2. A LEGAL
BASE IN
THE TREATY
ON EUROPEAN
UNION
(i) The relevant Treaty provisions
There are three substantive Treaty bases (Articles
30-32) and one procedural one (Article 34).
Article 30(1) provides for common action
in the field of police cooperation, including:
(a) operational cooperation between the competent
authorities, including the police, customs and other specialised
law enforcement services of the Member States in relation to the
prevention, detection and investigation of criminal offences;
(b) the collection, storage, processing,
analysis and exchange of relevant information, including information
held by law enforcement services on reports on suspicious financial
transactions, in particular through Europol, subject to appropriate
provisions on the protection of personal data;
(c) cooperation and joint initiatives in
training, the exchange of liaison officers, secondments, the use
of equipment, and forensic research;
(d) the common evaluation of particular investigative
techniques in relation to the detection of serious forms of organised
crime.
Article 30(2) requires the Council to
promote cooperation through Europol and, within five years of
the Amsterdam Treaty's entry into force, to:
(a) enable Europol to facilitate and support
the preparation, and to encourage the coordination and carrying
out, of specific investigative actions by the competent authorities
of the Member States, including operational actions by joint teams
comprising representatives of Eurpol in a support capacity;
(b) adopt measures allowing Europol to ask
the competent authorities of the Member States to conduct and
coordinate their investigations in specific cases and to develop
specific expertise which may be put at the disposal of Member
States to assist them in investigating cases of organised crime;
(c) promote liaison arrangements between
prosecuting/investigating officials specialising in the fight
against organised crime in close cooperation with Europol;
(d) establish a research, documentation and
statistical network on cross-border crime.
Article 31 provides for common action
on judicial cooperation in criminal matters, including:
(a) facilitating and accelerating cooperation
between competent ministries and judicial or equivalent authorities
of the Member States in relation to proceedings and the enforcement
of decisions;
(b) facilitating extradition between Member
States;
(c) ensuring compatibility in rules applicable
in the Member States, as may be necessary to improve such cooperation;
(d) preventing conflicts of jurisdiction
between Member States;
(e) progressively adopting measures establishing
minimum rules relating to the constituent elements of criminal
acts and to penalties in the fields of organised crime, terrorism
and illicit drug trafficking.
Article 32 requires the Council to "lay
down the conditions and limitations under which the competent
authorities referred to in Articles 30 and 31 may operate in the
territory of another Member State in liaison and in agreement
with the authorities of that State".
Article 34(1) requires Member States
to "inform and consult one another within the Council with
a view to coordinating their action. To that end, they shall establish
collaboration between the relevant departments of their administrations".
Article 34(2) sets out the instruments
and procedures enabling the Council to take measures in the field
of police and judicial cooperation in criminal matters. The instruments
available to the Council are:
(a) common posititons—these define
the Union's approach to a particular issue;
(b) framework decisions—these are used
to approximate Member States' laws and regulations. Like EC Directives,
they are binding on Member States as to the result to be achieved
but leave to national implementing authorities the choice of form
and methods. Unlike Directives, they are not capable of having
direct effect.
(c) decisions—these are used for purposes
other than approximating national laws, are binding on Member
States, but do not have direct effect.
(d) conventions—these are established
by the Council but must be approved in accordance with the constitutional
requirements of each Member State.
As regards procedures, any Member State or the
Commission may bring forward an initiative, but it can only be
adopted with the unanimous consent of the Council. There are exceptions.
Measures implementing decisions shall be adopted by a qualified
majority comprising at least 10 Member States. In the case of
conventions, implementing measures shall be adopted by a majority
comprising two-thirds of the Contracting Parties. Once at least
half of the Member States have completed their domestic procedures
for approving conventions, then they will enter into force for
those Member States.
(ii) Allocation of the Schengen acquis to
TEU provisions
Articles 30 and 34 of the TEU
Summary of Schengen provisions allocated to
Articles 30 and 34
Convention Article 39: this is in the first
Chapter of Title III on police and security, and deals with police
cooperation.
Article 39 provides for mutual assistance
between police authorities in the prevention and detection of
criminal offences. Where such assistance is requested from a police
authority in another Schengen State, it must not involve "the
application of measures of constraint". If a Schengen State
has provided written information in response to a request for
assistance, it must give its consent to that information being
used as evidence of the criminal offence.
