APPENDIX 5
RELEVANT TREATY TEXTS
PROTOCOL INTEGRATING THE SCHENGEN ACQUIS
INTO THE FRAMEWORK OF THE EUROPEAN UNION
THE HIGH
CONTRACTING PARTIES
NOTING that the Agreements on the gradual abolition
of checks at common borders signed by some Member States of the
European Union in Schengen on 14 June 1985 and on 19 June 1990,
as well as related agreements and the rules adopted on the basis
of these agreements, are aimed at enhancing European integration
and, in particular, at enabling the European Union to develop
more rapidly into an area of freedom, security and justice.
DESIRING to incorporate the above mentioned
agreements and rules into the framework of the European Union.
CONFIRMING that the provisions of the Schengen
acquis are applicable only if and as far as they are compatible
with the European Union and Community law.
TAKING INTO ACCOUNT the special position of
Denmark.
TAKING INTO ACCOUNT the fact that Ireland and
the United Kingdom of Great Britain and Northern Ireland are not
parties to and have not signed the above mentioned agreements;
that provision should, however, be made to allow those Member
States to accept some or all of the provisions thereof.
RECOGNISING that, as a consequence, it is necessary
to make use of the provisions of the Treaty on European Union
and of the Treaty establishing the European Community concerning
closer cooperation between some Member States and that those provisions
should only be used as a last resort.
TAKING INTO ACCOUNT the need to maintain a special
relationship with the Republic of Iceland and the Kingdom of Norway,
both States having confirmed their intention to become bound by
the provisions mentioned above, on the basis of the Agreement
signed in Luxembourg on 19 December 1996.
HAVE AGREED UPON the following provisions, which
shall be annexed to the Treaty on European Union and to the Treaty
establishing the European Community.
Article 1
The Kingdom of Belgium, the Kingdom of Denmark,
the Federal Republic of Germany, the Hellenic Republic, the Kingdom
of Spain, the French Republic, the Italian Republic, the Grand
Duchy of Luxembourg, the Kingdom of the Netherlands, the Republic
of Austria, the Portuguese Republic, the Republic of Finland and
the Kingdom of Sweden, signatories to the Schengen agreements,
are authorised to establish closer cooperation among themselves
within the scope of those agreements and related provisions, as
they are listed in the Annex to this Protocol, hereinafter referred
to as the "Schengen acquis". This cooperation shall
be conducted within the institutional and legal framework of the
European Union and with respect for the relevant provisions of
the Treaty on European Union and of the Treaty establishing the
European Community.
Article 2
1. From the date of entry into force of
the Treaty of Amsterdam, the Schengen acquis, including the decisions
of the Executive Committee established by the Schengen agreements
which have been adopted before this date, shall immediately apply
to the thirteen Member States referred to in Article 1, without
prejudice to the provisions of paragraph 2 of this Article. From
the same date, the Council will substitute itself for the said
Executive Committee.
The Council, acting by the unanimity of its
Members referred to in Article 1, shall take any measure necessary
for the implementation of this paragraph. The Council, acting
unanimously, shall determine, in conformity with the relevant
provisions of the Treaties, the legal basis for each of the provisions
or decisions which constitute the Schengen acquis.
With regard to such provisions and decisions
and in accordance with that determination, the Court of Justice
of the European Communities shall exercise the powers conferred
upon it by the relevant applicable provisions of the Treaties.
In any event, the Court of Justice shall have no jurisdiction
on measures or decisions relating to the maintenance of law and
order and the safeguarding of internal security.
As long as the measures referred to above have
not been taken and without prejudice to Article 5(2), the provisions
or decisions which constitute the Schengen acquis shall be regarded
as acts based on Title VI of the Treaty on European Union.
2. The provisions of paragraph 1 shall apply
to the Member States which have signed accession protocols to
the Schengen agreements, from the dates decided by the Council,
acting with the unanimity of its Members mentioned in Article
1, unless the conditions for the accession of any of those States
to the Schengen acquis are met before the date of the entry into
force of the Treaty of Amsterdam.
Article 3
Following the determination referred to in Article
2(1), second subparagraph, Denmark shall maintain the same rights
and obligations in relation to the other signatories to the Schengen
agreements, as before the said determination with regard to those
parts of the Schengen acquis that are determined to have a legal
basis in Title IIIa of the Treaty establishing the European Community.
With regard to those parts of the Schengen acquis
that are determined to have legal base in Title VI of the Treaty
on European Union, Denmark shall continue to have the same rights
and obligations as the other signatories to the Schengen agreements.
Article 4
Ireland and the United Kingdom of Great Britain
and Northern Ireland, which are not bound by the Schengen acquis,
may at any time request to take part in some or all of the provisions
of this acquis.
