Select Committee on European Communities 31st Report


Explanatory Note on two draft Council Decisions concerning the incorporation of Schengen into EU/EC structures, as provided for in the Treaty of Amsterdam submitted by the Home Office in May 1998.

  This Explanatory Note and attached documents are being made available to Parliament in pursuance of the Government's commitment to keeping Parliament informed of the work being carried out in preparation for incorporation of the Schengen acquis into the European Union and European Community Treaty framework.


  2.  The attached documents are two draft Decisions of the Council which will, respectively, identify the whole Schengen acquis and redundant provisions (Schengen 14, Rev 1), and allocate a Treaty base to the extant Acquis (Schengen 11, Rev 2). The main content of both the draft Decisions is located in annexes. So far the Schengen Convention and Accession Agreements and Protocols have been considered and are covered in the drafts. Current work is examining the decisions and other acts of the Schengen Executive Committee, and the decisions and declarations of the organs upon which the Executive Committee has conferred decision-making power. 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. Areas which have been highlighted in discussions in the Schengen Working Group as giving rise to difficulties have, in addition to their allocation of a legal base, been clarified in recitals at the beginning of the Decision and in supplementary, explanatory, text in the annexes. Although these texts are revised versions, they are the first authoritative texts which are available and are therefore being made available to Parliament. In accordance with our usual practice, reservations by individual Member States have been deleted.


  3.  The Home Secretary has responsibility for the operation of the United Kingdom's immigration controls and overall responsibility for this document. The Foreign Secretary has overall responsibility for the ratification and implementation of the Amsterdam Treaty.


(i)  Legal and procedural basis

  4.  Article 2(1) first paragraph of the Schengen Protocol, states that from the date of entry into force of the Treaty of Amsterdam, the Schengen aquis shall immediately apply to the thirteen Member States referred to in Article 1 of the Schengen Protocol. Article 2(1) second paragraph, first sentence, states that the Council, acting by the unanimity of its members referred to in Article 1, shall take any measure necessary for the implementation of this paragraph.

  5.  Article 2(1) second paragraph, second sentence of the Schengen Protocol states that the Council, acting unanimously, shall 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.

(ii)  European Parliament procedure

  6.  There is no provision in the Schengen Protocol for the European Parliament either to be kept informed, or to take part in the desision-making of the Council. However, an informal undertaking has been given by the Minister of State at the FCO to keep the European Parliament informed.

(iii)  Voting procedure

  7.  For the first draft Decision (Schengen 14, Rev 1) voting will be in accordance with Article 2(1) second paragraph first sentence—by the Council acting by the unanimity of the EU Member States with the exception of the UK and Ireland.

  8.  For the second draft Decision (Schengen 11, Rev 2) voting is by the Council acting unanimously at 15 in accordance with Article 2(1) second paragraph, second sentence of the Schengen Protocol.


  9.  The draft Decisions would not require any changes to United Kingdom legislation. Any change would be dependent on any decision concerning UK participation in Schengen. (Article 4 of the Schengen Protocol allows the UK to seek to opt into existing Schengen provisions, subject to the unanimity of the other Member States.)


  10.  There are no direct consequences for the United Kingdom arising from the two draft Decisions since by virtue of the Treaty of Amsterdam the United Kingdom is not subject to the automatic application of the Schengen acquis.

  11.  However, the Treaty of Amsterdam also provides for the United Kingdom to be able to take part in Schengen cooperation if it wishes. It is therefore important for the UK to ensure that the Schengen acquis is properly identified and that the allocation of a legal base is correct. The allocation as between the First and Third Pillars will be of particular importance; even if the UK does not ultimately participate in a provision, an inappropriate allocation to the First Pillar may risk the extension of Community competence into subjects properly covered by inter-governmental cooperation in the Third Pillar or solely within the competence of individual Member States.


  12.  The draft Decisions are a technical, legal exercise, paving the way for the incorporation of Schengen. The draft Decisions are not concerned with the actual operation or running of Schengen which will remain an intergovernmental matter for the Schengen states until ratification of the Treaty of Amsterdam. Any immediate financial implications for the United Kingdom would be the result of central administrative costs for work undertaken by the structures of the European Union. Other financial implications would depend upon the nature and extent of UK participation (if any) in Schengen.


  13.  The Schengen acquis will be incorporated at the time of the ratification of the Treaty of Amsterdam, if necessary by the fail-safe mechanism.

Jack Straw
Secretary of State for the Home Department

21 May 1998

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