Requests for assistance should normally be channelled
through the central bodies responsible in each Schengen State
for international police cooperation. Special arrangements may
be established for border regions, and neighbouring Schengen States
may also enter into more detailed bilateral agreements.
Articles 30(1) and 34 of the TEU
Summary of Schengen provisions allocated to Articles
30(1) and 34
Convention Articles 44, 45, 46, 47, 129, 130:
Articles 44-47 come within Chapter 1, entitled "police cooperation",
of Title III on police and security cooperation. Articles 129-130
are in Title VI on protection of personal data.
Article 44 sets out the technical means
for ensuring "the rapid transmission of information for the
purposes of cross-border surveillance and pursuit". These
include the installation of telephone, radio and telex lines and
other direct links to facilitate police and customs cooperation.
Further measures are also envisaged.
Under Article 45, Schengen States must
introduce rules requiring persons running any commercially rented
establishment or offering accommodation to ensure that aliens
(meaning, in this context, any foreign national from another Schengen
or EU State or a third State) complete and sign declaration forms
and produce a valid identity document. The forms will be kept
for the competent national authorities, and may be sent to them
if necessary "to prevent threats, for the purposes of initiating
criminal proceedings or to ascertain what has happened to persons
who have disappeared or who have been the victim of an accident".
Article 46 provides for the exchange
between Schengen States of "any information which may be
of interest . . . in helping prevent future crime and offences
against or threats to public policy and security", even in
the absence of a specific request for assistance. This will usually
be via a central designated body, but in urgent cases, the police
authorities concerned may exchange information directly.
Article 47 allows Schengen States to
conclude bilateral agreements on the secondment of liaison officers
to each others' police authorities. It sets out the type of assistance
they will provide, their tasks and responsibilities. Liaison officers
seconded to third States may represent the interests of one or
more Schengen States and share information with them.
Article 129 sets out the rules applying
to the transmission of personal data under the provisions on police
cooperation. Schengen States must ensure a level of protection
in line with the 1987 Council of Europe Recommendation R(87) 15
regulating the use of personal data in the police sector. There
are some additional restrictions on the use of personal data supplied
voluntarily (without a formal request) by one Schengen State to
another under Article 46.
It would seem, under Article 130, that
in the case of liaison officers seconded to another Schengen State,
the data protection rules would apply only in respect of personal
data transmitted back to the State which seconded them.
Articles 30, 31 and 34 of the TEU
Summary of Schengen provisions allocated to Articles
30, 31 and 34
Convention Article 71, declaration 3 of the
Final Act: Article 71 is in Chapter 6, entitled "narcotic
drugs" of Title III on police cooperation.
Article 71 seeks to ensure that all Schengen
States adopt administrative and penal measures to prevent and
punish illicit trafficking, illegal export, sale, supply and handling
of narcotic drugs and psychotropic substances, including cannabis.
They must also increase checks on persons, goods and means of
transport at their external borders to prevent illegal imports,
and carry out surveillance on places known to be used for drug
trafficking.
Declaration 3 of this Final Act states
that if the national drugs policy of a Schengen State derogates
from the sanctions-based approach set out in Article 71, the other
Schengen States shall adopt administrative measures and penal
sanctions to prevent and penalise illicit imports or exports to
or from their territories.
Articles 30(1), 31 and 34 of the TEU
Summary of Schengen provisions allocated to Articles
30(1), 31 and 34
Convention Articles 27(2) and (3), 73: Article
27 is in Chapter 6 of Title II on the abolition of checks at internal
borders and movement of persons. Article 73 is in Chapter 6 of
Title III on police cooperation and concerns narcotic drugs.
Article 27(2) and (3) follow on from
the requirement in Article 27(1) to impose penalties on any person
who, for profit, assists aliens to enter or reside in a Schengen
State contrary to the immigration and residence rules in force
there. The aim is to make it easier to secure prosecution of such
persons if they are in another Schengen State.
Article 73 requires Schengen States to
adopt measures permitting controlled deliveries of drugs, with
the proviso that prior authorisation will be required for each
operation and that each Schengen State will be responsible for
and control any delivery within its territory.
