1. A LEGAL BASE
IN THE
EC TREATY
Article 62(1)
Removal of internal border controls
The Council shall adopt within five years of
the entry into force of the Amsterdam Treaty "measures
with a view to ensuring, in compliance with Article 14, the absence
of any controls on persons, be they citizens of the Union or nationals
of third countries, when crossing internal borders".
Procedures: (a) for the first five years
from the entry into force of the Amsterdam Treaty: Commission
proposal or Member State initiative; EP consultation; unanimity
in Council. (b) after the first five years: Commission proposal;
possibility for Council to decide unanimously, after consulting
the EP, to apply the co-decision procedure and to enhance the
powers of the Court of Justice. But the Court will not, in any
event, have jurisdiction to rule on any measures or decisions
taken under Article 62(1) relating to maintenance of law and order
and the safeguarding of internal security.
Summary of Schengen provisions allocated to Article
62(1)
Convention Articles 2(1), (2) & (3): these
require the abolition of checks on persons crossing internal borders.
National border checks may be reinstated "for a limited
period" on grounds of public policy or national security.
Article 62(2)(a)
Checks on persons crossing external borders
The Council shall adopt within five years of
the Amsterdam Treaty's entry into force "measures on the
crossing of the external borders of the Member States which shall
establish:
(a) standards and procedures to be followed
by Member States in carrying out checks on persons at such borders"
A note in the draft Decision makes clear that,
as regards Articles 4(1)-(3), 6 and 8 of the Convention, this
provision applies only to checks on persons for the purpose of
deciding upon nationality and entry. It is without prejudice to
checks for national security or fiscal purposes. The note also
emphasises the importance of Article 64(1) of the EC Treaty (Member
States' responsibility for maintaining law and order and safeguarding
internal security) in relation to Article 5(1)(e) of the Convention.
Procedures: as for Article 62(1).
Summary of Schengen provisions allocated to Article 62(2)(a)
Convention Articles 3, 4(1)-(3), 5, 6, 8:
Article 3 establishes a general rule that external
borders must be crossed at border crossing points during the fixed
opening hours (although there will be exceptions for local border
traffic and rules for special categories of maritime traffic).
Penalties must be introduced for unauthorised crossings.
Article 4(1)-(3) provides for personal and hand
baggage checks on passengers on flights from, or boarding flights
to, third States at their first point of arrival or their last
point of departure from Schengen territory.
Article 5 sets out the conditions which must
be satisfied for "aliens" to be granted entry for short
visits (no more than three months). These cover travel documents
and visas, proof that the alien has "adequate means of
support" for the visit and return journey, is not the
subject of an "alert" (entered in the Schengen
Information System with a view to refusing entry), and that the
alien is not considered to be "a threat to public policy,
national security or the international relations of the Contracting
Parties". If any one of these conditions is not satisfied,
an alien must be refused entry, although there is the possibility
of a territorially-restricted derogation on humanitarian or national
interest grounds, or because of international obligations. Even
if all the conditions are satisfied, this does not guarantee entry,
as the power to admit is discretionary. There are also provisions
allowing entry for transit purposes.
Article 6 establishes standard principles to
be applied for checks at external borders. Aliens shall be subject
to a "thorough check" which includes verification
of travel documents and the other conditions governing entry,
residence, work and exit, as well as checks to detect or prevent
threats to national security and public policy, having regard
to the interests of all the Contracting Parties. All persons will,
as a minimum, have their travel documents checked in order to
establish their identities. Checks to detect and prevent threats
to national security and public policy must also be carried out
on all departing aliens. As a general rule, priority shall be
given to entry rather than exit checks. There is provision for
surveillance of external borders by mobile units.
Article 8 empowers the Executive Committee to
establish procedures for implementing border checks and surveillance.
Article 62(2)(b)
Short stay visas
The Council shall adopt within five years of
the Amsterdam Treaty's entry into force "measures on the
crossing of the external borders of the Member States which shall
establish:
(b) rules on visas for intended stays
of no more than three months, including:
(i) the list of third countries whose
nationals must be in possession of visas when crossing the external
borders and those whose nationals are exempt from that requirement;
(ii) the procedures and conditions for
issuing visas by Member States;
(iii) a uniform format for visas;
(iv) rules on a uniform visa".
A note to the draft Decision emphasises, in
relation to Article 9 of the Convention, the power of Member States
under Article 64(2) of the EC Treaty to adopt by qualified majority
emergency provisional measures in response to a sudden inflow
of third country nationals.
