the Council had sent the two draft Decisions and the documents so far available on the Schengen acquis to the European Parliament. He did not think they had. He was not even sure whether they had been sent by other Member States to their national Parliaments (Q 8).

  106.     We commend the Government for undertaking to involve the European Parliament but we do not consider that the European Parliament can be kept adequately informed if it has not been sent the relevant documentation.

Defining the Schengen Acquis

  107.    The Committee asked whether there was yet a definitive acquis. Mr Eland explained that the Schengen States were still deliberating on this and "the main question is just waiting for the Schengen countries themselves to actually produce some of these lower level decisions". Some further decisions of the Executive Committee and its subordinate bodies may need to be added to complete the acquis. As the Schengen acquis will evolve right up to actual incorporation, work in progress will also have to be taken into account. It is, in this respect, "a bit of a moving target" (QQ 11, 1).

  108.    The Minister undertook to deposit any further documents relating to the Schengen acquis as soon as the Government received them, though she believed that the bulk of them had already been made available. (Q 40)

  109.    The Committee draws attention again to the fact that national procedures for approving the Amsterdam Treaty incorporating the acquis will have been completed in many if not all EU countries before a definitive list of the provisions of the acquis has been made available. The Committee is concerned at Governments signing, and bringing into force, a set of arrangements to incorporate the acquis without first being clear what that acquis comprises.

Making Sense of the Acquis

  110.    The Committee asked the Government whether new, explanatory texts would be produced which would clarify, in simple terms, what the acquis is and how it will work once it has been incorporated in the EU Treaties.

  111.    The Minister agreed that "it would make a great deal of sense to have a clear statement" to which European citizens could refer, but was not sure "who should have the responsibility of producing that clear text". She foresaw a role for the European Parliament, in particular its Civil Liberties Committee, in producing some sort of text to unravel the complexity of the Schengen acquis and make it comprehensible for European citizens. Such work was unlikely to begin before the incorporation of the acquis had been completed. (Q 45)

  112.    The Committee considers that there is an urgent need for clarification and consolidation of the acquis now, before it is brought within the European Union framework. The onus must, in this respect, rest on the Council which has the responsibility under the Schengen Protocol for agreeing what constitutes the acquis and how it is to be allocated to legal bases in the EU Treaties. As the European Parliament has no formal role in the process of incorporation, we do not see how it could undertake this task. It is by no means clear to the Committee that Governments (let alone Parliaments or European citizens) understand the implications of the incorporation of the acquis. We have attempted to explain some of the implications here; but the need for clear, simple explanation by the Council is both urgent and acute.

Publication of the Acquis

  113.    Article 1(2) of the first draft Decision provides for publication of the acquis in the Official Journal, but this will only be after the Amsterdam Treaty has entered into force. (p 9) From that date, the basis for publishing binding EC instruments (regulations, directives and decisions) will be Article 254 (formerly 191) of the EC Treaty. Under this provision, Council regulations and directives addressed to all Member States which are based on the new Title IV of the EC Treaty will have to be published in the Official Journal. There is no similar provision for Third Pillar instruments, but a Declaration adopted at the Amsterdam Summit commits Member States to publishing initiatives for (and final versions of) common positions, framework decisions, decisions or conventions in the Official Journal "in accordance with the relevant Rules of Procedure of the Council and the Commission"[90]. These Rules must include specific provisions on access to the documents of each institution.

  114.    According to the Home Office, the provisions of the Schengen acquis which are to be incorporated will take effect as if they were secondary legislation (the types of instruments referred to above) adopted under the EC Treaty or the TEU (p 10). Mr Eland stated that "it is not the intention to produce new instruments but to simply incorporate all of the Schengen acquis" (Q 43). It does not seem that this will require the transposition of each provision of the acquis into the appropriate form of Treaty instrument. Publication would, therefore, appear to be based on Article 1(2) of the first draft Decision rather than Article 254 of the EC Treaty. If so, the 13 Schengen States themselves who will determine the extent of the obligation to publish the acquis and the grounds on which documents they classify as "confidential" or "secret" may be withheld.