Articles 31 and 34 of the TEU
Summary of the Schengen provisions allocated to
Articles 31 and 34
Convention Articles 54, 55, 56, 57, 58, 72:
Articles 54-58 are in Chapter 3 of Title III on police and security,
and concern the application of the non bis in idem principle.
Article 72 is in Chapter 6 of the same Title and concerns narcotic
drugs.
Article 54 sets out the basic principle
that a person on whom final judgment has been passed and who has
been sentenced in one Schengen State may not be prosecuted in
another for the same offence. Article 55 provides a number
of exceptions to this rule, but these can only be taken up by
means of a declaration at the time of ratifying, accepting or
approving the Convention. Declarations in relation to any one
of the exceptions may be withdrawn at any time.
If, under one of the exceptions, further proceedings
are brought in a Schengen State other than the one in which final
judgment has been given, and these result in a custodial sentence,
Article 56 provides that its length must be reduced to
take into account time already served.
Article 57 enables the competent authorities
in Schengen States to request and exchange information regarding
individuals accused of an offence to ascertain whether they have
been tried elsewhere. Article 58 makes clear that the application
of the non bis in idem principle in the Schengen context
does not affect broader national provisions on its effect in relation
to legal decisions taken abroad.
Article 72 requires Schengen States to
enact domestic legislation permitting the seizure and confiscation
of assets deriving from illicit drug trafficking.
Articles 31(a) and 34 of the TEU
Summary of Schengen provisions allocated to Articles
31(a) and 34
Convention Articles 48, 49, 50, 51, 52, 53,
67, 68, 69: Articles 48-53 are in Chapter 2 of Title III on police
and security, and concern mutual assistance in criminal matters.
Articles 67-69 are in Chapter 5 of the same Title and concern
transfer of the enforcement of criminal judgments.
The Convention Articles on mutual assistance
in criminal matters are intended to supplement various international
instruments covering the same area (Article 48).
Article 49 sets out the circumstances
in which mutual assistance shall be given.
Article 50 provides for mutual assistance
in fiscal matters, such as evasion of excise duties, VAT or customs
duties.
Under Article 51, letters rogatory for
search or seizure must be treated as admissible, except in the
two circumstances listed.
Article 52 provides for procedural documents
to be sent directly by post to persons who are in the territory
of another Schengen State.
Article 53 covers the channels which
may be used for requesting assistance.
Articles 67-69 supplement the provisions
of the 1983 Council of Europe Convention on the transfer of sentenced
persons for those Schengen States Parties to it. One Schengen
State may, in certain circumstances, "take over" the
enforcement of a sentence or detention order given in another.
Such a transfer does not require the consent of the person on
whom the sentence or detention order has been imposed.
Articles 31(b) and 34 of the TEU
Summary of Schengen provisions allocated to Articles
31(b) and 34
Convention Articles 59, 61, 62, 63, 64, 65,
66: all these Articles are in Chapter 4 of Title III on police
and security, and concern extradition. They are intended to supplement
the 1957 European Convention on Extradition (Article 59). The
provisions cover the type of offences in respect of which extradition
may be sought, the appropriate channels for communicating requests,
and the possibility of dispensing with formal extradition proceedings.
Articles 32 and 34 of the TEU
Summary of the Schengen provisions allocated to
Articles 32 and 34
Convention Articles 40, 41, 42 and 43: these
are in Chapter I of Title III on police and security, and concern
police cooperation.
Article 40 provides for the possibility
of cross-border surveillance of persons suspected of involvement
in an extraditable offence. Police officers wishing to continue
their surveillance beyond the border must, as a general rule,
obtain prior authorisation. This may be subject to conditions.
If, however, "for particularly urgent reasons" police
officers have been unable to obtain prior authorisation and the
surveillance concerns a person suspected of having committed a
serious offence (listed in paragraph 7 of Article 40), they may
continue beyond the border. Surveillance must cease if authorisation
has not been obtained within five hours of crossing the border.
Article 40(3) lists six general conditions
with which officers conducting a cross-border surveillance must
comply. These assume a familiarity not only with the Convention
rules but also with the laws of the country in which they are
operating. Officers may carry their service weapons, but must
not use them except "in cases of legitimate self-defence".