Procedures: Commission
proposal, consultation of EP and qualified majority in Council
for the measures in Article 62(2)(b)(i) and (iii), as of date
of entry into force of the Amsterdam Treaty. For the first five
years after entry into force of the Amsterdam Treaty, measures
in Article 62(2)(b)(ii) and (iv) will be adopted in the same way
as measures under Article 62(1) above. After the first five years,
the co-decision procedure will apply.
Summary of Schengen provisions allocated to Article 62(2)(b)
Convention Articles 9, 10(1) and (3), 11, 12,
13, 14, 15, 16, 17(1), (2), (3) points a-f:
Article 9 provides for a common policy on movement
of persons, including harmonising policies on visas. A Contracting
Party may, in exceptional circumstances, derogate from the common
visa arrangements for "overriding reasons of national
policy".
Article 10 establishes a uniform visa for visits
not exceeding three months which is valid throughout Schengen
territory.
Article 11 states that the uniform visa may
be either a "travel visa" valid for one or more
entries within a three month period, or a "transit visa".
Article 12 defines which authorities shall be
entitled to issue the uniform visa. It will normally be issued
by the competent authority of the country of the main destination.
Articles 13 and 14 contain rules on the travel
documents to which the uniform visa may be affixed.
Article 15 establishes the general rule that
the uniform visa may only be issued to aliens fulfilling all the
entry requirements. Under Article 16, a visa granted by a Schengen
State derogating from the general rule must be territorially restricted
to that State.
Article 17 empowers the Executive Committee
to lay down common rules for examining visa applications and other
visa-related matters, including decisions on travel documents
to which visas may be affixed, the visa-issuing authorities, issue
of visas at borders, the form, content and period of validity
of visas, fees for issuing visas, extension or refusal of visas,
and procedures for limiting their territorial validity.
Article 62(2)
Set out above under Article 62(2)(a) and (b).
The note to the draft Decision makes clear that
account must also be taken of the Protocol annexed to the EC Treaty
on external relations of the Member States with regard to the
crossing of external borders. This affirms the competence of Member
States to negotiate or conclude agreements with third countries
as long as they respect Community law and other relevant international
agreements.
Procedures: see under
Article 62(2)(a) and (b).
Summary of Schengen provisions allocated to Article
62(2)
Convention Article 136: this sets out the circumstances
in which a Contracting Party may enter into negotiations and conclude
agreements on border checks with a third State.
Article 62(3)
Freedom of movement for third country nationals
This requires the Council, within five years
of the Amsterdam Treaty's entry into force, to adopt "measures
setting out the conditions under which nationals of third countries
shall have the freedom to travel within the territory of the Member
States during a period of no more than three months".
Procedures: as for Article
62(1) above.
Summary of Schengen provisions allocated to Article
62(3)
Convention Articles 19(1), (3) and (4), 20,
21, 22, 23(1):
Article 19 entitles aliens who have legally
entered one Schengen State to move freely within Schengen territory
if they hold a valid uniform visa and satisfy the entry conditions.
Aliens not required to obtain an entry visa may, under Article
20, move freely for a maximum period of three months (extendable
by each Schengen State for its territory only), provided they
too fulfil the entry requirements.
Article 21 provides for free movement for up
to three months throughout the Schengen territory for aliens holding
a valid residence permit issued by one Schengen State and a valid
travel document. The usual provisos apply—the right is subject
to satisfying the entry conditions and to not appearing on the
"alert" list.
Article 22 requires all aliens to "declare
themselves" to the competent authorities in each of the
Schengen States whose territory they enter. Each Schengen State
has the option to require that the declaration be made upon entry
or within three working days of entry.
Article 23(1) provides that aliens who do not,
or no longer, fulfil the short visit conditions applicable in
one Schengen State "shall generally be required to leave
the territories of the Contracting Parties immediately".
A breach in one would thus appear to take effect throughout the
Schengen territory.
Article 63(3)
Immigration policy: entry, residence, long term
visas, repatriation
This provides for the Council to adopt within
five years of the Amsterdam Treaty's entry into force "measures
on immigration policy within the following areas:
(a) conditions of entry and residence,
and standards on procedures for the issue by Member States of
long term visas and residence permits, including those for the
purpose of family reunion;
(b) illegal immigration and illegal
residence, including repatriation of illegal residents."
A note to the draft Decision makes clear that,
in relation to Convention Articles 26 and 27(1), there is no requirement
to harmonise penalties.
Procedures: as for Article
62(1) above.
Summary of Schengen provisions allocated to Article
62(3)
Convention Articles 17(3)(g), 26 and 27(1):
Article 17(3)(g) empowers the Executive Committee
to draw up a common list of aliens for whom an "alert"
has been issued for the purposes of refusing entry. This means
those whose names have been entered in the Schengen Information
System.
