Document No. 6816/2/98,
Schengen 11, Rev 2
NOTE
from: Presidency
to: Schengen (Acquis) Working Group
Subject: Allocation of legal base for incorporation
of the Schengen acquis
Attached to this note is a revised version of
the draft Council Decision determining the legal basis for the
Schengen acquis following the Schengen acquis working group on
7 April.
EUROPEAN UNION
THE COUNCIL
Brussels, 21 April 1998
Annex
Decision of the Council, determining, in
conformity with the relevant provisions of the Treaty establishing
the European Community and the Treaty on European Union, the legal
basis for each of the provisions or decisions which constitute
the Schengen acquis
THE COUNCIL
OF THE
EUROPEAN UNION
Acting on the basis of Article 2(1), second
subparagraph, second sentence, of the Protocol annexed to the
Treaty on European Union and the Treaty establishing the European
Community, integrating the Schengen acquis into the framework
of the European Union (hereinafter referred to as the "Schengen
Protocol");
Whereas according to Article 2(1), first subparagraph,
of the Schengen Protocol, the Schengen acquis as defined in the
Annex to the Protocol shall, from the date of entry into the force
of the Treaty of Amsterdam, immediately apply to the thirteen
Member States referred to in Article 1 of the Protocol, subject
to the provisions of paragraph 2 of Article 2 of the Protocol;
[P.M. A preambular paragraph on the legal effect
of the provisions of the acquis following incorporation including
continuing obligations under the 1990 Convention]
Whereas the mandate conferred upon the Council
by Article 2(1) second subparagraph of the Schengen Protocol,
to determine, acting unanimously and in conformity with the relevant
provisions of the Treaties, the legal basis for each of the provisions
or decisions which constitute the Schengen acquis, has as one
of its objectives the identification of the legal basis for any
future proposals and initiatives to amend or build upon the Schengen
acquis, as contemplated in Article 5(1) first sub paragraph of
the Schengen Protocol, which shall be subject to the relevant
provisions of the Treaties, including those governing the form
of the act to be adopted and the procedure for its adoption;
Whereas some provisions of the 1990 Schengen
Convention require Contracting States to introduce penalties for
their effective enforcement without, however, requiring any harmonisation
of these penalties, whereas therefore, the legal basis to be determined
for these provisions should be the one determined for the rules
the breach of which has to be subject to sanctions, without prejudice
to the legal basis for any future measure aiming at the harmonisation
of penalties;
Whereas the determination of a legal basis in
conformity with the relevant provisions of the Treaties for each
of the provisions or decisions which constitute the Schengen acquis
does not affect the exercise of the responsibilities incumbent
upon the Member States according to Article 64 TEC and Article
33 TEU with regard to the maintenance of law and order and the
safeguarding of internal security;
Whereas the determination of a legal basis in
conformity with the relevant provisions of the Treaties for each
of the provisions or decisions which constitute the Schengen acquis,
or the determination that a legal basis is unnecessary for any
such provisions or decisions, does not affect the right of Member
States to carry out checks on goods linked to prohibitions or
restrictions laid down by the Member States, and which are compatible
with Community law;
Whereas the determination of a legal basis in
conformity with the Treaty establishing the European Community
for provisions of the 1990 Schengen Convention relating in particular
to the conditions for entry into the territory of the Contracting
States or for issuing visas does not affect current rules governing
the question of the recognition of the validity of travel documents;
[PM Recitals on Schengen Information System
to be drafted in light of solution reached for allocation of legal
basis to Articles 92-119]
HAS DECIDED
AS FOLLOWS
Article 1
This Decision determines the legal basis of
each of the provisions and decisions constituting the Schengen
acquis as set out in Annexes A-D, except for those provisions
and decisions for which the Council, acting on the basis of Article
2(1), second subparagraph, first sentence of the Schengen Protocol,
has determined a legal basis is not necessary.
