Select Committee on European Communities 31st Report



  The Schengen Protocol requires the Council to allocate each extant provision of the Schengen acquis to a legal base in the EU Treaties. The Council's proposed allocation is set out in four Annexes (A-D) to the second draft Decision (Schengen 11, Rev 2). Annexes C and D, which are blank, concern the decisions, declarations and acts of the Schengen Executive Committee and its subordinate bodies. As the Council has not yet decided which of these acts form part of the Schengen acquis to be incorporated, it has been unable to propose an appropriate allocation to legal bases in the EU Treaties. This work will continue under the Austrian Presidency.

  Annexes A and B concern the 1990 Schengen Convention and the Accession Agreements. A legal base has been allocated to most of the provisions which the Council intends to incorporate within the EU Treaties. The exceptions (indicated by the letters PM) are Convention Articles 92-119 on the Schengen Information System and Article 138 on territorial scope.

  The second draft Decision will itself provide the legal base for Article 1 of the Convention. This defines the meaning of terms commonly used in the Convention. The term "alien" denotes any person who is not a national of an EU Member State. A "third State" means any State which is not a Contracting Party. So the UK is a third State for the purposes of the Convention, but a UK national is not regarded as an alien.

  There are four possible variants for the allocation of provisions of the Schengen Convention (in Annex A) to legal bases in the EU Treaties:

    (i)  to the EC Treaty
    (ii)  to the Treaty on European Union (TEU)
    (iii)  to the EC Treaty and the TEU
    (iv)  to the Schengen Protocol (annexed to the TEC and the TEU).

  These are set out below. The legal base indicated in bold print is based on the new numbering introduced by the Amsterdam Treaty. The text of the relevant EU Treaty Article/s is in italics, followed by a summary of the Schengen provisions to which it will apply.


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 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.

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries

© Parliamentary copyright 1998