  115.    The Committee believes that EU rules on publication of acts in the Official Journal agreed at Amsterdam should apply retrospectively to the existing Schengen acquis upon incorporation and that all the elements of the acquis should be published. This includes, in addition to the provisions of the 1990 Convention, the decisions and declarations of the Executive Committee and its subordinate bodies. The Executive Committee, as its name implies, is the executive decision-making body for the Schengen area. Its acts should be treated in the same way as acts of the Council and be subject to the same rules of disclosure.

  116.    The Committee regrets that the acquis will be formally published in the Official Journal only after it has been incorporated and taken effect within the framework of the EU Treaties. This is contrary to the usual practice of publishing binding legal instruments before they enter into force. We believe that the spirit, if not the letter, of the rules agreed at Amsterdam on publication in the Official Journal should apply to the existing as well as future acquis. We address the question of incorporation of confidential acquis provisions in the EC Treaty in paragraphs 126-128 below.

Openness, Transparency and Legal Certainty

  117.    The Committee attaches great importance to the principle of legal certainty. By this we mean that law-making procedures should be transparent and that laws affecting basic rights and freedoms should be accessible to citizens. There should be only a narrow exception for secrecy to protect national security or to prevent or detect crime. We were, therefore, greatly reassured by the Minister's statement that "legal certainty goes hand-in-hand with the maximum degree of openness". The Government's approach would be to ensure that "citizens know what it is that affects them and also know what ways they can have redress if they feel what has been agreed is not in their interests or what has been agreed has been implemented against them in an unfair way" (Q 46).

  118.    We are, however, concerned that the Government, while agreeing to incorporate the acquis, remain powerless to influence how much of it is brought into the public domain. Article 1(2) of the first draft Decision states that the Schengen acquis shall be published in the Official Journal, except "those of its provisions which at the time of the adoption of the present decision are classified as 'confidential' or 'secret' by the Schengen Executive Committee or by organs on which the Executive Committee has conferred decision-making powers". The Executive Committee comprises Ministers and officials from each of the Schengen States. The subordinate bodies (in effect the Schengen Central Group) comprise only officials. A decision to attach a confidential or secret classification can, it would seem, be made by officials alone. This would take precedence over national laws requiring disclosure of documents.

  119.    Under the Schengen system, a decision is classified confidential at the time of its adoption if any one State objects to its publication. One of the earliest decisions of the Executive Committee (deposited in the Library of this House) establishes three grounds on which certain documents must be kept confidential, "irrespective of the various national judicial rules"[91]. These are that (i) publication would be "counter to the objectives pursued"; (ii) documents contain "personalised data or a description of administrative procedures that should not be disclosed"; or (iii) documents include "elements pertaining to production procedures or even the security of external relations". None of these grounds is judicially reviewable. The decision then lists the following documents which must be kept confidential: a number of annexes to the Common Consular Instructions on Visas, the list of countries subject to visa requirements, the Common Manual, the SIRENE Manual[92], and three documents on narcotic drugs relating to external border controls, controlled deliveries and illicit export of drugs. There may be others of which we are not yet aware.

  120.    The Home Office have told us that Schengen States are reviewing the classification of documents. All or part of seven Executive Committee decisions (some of which the Home Office have not received) are currently classified as confidential. Those confidential documents which are available to the Home Office have not been deposited (p 9).