Article 2
The legal basis of the provisions of the Convention,
signed in Schengen on 19 June 1990, between the Kingdom of Belgium,
the Federal Republic of Germany, the French Republic, the Grand
Duchy of Luxembourg and the Kingdom of the Netherlands, implementing
the Agreement on the gradual abolition of checks at their common
borders, signed in Schengen on 14 June 1985 (hereinafter referred
to as "the Schengen Convention"), and its related Final
Act are determined in accordance with Annex A.
Article 3
The legal basis of the provisions of the Accession
Agreements to the Schengen Convention with the Italian Republic
(signed in Paris on 27 November 1990), the Kingdom of Spain and
the Portuguese Republic (signed in Bonn on 25 June 1991), the
Hellenic Republic (signed in Madrid on 6 November 1992), the Republic
of Austria (signed in Brussels on 28 April 1995) and the Kingdom
of Denmark, the Republic of Finland and the Kingdom of Sweden
(signed in Luxembourg on 19 December 1996) and their related Final
Acts and declarations are determined in accordance with Annex
B.
Article 4
The legal basis of the decisions and declarations
of the Executive Committee established by the Schengen Convention
are determined in accordance with Annex C.
Article 5
The legal basis of the acts adopted for the
implementation of the Schengen Convention by the organs upon which
the Executive Committee has conferred decision-making powers are
determined in accordance with Annex D.
Article 6
This decision shall take effect immediately.
Done at....................on....................
For the Council
the President,
Annex A
Article 2
| Schengen Acquis |
EU Legal Basis |
| The Schengen Convention, its related Final Act and common declarations:
| |
| Article 1, except for the definitions of "application for asylum", "asylum seeker" and "processing applications for asylum"
| Definitions shall apply in all articles of the Schengen Convention given an EU legal basis by virtue of this Decision |
| Article 2(1) | Article 62(1) TEC |
| Article 2(2) and (3) | Article 62(1) TEC, while fully respecting the provisions of Article 64(1) TEC |
| Article 3 | Article 62(2)(a) TEC, it being understood that Article 3 does not require any harmonisation of penalties |
| Article 4 (1)-(3) | Article 62(2)(a) TEC, to the extent that these provisions deal with checks on persons for the purpose of deciding upon nationality/entry and without prejudice to checks for national security purposes and checks for fiscal purposes, where appropriate |
| Article 5, except for paragraph (1)(e) | Article 62(2)(a) TEC |
| Article 5(1)(e) | Article 62(2)(a) TEC, while fully respecting the provisions of Article 64(1) TEC |
| Article 6 | Article 62(2)(a) TEC: statement under Article4(1)-(3) applies |
| Article 7 | Article 66 TEC: statement under Article 4(1)-(3) applies |
| Article 8 | Article 62(2)(a) TEC: statement under Article4(1)-(3) applies |
| Article 9 | Article 62(2)(b) TEC, while fully respecting the provisions of Article 64(2) TEC |
| Article 10(1) and (3) | Article 62(2)(b) TEC |
| Article 11 | Article 62(2)(b) TEC |
| Article 12 | Article 62(2)(b) TEC |
| Article 13 | Article 62(2)(b) TEC |
| Article 14 | Article 62(2)(b) TEC, while recognising that the current rules on the recognition of travel documents are unaffected |
| Article 15 | Article 62(2)(b) TEC |
| Article 16 | Article 62(2)(b) TEC |
| Article 17(1), (2) and (3) points a.-f. | Article 62(2)(b) TEC |
| Article 17(3) point g | Article 63(3) TEC |
