Select Committee on European Communities 31st Report



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 3Article 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 6Article 62(2)(a) TEC: statement under Article4(1)-(3) applies
Article 7Article 66 TEC: statement under Article 4(1)-(3) applies
Article 8Article 62(2)(a) TEC: statement under Article4(1)-(3) applies
Article 9Article 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 11Article 62(2)(b) TEC
Article 12Article 62(2)(b) TEC
Article 13Article 62(2)(b) TEC
Article 14Article 62(2)(b) TEC, while recognising that the current rules on the recognition of travel documents are unaffected
Article 15Article 62(2)(b) TEC
Article 16Article 62(2)(b) TEC
Article 17(1), (2) and (3) points a.-f.Article 62(2)(b) TEC
Article 17(3) point gArticle 63(3) TEC
Article 18Articles 62(2) and 63(3) TEC
Article 19(1)Article 62(3) TEC
Article 19(3) and (4)Article 62(3) TEC
Article 20Article 62(3) TEC
Article 21Article 62(3) TEC
Article 22Article 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 24Articles 62(3) and 63(3) TEC
Article 25Articles 62(3) and 63(3) TEC
Article 26Article 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 39Articles 34 and 30 TEU
Article 40Articles 34 and 32 TEU
Article 41Articles 34 and 32 TEU
Article 42Articles 34 and 32 TEU
Article 43Articles 34 and 32 TEU
Article 44Articles 34 and 30(1) TEU
Article 45Articles 34 and 30(1) TEU
Article 46Articles 34 and 30(1) TEU
Article 47Articles 34 and 30(1) TEU
Article 48Articles 34 and 31(a) TEU
Article 49Articles 34 and 31(a) TEU
Article 50Articles 34 and 31(a) TEU
Article 51Articles 34 and 31(a) TEU
Article 52Articles 34 and 31(a) TEU
Article 53Articles 34 and 31(a) TEU
Article 54Articles 34 and 31 TEU
Article 55Articles 34 and 31 TEU
Article 56Articles 34 and 31 TEU
Article 57Articles 34 and 31 TEU
Article 58Articles 34 and 31 TEU
Article 59Articles 34 and 31(b) TEU
Article 61Articles 34 and 31(b) TEU
Article 62Articles 34 and 31(b) TEU
Article 63Articles 34 and 31(b) TEU
Article 64Articles 34 and 31(b) TEU
Article 65Articles 34 and 31(b) TEU
Article 66Articles 34 and 31(b) TEU
Article 67Articles 34 and 31(a) TEU
Article 68Articles 34 and 31(a) TEU
Article 69Articles 34 and 31(a) TEU
Article 71Articles 34 and 30 and 31 TEU
Article 72Articles 34 and 31 TEU
Article 73Articles 34 and 30(1) and 31 TEU
Article 75Article 95 TEC
Article 76(1), (2)Article 95 TEC
Article 76(3), (4)Article 152 TEC
Article 92P.M.
Article 93P.M.
Article 94P.M.
Article 95P.M.
Article 96P.M.
Article 97P.M.
Article 98P.M.
Article 99P.M.
Article 100P.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 103P.M.
Article 104P.M.
Article 105P.M.
Article 106P.M.
Article 107P.M.
Article 108P.M.
Article 109P.M.
Article 110P.M.
Article 111P.M.
Article 112(1) except the last sentenceP.M.
Article 112(1) last sentenceP.M.
Article 112(2), (3) and (4)P.M.
Article 113(1)P.M.
Article 113(2)P.M.
Article 114P.M.
Article 115P.M.
Article 116P.M.
Article 117P.M.
Article 118P.M.
Article 119P.M.
Article 126Article 95 TEC and Articles 34 and 30(1) TEU
Article 127Article 95 TEC and Articles 34 and 30(1) TEU
Article 128Article 95 TEC and Articles 34 and 30(1) TEU
Article 129Articles 34 and 30(1) TEU
Article 130Articles 34 and 30(1) TEU
Article 136Article 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 138P.M.
"Final Act" declaration 1Article 2(2) Schengen Protocol (to be read also in conjuction with Article 6 of the Schengen Procotol.
Final Act: declaration 3Articles 30, 31 and 34 TEU


Annex B

Article 3

Schengen AcquisEU 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 2Articles 34 and 32 TEU
Article 3Articles 34 and 32 TEU
Article 4Articles 34 and 31(b) TEU
Part II, declaration 1Article 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 AgreementArticle 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 2Articles 34 and 32 TEU
Article 3Articles 34 and 32 TEU
Article 4Articles 34 and 31(b) TEU
Part II, declaration 1Article 2(2) Schengen Protocol (to be read also in conjunction with Article 8 of the Schengen Protocol)
Part III, declaration 1PM
Part III, declaration 2Articles 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 2Articles 34 and 32 TEU
Article 3Articles 34 and 32 TEU
Article 4Articles 34 and 31(b) TEU
Article 5Articles 34 and 31(b) TEU
Article 6Articles 34 and 31(a) TEU
Part II, declaration 1Article 2(2) Schengen Protocol (to be read also in conjunction with Article 8 of the Schengen Protocol)
Part III, declaration 1Article 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 2Articles 34 and 32 TEU
Article 3Articles 34 and 31(b) TEU
Article 4Articles 34 and 31(b) TEU
Article 5Articles 34 and 31(a) TEU
Part II, declaration 1Article 2(2) Schengen Protocol (to be read also in conjunction with Article 8 of the Schengen Protocol)
Part II, declaration 5PM
Part III, declaration 2Article 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 2Articles 34 and 32 TEU
Article 3Articles 34 and 32 TEU
Article 4Articles 34 and 31(b) TEU
Part II, declaration 1Article 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 2Articles 34 and 32 TEU
Article 3Articles 34 and 32 TEU
Article 4Articles 34 and 31(b) TEU
Article 5PM
Article 6[Article 2(1) Schengen Protocol]
Part II, declaration 1Article 2(2) Schengen Protocol (to be read also in conjunction with Article 8 of the Schengen Protocol)
Part II, declaration 3Articles 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 2Articles 34 and 32 TEU
Article 3Articles 34 and 32 TEU
Article 4Articles 34 and 31(b) TEU
Article 5[Article 2(1) Schengen Protocol]
Part II, declaration 1Article 2(2) Schengen Protocol (to be read also in conjunction with Article 8 of the Schengen Protocol)
Part II, declaration 3Articles 34 and 31(b) TEU
Part III: declaration of the government of the Republic of Finland on the Aaland islands28PM
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 2Articles 34 and 32 TEU
Article 3Articles 34 and 32 TEU
Article 4Articles 34 and 31(b) TEU
Article 5[Article 2(1) Schengen Protocol]
Part II, declaration 1Article 2(2) Schengen Protocol (to be read also in conjunction with Article 8 of the Schengen Protocol)
Part II, declaration 3Articles 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:


 
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