  121.    The Minister explained that the types of document which would not be made available were those broadly dealing with the detection of trans-national crime. She gave as examples technical advice enabling those operating border controls to identify forged, falsified or counterfeit documents: "They are the kind of documents which are needed for those enforcing the law but are not ones which are essential in terms of containing important policy information that ought to be in the public domain and, therefore, they are not documents as far as I understand it that Parliament should feel concerned about having access to". The Minister believed, and Mr Eland confirmed, that anything brought within the Union legal structure would be made available to United Kingdom Ministers so that "all the Schengen acquis that is being incorporated, even if it has not been published, will nevertheless still be seen by Ministers" . (QQ 41 & 42)

  122.    The Committee notes that one of the confidential documents referred to in paragraph 119 concerns the list of States whose nationals must be in possession of a visa when entering the Schengen area. This strikes the Committee as an important policy issue which does not fit into the category of document described by the Minister as dealing essentially with the detection of trans-national crime. We hope that this may be one of the documents whose classification is being reviewed by the Schengen countries. It certainly demonstrates an acute need for keen Ministerial oversight of the types of documents being treated as confidential.

  123.    The issue of access to classified Schengen Manuals has been raised in the European Parliament[93]. Responding to MEPs' concerns, the Commission has stated that "as most of the documents relating to Schengen are drawn up by the national authorities, access to them is and will remain subject to national law, with due regard for the rules on confidentiality unanimously decided by the Member States that signed the Schengen agreements". Access to Council or Commission documents relating to Schengen are covered by the institutions' code of conduct on public access. In the case of Schengen regulatory instruments, such as decisions of the Executive Committee or its subordinate bodies, "once the Amsterdam Treaty comes into force and the Schengen arrangements become part of EU law, the rules governing publication of acts in the Official Journal will apply".

  124.    Mr Eland made a similar point. Once the process of incorporation has been completed, "then the disclosure and publication of the acquis would follow the European Union rules". He hoped that "we would see a good deal more published once this is incorporated than is the case at present". Although the United Kingdom would wish to see "the maximum degree of openness consistent with the efficient operation of the system", he recognised that "we would have to go along with what the others said on this to a large extent". (QQ 20, 21)

  125.    There are three issues which concern the Committee. First, it is not clear to us that the Government, when they agreed to the incorporation of the acquis, ascertained how many provisions of the acquis were confidential and their essential subject matter.

  126.    Second, some of the 'confidential' Manuals cover issues such as visas which fall within Community competence. We do not know what basis or precedent there is for non-disclosure of instruments or documents which form part of Community law. This should be clarified before agreeing to incorporate as part of the acquis classified Schengen material.

  127.    Finally, there is a crucial distinction between laws regulating matters considered confidential for security or other reasons and the operational rules to implement them. While there may be circumstances in which non-disclosure of the latter may be justified, the laws on which they are based should be subject to public and parliamentary scrutiny.

  128.    Legal certainty should be the guiding principle for incorporation of the Schengen acquis. The process of incorporation should be transparent and the laws resulting from it should be accessible to citizens. We are concerned that the grounds on which Schengen States may classify documents as confidential go beyond the narrow exception we have suggested (see paragraph 117). We believe that the basis for non-disclosure of classified Schengen documents which concern matters within Community competence should be clarified before agreeing to their incorporation. There should, at least, be a summary of the confidential documents sufficient to identify their subject matter and to ensure that the correct allocation of legal base is made.

Exceptions to Incorporation

  129.    Article 2 of the first draft Decision states that there are four grounds on which provisions and decisions constituting part of the Schengen acquis will not be allocated to a legal base in the EU Treaties. Provisions and decisions will not be allocated to a base if:

    (i) they are no longer operative;

    (ii) they have been replaced by provisions of Community law or other acts applicable to all Member States;

    (iii) they belong to the exclusive competence of the Member States;

    (iv) they are not intended to have legal effects.

  130.    This jars with Article 2(1), second sentence of the second sub-paragraph, of the Schengen Protocol which requires the Council (comprising all 15 EU Member States) to determine "in conformity with the relevant provisions of the Treaties, the legal basis for each of the provisions or decisions which constitute the Schengen acquis". This does not seem to allow the Council any discretion to decide not to allocate a legal base to any part of the acquis, even though it may seem sensible not to incorporate provisions which are no longer extant. In its draft Decision, the Council proposes to exclude from incorporation certain parts of the acquis; however, the Council does not identify, in each case, the precise grounds for the exclusion.