| Article 18 | Articles 62(2) and 63(3) TEC |
| Article 19(1) | Article 62(3) TEC |
| Article 19(3) and (4) | Article 62(3) TEC |
| Article 20 | Article 62(3) TEC |
| Article 21 | Article 62(3) TEC |
| Article 22 | Article 62(3) TEC |
| Article 23(1) | Article 62(3) TEC |
| Article 23(2), (3), (4) and (5) | Articles 62(3) and 63(3) TEC |
| Article 24 | Articles 62(3) and 63(3) TEC |
| Article 25 | Articles 62(3) and 63(3) TEC |
| Article 26 | Article 63(3) TEC, it being understood that Article 26 does not require any harmonisation of penalties |
| Article 27(1) | Article 63(3) TEC, it being understood that Article 27(1) does not require any harmonisation of penalties |
| Article 27(2) and (3): | Articles 30(1), 31 and 34 TEU |
| Article 39 | Articles 34 and 30 TEU |
| Article 40 | Articles 34 and 32 TEU |
| Article 41 | Articles 34 and 32 TEU |
| Article 42 | Articles 34 and 32 TEU |
| Article 43 | Articles 34 and 32 TEU |
| Article 44 | Articles 34 and 30(1) TEU |
| Article 45 | Articles 34 and 30(1) TEU |
| Article 46 | Articles 34 and 30(1) TEU |
| Article 47 | Articles 34 and 30(1) TEU |
| Article 48 | Articles 34 and 31(a) TEU |
| Article 49 | Articles 34 and 31(a) TEU |
| Article 50 | Articles 34 and 31(a) TEU |
| Article 51 | Articles 34 and 31(a) TEU |
| Article 52 | Articles 34 and 31(a) TEU |
| Article 53 | Articles 34 and 31(a) TEU |
| Article 54 | Articles 34 and 31 TEU |
| Article 55 | Articles 34 and 31 TEU |
| Article 56 | Articles 34 and 31 TEU |
| Article 57 | Articles 34 and 31 TEU |
| Article 58 | Articles 34 and 31 TEU |
| Article 59 | Articles 34 and 31(b) TEU |
| Article 61 | Articles 34 and 31(b) TEU |
| Article 62 | Articles 34 and 31(b) TEU |
| Article 63 | Articles 34 and 31(b) TEU |
| Article 64 | Articles 34 and 31(b) TEU |
| Article 65 | Articles 34 and 31(b) TEU |
| Article 66 | Articles 34 and 31(b) TEU |
| Article 67 | Articles 34 and 31(a) TEU |
| Article 68 | Articles 34 and 31(a) TEU |
| Article 69 | Articles 34 and 31(a) TEU |
| Article 71 | Articles 34 and 30 and 31 TEU |
| Article 72 | Articles 34 and 31 TEU |
| Article 73 | Articles 34 and 30(1) and 31 TEU |
| Article 75 | Article 95 TEC |
| Article 76(1), (2) | Article 95 TEC |
| Article 76(3), (4) | Article 152 TEC |
| Article 92 | P.M. |
| Article 93 | P.M. |
| Article 94 | P.M. |
| Article 95 | P.M. |
| Article 96 | P.M. |
| Article 97 | P.M. |
| Article 98 | P.M. |
| Article 99 | P.M. |
| Article 100 | P.M. |
| Article 101(1) | P.M. |
| Article 101(2) | P.M. |
| Article 101(3) and (4) | P.M. |
| Article 102(1), (2) and (3) | P.M. |
| Article 102(4) | P.M. |
| Article 102(5) | P.M. |
| Article 103 | P.M. |
| Article 104 | P.M. |
| Article 105 | P.M. |
| Article 106 | P.M. |
| Article 107 | P.M. |
| Article 108 | P.M. |
| Article 109 | P.M. |
| Article 110 | P.M. |
| Article 111 | P.M. |
| Article 112(1) except the last sentence | P.M. |
| Article 112(1) last sentence | P.M. |
| Article 112(2), (3) and (4) | P.M. |
| Article 113(1) | P.M. |
| Article 113(2) | P.M. |
| Article 114 | P.M. |
| Article 115 | P.M. |
| Article 116 | P.M. |
| Article 117 | P.M. |
| Article 118 | P.M. |
| Article 119 | P.M. |
| Article 126 | Article 95 TEC and Articles 34 and 30(1) TEU |
| Article 127 | Article 95 TEC and Articles 34 and 30(1) TEU |
| Article 128 | Article 95 TEC and Articles 34 and 30(1) TEU |
| Article 129 | Articles 34 and 30(1) TEU |
| Article 130 | Articles 34 and 30(1) TEU |