The Council shall decide on the request with
the unanimity of its members referred to in Article 1 and of the
representative of the Government of the State concerned.
Article 5
1. Proposals and initiatives to build upon
the Schengen acquis shall be subject to the relevant provisions
of the Treaties.
In this context, where either Ireland or the
United Kingdom or both have not notified the President of the
Council in writing within a reasonable period that they wish to
take part, the authorisation referred to in Article 5a of the
Treaty establishing the European Community or Article K.12 of
the Treaty on European Union shall be deemed to have been granted
to the Members States referred to in Article 1 and to Ireland
or the United Kingdom where either of them wishes to take part
in the areas of cooperation in question.
2. The relevant provisions of the Treaties
referred to in the first subparagraph of paragraph 1 shall apply
even if the Council has not adopted the measures referred to in
Article 2(1), second subparagraph.
Article 6
The Republic of Iceland and the Kingdom of Norway
shall be associated with the implementation of the Schengen acquis
and its further development on the basis of the Agreement signed
in Luxembourg on 19 December 1996. Appropriate procedures shall
be agreed to that effect in an Agreement to be concluded with
those States by the Council, acting by the unanimity of its Members
mentioned in Article 1. Such Agreement shall include provisions
on the contribution of Iceland and Norway to any financial consequences
resulting from the implementation of this Protocol.
A separate Agreement shall be concluded with
Iceland and Norway by the Council, acting unanimously, for the
establishment of rights and obligations between Ireland and the
United Kingdom of Great Britain and Northern Ireland on the one
hand, and Iceland and Norway on the other, in domains of the Schengen
acquis which apply to these States.
Article 7
The Council shall, acting by a qualified majority,
adopt the detailed arrangements for the integration of the Schengen
Secretariat into the General Secretariat of the Council.
Article 8
For the purposes of the negotiations for the
admission of new Member States into the European Union, the Schengen
acquis and further measures taken by the institutions within its
scope shall be regarded as an acquis which must be accepted in
full by all States candidates for admission.
Annex
Schengen Acquis
1. The Agreement, signed in Schengen on
14 June 1985, between the Governments of the States of the Benelux
Economic Union, the Federal Republic of Germany and the French
Republic on the gradual abolition of checks at their common borders.
2. 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, with related Final Act and common
declarations.
3. The Accession Protocols and Agreements
to the 1985 Agreement and the 1990 Implementation Convention with
Italy (signed in Paris on 27 November 1990), Spain and Portugal
(signed in Bonn on 25 June 1991), Greece (signed in Madrid on
6 November 1992), Austria (signed in Brussels on 28 April 1995)
and Denmark, Finland and Sweden (signed in Luxembourg on 19 December
1996), with related Final Acts and declarations.
4. Decisions and declarations adopted by
the Executive Committee established by the 1990 Implementation
Convention, as well as acts adopted for the implementation of
the Convention by the organs upon which the Executive Committee
has conferred decision making powers.
PROTOCOL
ON THE APPLICATION OF CERTAIN ASPECTS
OF ARTICLE 7a OF THE TREATY ESTABLISHING THE EUROPEAN COMMUNITY
TO THE UNITED KINGDOM AND TO IRELAND
THE HIGH
CONTRACTING PARTIES
DESIRING to settle certain questions relating
to the United Kingdom and Ireland.
HAVING REGARD to the existence for many years
of special travel arrangements between the United Kingdom and
Ireland.
HAVE AGREED UPON the following provisions, which
shall be annexed to the Treaty establishing the European Community
and to the Treaty on European Union.
Article 1
The United Kingdom shall be entitled, notwithstanding
Article 7a of the Treaty establishing the European Community,
any other provision of that Treaty or of the Treaty on European
Union, any measure adopted under those Treaties, or any international
agreement concluded by the Community or by the Community and its
Member States with one or more third States, to exercise at its
frontiers with other Member States such controls on persons seeking
to enter the United Kingdom as it may consider necessary for the
purpose:
(a) of verifying the right to enter the United
Kingdom of citizens of States which are Contracting Parties to
the Agreement on the European Economic Area and of their dependants
exercising rights conferred by Community law, as well as citizens
of other States on whom such rights have been conferred by an
agreement by which the United Kingdom is bound; and
(b) of determining whether or not to grant
other persons permission to enter the United Kingdom.
Nothing in Article 7a of the Treaty establishing
the European Community or in any other provision of that Treaty
or of the Treaty on European Union or in any measure adopted under
them shall prejudice the right of the United Kingdom to adopt
or exercise any such controls. References to the United Kingdom
in this Article shall include territories for whose external relations
the United Kingdom is responsible.
Article 2
The United Kingdom and Ireland may continue
to make arrangements between themselves relating to the movement
of persons between their territories ("the Common Travel
Area"), while fully respecting the rights of persons referred
to in Article 1, first paragraph, point (a) of this Protocol.