  131.    The Home Office explained that this is because the allocation of a legal base is only necessary for acquis which remains extant and has legal effect (categories (i) and (iv) above). This does not include the 1985 Schengen Agreement since it has, in their view, been overtaken by the 1990 Convention and is redundant (p 9).

  132.    The draft Decisions do not specify which provisions of the acquis have been replaced by Community law (category (ii) above). We therefore sought clarification from the Home Office. They told us that the provisions in the Schengen Convention on responsibility for processing asylum applications are not being incorporated because they have been replaced by the Dublin Convention determining the State responsible for considering asylum applications[94] which applies to all EU Member States. There is a Community Directive on the acquisition and possession of firearms[95] and a Regulation on cabin and hold baggage[96] which explain the exclusion of Schengen Convention provisions on firearms and on hand baggage checks on internal flights. Schengen provisions on the mutual recognition of short-term visas are not incorporated as they have been replaced by Community measures introducing a uniform format visa, and Single Market legislation has overtaken the Articles in the Schengen Convention on the transport and movement of goods which are, therefore, not to be included (p 10).

  133.    The reason for some other exclusions, such as Article 28 of the Convention which reaffirms Member States' obligations under international refugee laws, is not so easy to fathom. Mr Eland said that there was another Article (Article 135) which provided that all of the Convention provisions were subject to international refugee laws, in particular the 1951 Geneva Convention on the Status of Refugees as amended by the 1967 New York Protocol. "There is still a debate over whether that should be given a legal base or whether at least there might be a declaration spelling out the commitment of the Member States to the principles in the (1951) Convention. I think that should not cause a problem" (Q 26). The Minister added that "Third Pillar conventions and agreements in this area very specifically referred to the need for Member States to uphold universal standards of human rights, to uphold standards relating to the Geneva Convention and other international obligations that we enter into". (Q 55)

  134.    There is no clear explanation of the acquis provisions which are not being incorporated because they belong to the exclusive competence of the Member States (category (iii) above). Mr Eland explained that there is a debate as to whether some Schengen provisions "are not actually dealing with co-operation between countries at all, but are a reflection of existing national provisions which should remain within national competence. It is very hard to get specific instances of that latter category". (Q 24) We too remain unclear as to which acquis provisions will fall into this category.

  135.    The need to spell out the grounds for exclusions is all the more important in the light of the third sub-paragraph of Article 2(1) of the Schengen Protocol. This follows on from the requirement that the Council allocate a legal base to the provisions and decisions constituting the Schengen acquis. It provides that "With regard to such provisions and decisions and in accordance with that determination, the Court of Justice of the European Communities shall exercise the powers conferred upon it by the relevant applicable provisions of the Treaties. In any event, the Court of Justice shall have no jurisdiction on measures or decisions relating to the maintenance of law or order and the safeguarding of internal security". The Minister is clear that this gives the Court jurisdiction to rule on whether there has been a correct allocation. Mr Eland stated that "ultimately it will be for the Court to decide in these areas, since it will be for them to judge what the actual effect of the Treaty is". (Q 52)

  136.    The Committee believes that the allocation of a legal base to the constituent parts of the acquis and the grounds for any exclusions must be transparent and fully reasoned. The Committee is not satisfied that a proper evaluation of the allocation can be made on the basis of the information contained in the two draft Decisions.

  137.    The failure to incorporate Article 28 of the Schengen Convention which reaffirms Member States' obligations under international laws for the protection of refugees is of particular concern to the Committee. We consider such protection to be an essential element in an area of freedom, security and justice. We believe that Article 135 of the Convention should be allocated to a legal base in the EC Treaty. A Declaration does not have the same force as a legally binding Treaty Article.