| Article 136 | Article 62(2) TEC (taking into account the Protocol annexed to the TEC under the Treaty of Amsterdam on External Relations of the Member States with regard to Crossing of External Borders) |
| Article 138 | P.M. |
| "Final Act" declaration 1 | Article 2(2) Schengen Protocol (to be read also in conjuction with Article 6 of the Schengen Procotol. |
| Final Act: declaration 3 | Articles 30, 31 and 34 TEU |
Annex B
Article 3
| Schengen Acquis | EU Legal Basis |
| The Agreement, signed in Paris on 27 November 1990, on Accession of the Italian Republic to the Convention, signed at Schengen on 19 June 1990, implementing the Schengen Agreement of 14 June 1985 between the Governments of the States Members of the Benelux Economic Union, the Federal Republic of Germany and the French Republic, its Final Act and related declarations: | |
| Article 2 | Articles 34 and 32 TEU |
| Article 3 | Articles 34 and 32 TEU |
| Article 4 | Articles 34 and 31(b) TEU |
| Part II, declaration 1 | Article 2(2) Schengen Protocol (to be read also in conjunction with Article 8 of the Schengen Protocol) |
| Common declaration to Articles 2 and 3 of the Accession Agreement | Article 32 TEU |
| The Agreement, signed in Bonn on 25 June 1991, on Accession of the Kingdom of Spain to the Convention, signed at Schengen on 19 June 1990, implementing the Schengen Agreement of 14 June 1985 between the Governments of the States Members of the Benelux Economic Union, the Federal Republic of Germany and the French Republic, to which the Italian Republic has acceded under the Agreement signed in Paris on 27 November 1990, its Final Act and related declarations: | |
| Article 2 | Articles 34 and 32 TEU |
| Article 3 | Articles 34 and 32 TEU |
| Article 4 | Articles 34 and 31(b) TEU |
| Part II, declaration 1 | Article 2(2) Schengen Protocol (to be read also in conjunction with Article 8 of the Schengen Protocol) |
| Part III, declaration 1 | PM |
| Part III, declaration 2 | Articles 34 and 31(b) TEU |
| The Agreement, signed in Bonn on 25 June 1991, on Accession of the Portuguese Republic to the Convention, signed at Schengen on 19 June 1990, implementing the Schengen Agreement of 14 June 1985 between the Governments of the States Members of the Benelux Economic Union, the Federal Republic of Germany and the French Republic, to which the Italian Republic has acceded under the Agreement signed in Paris on 27 November 1990, its Final Act and related declarations: | |
| Article 2 | Articles 34 and 32 TEU |
| Article 3 | Articles 34 and 32 TEU |
| Article 4 | Articles 34 and 31(b) TEU |
| Article 5 | Articles 34 and 31(b) TEU |
| Article 6 | Articles 34 and 31(a) TEU |
| Part II, declaration 1 | Article 2(2) Schengen Protocol (to be read also in conjunction with Article 8 of the Schengen Protocol) |
| Part III, declaration 1 | Article 62(3) TEC |
| The Agreement, signed in Madrid on 6 November 1992, on Accession of the Hellenic Republic to the Convention, signed at Schengen on 19 June 1990, implementing the Schengen Agreement of 14 June 1985 between the Governments of the States Members of the Benelux Economic Union, the Federal Republic of Germany and the French Republic, to which have acceded the Italian Republic under the Agreement signed in Paris on 27 November 1990, and the Kingdom of Spain and the Portuguese Republic under the Agreements signed in Bonn on 25 June 1991, its Final Act and related declarations: | |
| Article 2 | Articles 34 and 32 TEU |
| Article 3 | Articles 34 and 31(b) TEU |
| Article 4 | Articles 34 and 31(b) TEU |