Under Article 26, Schengen States must implement
by means of domestic laws rules requiring carriers "to
immediately assume responsibility" for aliens refused
entry to any one Schengen State. This may include returning aliens
to the third State from which they were transported or which issued
the travel document, "or to any third State to which they
are guaranteed entry". Carriers will be liable to penalties
if they fail to ensure that aliens travelling by air, sea or coach
via an international road link have the requisite travel documents
for entry into the Schengen area. National laws implementing these
common rules must be compatible with the 1951 Refugee Convention
and 1967 Protocol.
Penalties must also be imposed, under Article
27(1), on any person who, for financial gain, assists or tries
to assist aliens to circumvent the rules on entry and residence.
Articles 62(2) and 63(3)
Both set out above.
Procedures: as for Article 62(1).
Summary of Schengen provisions allocated to Articles
62(2) and 63(3)
Convention Article 18: this provides that visas
for visits for more than three months are "national visas"
issued according to the domestic law applicable in each Schengen
State. Holders of long term visas have the right to transit the
Schengen area to reach the issuing State, provided they are not
on an alert list and have adequate means for reaching the destination
Schengen State.
Articles 62(3) and 63(3)
Both set out above.
Procedures: as for Article
62(1) above.
Summary of Schengen provisions allocated to Articles
62(3) and 63(3)
Convention Articles 23(2)-(5), 24, 25:
Article 23(2)-(5) sets out the circumstances
in which aliens who no longer fulfil the short visit conditions
in one Schengen State may be "required to leave"
the territory of one or all Schengen States. It provides for
expulsion, in accordance with the laws applying in the Schengen
State concerned, on one of three grounds: "where such
aliens have not left voluntarily or where it may be assumed that
they will not so leave or where their immediate departure is required
for reasons of national security or public policy". Aliens
may be returned to their country of origin "or any other
State to which they may be permitted entry". This includes
countries with whom the Schengen States have signed readmission
agreements. Such action must not oust the application of national
rules on the right to asylum, the 1951 Refugee Convention or the
1967 Protocol.
Article 24 establishes a compensation mechanism
to ensure that the cost of effecting compulsory expulsions is
shared amongst the Schengen States.
Article 25 concerns the circumstances in which
a Schengen State may issue a residence permit to, or withdraw
it from, an alien who is the subject of an alert (entered in the
Schengen Information System with a view to being denied entry).
Article 95
Internal market: approximation of laws
This is the Article for implementing measures
to establish an internal market, defined in the Treaty (Article
14) as "an area without internal frontiers in which the
free movement of goods, persons, services and capital is ensured".
It enables the Council, by means of the co-decision procedure
(qualified majority voting) to adopt "measures for the
approximation of the provisions laid down by law, regulation or
administrative action in Member States which have as their object
the establishment and functioning of the internal market"
(paragraph 1). However, Article 95(2) specifically provides
that paragraph 1 "shall not apply to fiscal provisions,
to those relating to the free movement of persons nor to those
relating to the rights and interests of employed persons".
Procedure: co-decision (Council and EP) and qualified
majority voting.
Summary of Schengen provisions allocated to Article
95
Convention Articles 75, 76(1) and (2): these
Articles come under Chapter 6 (entitled "narcotic drugs")
of Title III which deals with police and security matters.
Article 75 provides that persons travelling
to, or within, Schengen States may carry narcotic drugs or psychotropic
substances intended for medical treatment, provided that such
use can be proved by means of an authenticated certificate.
Article 76 seeks to ensure that a laxer drugs
policy in one Schengen State does not undermine a more repressive
regime in another by requiring each Schengen State to monitor,
within its territory, narcotic drugs and psychotropic substances
which are more rigorously controlled in one or more other Schengen
States.
Article 152
Public health
This provides for Community action in the field
of public health which shall complement that taken by Member States.
The main focus will be "improving public health, preventing
human illness and diseases, and obviating sources of danger to
human health". This will include action to reduce "drugs-related
health damage, including information and prevention". Community
action to protect and improve human health is limited to "incentive
measures". Any harmonisation of Member States' laws is
excluded.
Procedure: co-decision.
In addition, the Council may adopt recommendations, based on a
Commission proposal, by a qualified majority.
Summary of Schengen provisions allocated to Article
152
Convention Article 76(3) and (4): this requires
Schengen States to notify each other of measures they have taken
to monitor the legal trade in narcotic drugs and psychotropic
substances within their territories.