The Consequences of non-Incorporation

  138.    The final paragraph of the preamble to the first draft Decision includes a text in French. This concerns the provisions of the acquis which the Council has decided not to incorporate into the EU Treaties. The intention set out in the preamble is to preserve the legal validity of these non-incorporated provisions and the legal effects of any acts based on them which are still in force after the rest of the acquis has been incorporated. Some provisions of the acquis might, therefore, continue to have an independent existence outside the EU Treaties after incorporation is completed. This contrasts with the Home Office's view that acquis which has legal effect and remains applicable as being in conformity with EU law must be allocated to a legal base within the EU Treaties (p 10).

  139.    Mr Eland explained that there was a debate "whether there are some provisions in the Schengen system which ... continue to have some specific continuing legal effect even though they should remain outside the Treaty ". The 1985 Schengen Agreement was, for some Member States, an example of "a category of legal instrument which although it should not be distributed (given a legal base) and brought into the Union nevertheless still has some legal effect". While the United Kingdom considered the 1985 Agreement to be "spent and no longer of any legal relevance", for one or two Member States "it captures the spirit of Schengen and ought in some way to be retained". Others thought it should be brought into the EU Treaties and then deleted. The majority view, however, was that "everything should be incorporated unless it is redundant either because it is spent or because it has been taken over by Community law". (QQ 23, 24)

  140.    The dispute as to whether some parts of the acquis have to be incorporated illustrates the difficulty of having parallel regimes of obligations originating in the Schengen agreements but co-existing, after the entry into force of the Amsterdam Treaty, as aspects of national, Community, or international law. For the 13 Schengen States, those parts of the acquis which have been incorporated in the First or Third Pillar will apply as Community or inter-governmental obligations within the institutional and legal framework of the EU. Provisions which have not been incorporated might continue to apply either as extra-EU obligations governed by international law or as purely national law.

  141.    It is too soon to predict the impact of the new Treaty arrangements on UK policy in areas of Schengen co-operation. The UK may seek to align its policy and laws on such matters as asylum, immigration and police co-operation with developments in the rest of the EU, without formally opting in. If, however, the UK does decide to opt in, then it will be bound either by Community rules (under Title IV of the EC Treaty) or acts which are binding in international law (under Title VI of the TEU). The key issue for the Committee is that individuals and Governments are able to identify the source of their rights and obligations, whether in national, Community or international law.

  142.    The Schengen Protocol clearly expresses Member States' desire to incorporate the Schengen acquis into the EU framework. The Committee believes that the process of incorporation must ensure that individuals and Member States are able to identify the source of their rights and obligations. There is a risk both that the integrity of the acquis itself and legal certainty will be undermined if some of its provisions apply independently of the EU Treaties.

89   Article 230 (formerly Article 173) will apply to Title IV of the EC Treaty. Article 35 of the renumbered TEU limits judicial review of the legality of decisions or framework decisions based on Title VI of the TEU to actions brought by a Member State or the Commission. Back
90   Declaration 9 on Article K.6(2) of the TEU (to be renumbered Article 34(2) by the Amsterdam Treaty).  Back
91  Executive Committee decision SCH/Com-ex(93) 22 rev. adopted on 14 December 1993. Back
92  SIRENE stands for Supplementary Information Request at the National Entries. The Manual consolidates working procedures between SIRENE bureaux, the bodies through which information for the Schengen Information System and its end-users is exchanged. Back
93   Most recently in a question by Nikitas Kaklamanis to the Commission, OJ C 196 of 22 June 1998, p.16.  Back
94   This is the effect of the Bonn Protocol of 26 April 1994. Back
95   Council Directive 91/477/EEC of 18 June 1991 on control of the acquisition and possession of weapons. Back
96   Council Regulation (EEC) No 3925/91 of 19 December 1991 concerning the elimination of controls and formalities applicable to the cabin and hold baggage of persons taking an intra-Community flight and the baggage of persons making an intra-Community sea crossing. Back

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