| Article 5 | Articles 34 and 31(a) TEU |
| Part II, declaration 1 | Article 2(2) Schengen Protocol (to be read also in conjunction with Article 8 of the Schengen Protocol) |
| Part II, declaration 5 | PM |
| Part III, declaration 2 | Article 31(a) TEU |
| The Agreement, signed in Brussels on 28 April 1995, on Accession of the Republic of Austria to the Convention, signed at Schengen on 19 June 1990, implementing the Schengen Agreement of 14 June 1985 between the Governments of the States Members of the Benelux Economic Union, the Federal Republic of Germany and the French Republic, to which have acceded the Italian Republic, the Kingdom of Spain and the Portuguese Republic, and the Hellenic Republic under the Agreements signed on 27 November 1990, 25 June 1991 and 6 November 1992 respectively and its Final Act: | |
| Article 2 | Articles 34 and 32 TEU |
| Article 3 | Articles 34 and 32 TEU |
| Article 4 | Articles 34 and 31(b) TEU |
| Part II, declaration 1 | Article 2(2) Schengen Protocol (to be read also in conjunction with Article 8 of the Schengen Protocol) |
| The Agreement, signed in Luxembourg on 19 December 1996, on Accession of the Kingdom of Denmark to the Convention implementing the Schengen Agreement of 14 June 1985 on the gradual abolition of controls at their common borders, signed at Schengen on 19 June 1990, and its Final Act: and related declaration: | |
| Article 2 | Articles 34 and 32 TEU |
| Article 3 | Articles 34 and 32 TEU |
| Article 4 | Articles 34 and 31(b) TEU |
| Article 5 | PM |
| Article 6 | [Article 2(1) Schengen Protocol] |
| Part II, declaration 1 | Article 2(2) Schengen Protocol (to be read also in conjunction with Article 8 of the Schengen Protocol) |
| Part II, declaration 3 | Articles 34 and 31(b) TEU |
| The Agreement, signed in Luxembourg on 19 December 1996, on Accession of the Republic of Finland to the Convention implementing the Schengen Agreement of 14 June 1985 on the gradual abolition of controls at their common borders, signed at Schengen on 19 June 1990, and its Final Act: and related declaration: | |
| Article 2 | Articles 34 and 32 TEU |
| Article 3 | Articles 34 and 32 TEU |
| Article 4 | Articles 34 and 31(b) TEU |
| Article 5 | [Article 2(1) Schengen Protocol] |
| Part II, declaration 1 | Article 2(2) Schengen Protocol (to be read also in conjunction with Article 8 of the Schengen Protocol) |
| Part II, declaration 3 | Articles 34 and 31(b) TEU |
| Part III: declaration of the government of the Republic of Finland on the Aaland islands28 | PM |
| The Agreement, signed in Luxembourg on 19 December 1996, on Accession of the Kingdom of Sweden to the Convention implementing the Schengen Agreement of 14 June 1985 on the gradual abolition of controls at their common borders, signed at Schengen on 19 June 1990, and its Final Act and related declaration: | |
| Article 2 | Articles 34 and 32 TEU |
| Article 3 | Articles 34 and 32 TEU |
| Article 4 | Articles 34 and 31(b) TEU |
| Article 5 | [Article 2(1) Schengen Protocol] |
| Part II, declaration 1 | Article 2(2) Schengen Protocol (to be read also in conjunction with Article 8 of the Schengen Protocol) |
| Part II, declaration 3 | Articles 34 and 31(b) TEU |
Annex C
Article 4
P.M.
Decisions and declarations adopted by the Executive Committee
established by the Schengen Convention:
Annex D
Article 5
P.M.
Acts adopted for the implementation of the Schengen Convention
by the organs upon which the Executive Committee has conferred
decision-making powers:
|