Accordingly, as long as they maintain such arrangements, the provisions
of Article 1 of this Protocol shall apply to Ireland under the
same terms and conditions as for the United Kingdom. Nothing in
Article 7a of the Treaty establishing the European Community,
in any other provision of that Treaty or of the Treaty on European
Union or in any measure adopted under them, shall affect any such
arrangements.
Article 3
The other Member States shall be entitled to
exercise at their frontiers or at any point of entry into their
territory such controls on persons seeking to enter their territory
from the United Kingdom or any territories whose external relations
are under its responsibility for the same purposes stated in Article
1 of this Protocol, or from Ireland as long as the provisions
of Article 1 of this Protocol apply to Ireland.
Nothing in Article 7a of the Treaty establishing
the European Community or in any other provision of that Treaty
or of the Treaty on European Union or in any measure adopted under
them shall prejudice the right of the other Member States to adopt
or exercise any such controls.
PROTOCOL
ON THE POSITION OF THE UNITED KINGDOM
AND IRELAND
THE HIGH
CONTRACTING PARTIES
DESIRING to settle certain questions relating
to the United Kingdom and Ireland.
HAVING REGARD to the Protocol on the application
of certain aspects of Article 7a of the Treaty establishing the
European Community to the United Kingdom and to Ireland.
HAVE AGREED UPON the following provisions which
shall be annexed to the Treaty establishing the European Community
and to the Treaty on European Union.
Article 1
Subject to Article 3, the United Kingdom and
Ireland shall not take part in the adoption by the Council of
proposed measures pursuant to Title IIIa of the Treaty establishing
the European Community. By way of derogation from Article 148(2)
of the Treaty establishing the European Community, a qualified
majority shall be defined as the same proportion of the weighted
votes of the members of the Council concerned as laid down in
the said Article 148(2). The unanimity of the members of the Council,
with the exception of the representatives of the governments of
the United Kingdom and Ireland, shall be necessary for decisions
of the Council which must be adopted unanimously.
Article 2
In consequence of Article 1 and subject to Articles
3, 4 and 6, none of the provisions of Title IIIa of the Treaty
establishing the European Community, no measure adopted pursuant
to that Title, no provision of any international agreement concluded
by the Community pursuant to that title, and no decision of the
Court of Justice interpreting any such provision or measure shall
be binding upon or applicable in the United Kingdom or Ireland;
and no such provision, measure or decision shall in any way affect
the competences, rights and obligations of those States; and no
such provision, measure or decision shall in any way affect the
acquis communautaire nor form part of Community law as they apply
to the United Kingdom or Ireland.
Article 3
1. The United Kingdom or Ireland may notify
the President of the Council in writing, within three months after
a proposal or initiative has been presented to the Council pursuant
to Title IIIa of the Treaty establishing the European Community,
that it wishes to take part in the adoption and application of
any such proposed measure, whereupon that State shall be entitled
to do so. By way of derogation from Article 148(2) of the Treaty
establishing the European Community, a qualified majority shall
be defined as the same proportion of the weighted votes of the
members of the Council concerned as laid down in the said Article
148(2).
The unanimity of the members of the Council,
with the exception of a member which has not made such a notification,
shall be necessary for decisions of the Council which must be
adopted unanimously. A measure adopted under this paragraph shall
be binding upon all Member States which took part in its adoption.
2. If after a reasonable period of time
a measure referred to in paragraph 1 cannot be adopted with the
United Kingdom or Ireland taking part, the Council may adopt such
measure in accordance with Article 1 without the participation
of the United Kingdom or Ireland. In that case Article 2 applies.
Article 4
The United Kingdom or Ireland may at any time
after the adoption of a measure by the Council pursuant to Title
IIIa of the Treaty establishing the European Community notify
its intention to the Council and to the Commission that it wishes
to accept that measure. In that case, the procedure provided for
in Article 5a(3) of the Treaty establishing the European Community
shall apply mutatis mutandis.
Article 5
A Member State which is not bound by a measure
adopted pursuant to Title IIIa of the Treaty establishing the
European Community shall bear no financial consequences of that
measure other than administrative costs entailed for the institutions.
Article 6
Where, in cases referred to in this Protocol,
the United Kingdom or Ireland is bound by a measure adopted by
the Council pursuant to Title IIIa of the Treaty establishing
the European Community, the relevant provisions of that Treaty,
including Article 73p, shall apply to that State in relation to
that measure.
Article 7
Articles 3 and 4 shall be without prejudice
to the Protocol integrating the Schengen acquis into the framework
of the European Union.
Article 8
Ireland may notify the President of the Council
in writing that it no longer wishes to be covered by the terms
of this Protocol. In that case, the normal treaty provisions will
apply to Ireland.
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