They have no right of entry into private homes, and no right to
challenge or arrest the person under surveillance.
Article 41 establishes a right, in certain
circumstances of "hot pursuit" from one Schengen State
to another. This right arises only in relation to an individual
caught in the act of committing, or involved in, one of the offences
listed in paragraph 4, or who is being pursued after escaping
from temporary custody or while serving a custodial sentence.
Prior authorisation is not required, either if notification is
impossible because of the "particular urgency" of the
situation, or police in the neighbouring State would be unable
to reach the scene in time to take over the pursuit. The pursuing
officers must notify the authorities of the State whose territory
they are about to enter, "at the latest when they cross the
border". They may be required to stop their pursuit. Each
Schengen State must state in a declaration made at the time of
signing (or acceding to) the Convention the procedures for carrying
out a pursuit in its territory. It may impose geographical or
time limits from the crossing of the border. It may also stipulate,
either that the pursuing officers have no right to apprehend the
person they are chasing, or that they may detain the person concerned
if the local police are unable to intervene quickly enough. Only
the local police have the right to establish the identity of the
pursued person and to make an arrest. Each Schengen State must
also include in the declaration the type of offences in respect
of which it will allow hot pursuit (opting for the list in paragraph
4(a) or (b) of Article 41). Pursuing officers must comply with
a number of general conditions common to the Schengen territory
covering such matters as use of handcuffs and service weapons,
identification, security searches, in addition to the laws of
the Schengen State in whose territory they are operating.
Article 42 provides that police officers
engaged in cross-border operations (surveillance or pursuit) will
be subject to the same laws as local police in respect of offences
commited by or against them.
Article 43 apportions liability for damage
caused by officers operating across the border.
3. LEGAL BASES
IN THE
EC TREATY AND
THE TEU
Article 95 EC Treaty and Articles 30(1) and
34 TEU
See under provisions of the EC Treaty and TEU.
Procedures: co-decision
and qualified majority voting under Article 95; unanimity under
Articles 30(1) and 34.
Summary of Schengen provisions allocated
to Articles 95 TEC and 30(1) and 34 TEU
Convention Articles 126, 127, 128: these provisions
are in Title VI of the Convention concerning protection of personal
data.
Article 126 requires all Schengen States
to adopt national provisions guaranteeing a level of protection
at least equal to that of the 1981 Council of Europe Convention
on the automatic processing of personal data. There are a number
of further conditions as to the use which may be made of data
transmitted pursuant to the Schengen Convention, the correction
or destruction of incorrect data, and liability to compensate
for damage caused to an injured party. These latter conditions
do not apply to those parts of the Schengen Convention
concerning mutual assistance in criminal matters, the non bis
in idem principle, extradition, and transfer of enforcement
of criminal judgments. Article 126 as a whole does not apply to
the provisions of the Convention on the Schengen Information System
and on responsibility for processing asylum applications.
Article 127 makes clear that the data
protection requirements in Article 126 also apply to the transmission
of data from and to non-automated data files, and sets out the
rules which apply to personal data which is not automatically
processed or held in non-automated data files. There are similar
exceptions to those listed under Article 126.
Article 128 makes the transmission of
personal data by or to each Schengen State conditional on instructing
a national supervisory authority to monitor independently compliance
with the provisions on processing of personal data in data files.
The same exceptions apply in relation to this Article.
4. LEGAL BASE
IN THE
SCHENGEN PROTOCOL
The Protocol Integrating the Schengen Acquis
into the Framework of the European Union is annexed to the EC
Treaty and the TEU.
Articles 2(2) and 8
Article 2(2) makes clear that for those
Member States having signed accession protocols to the Schengen
agreements but which have not yet met the conditions for accession
by the time the Amsterdam Treaty enters into force, the Council
of thirteen will determine unanimously the dates on which the
Schengen acquis will apply.
Under Article 8, full acceptance of the
Schengen acquis and further measures building on it will be a
necessary condition of EU membership for applicant countries.
Summary of Schengen provisions allocated
to Articles 2(2) and 8 of the Schengen Protocol
Convention Final Act, declaration 1: this provides
that the Convention shall not enter into force until the preconditions
for its implementation have been fulfilled in the signatory States
and checks at external borders are effective.
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