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(ii) they have been replaced
by provisions of Community law or other acts applicable to all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do not specify which provisions of the acquis have been
replaced by Community law (category (ii) above).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been replaced by the Dublin Convention determining the State responsible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incorporated as they have been replaced by Community measures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
