Select Committee on European Communities Minutes of Evidence

Examination of Witness (Questions 213 - 219)




  213.  Good afternoon, Mr Fortescue. You are quite familiar with this Committee, and I think you know a fair amount about this inquiry, and other members of the Committee will know that I have poached you on two or three occasions to update us on what is happening in Brussels. Indeed, my Lord Kingsland and I went to take evidence from you in Brussels about 18 months ago. Is there anything you would like to say by way of opening?
  (Mr Fortescue)  Indeed this is not the first time I have appeared before the Committee which carries this name, though I do not know if any of the members were the same at the time. I know what you are inquiring into, at least I think I do. I will be happy to try to bring what wisdom I can, given how many people you have already heard from. Perhaps it would be useful to introduce briefly myself and what I do so that you can know what might be the questions I can perhaps help with. My name is Adrian Fortescue. I work at the European Commission in the Secretariat-General, which is, I suppose, our equivalent of the Cabinet Office. Within that I am a Deputy Director-General with particular responsibility for what is currently known as Justice and Home Affairs and will come to be known I think as Freedom, Security and Justice when the Amsterdam Treaty comes into force. It is a small team, but much of our work is trying to focus on what Amsterdam means for work in this area. We do not, I hasten to say, follow Schengen in its detail. That is another department which does that, but we have to follow it in a rather general way because without that the next Treaty will not make any sense. If I seem to be comfortable in your language, it is because I am a United Kingdom citizen and, as one distinguished member of the Committee knows, was once a member of the Foreign Service, but I think it is in my capacity as a European Commission official that you want to hear from me, not in my previous capacity.

  214.  Perhaps I might start by asking you about the incorporation of the Schengen acquis because it is part of the background to this inquiry which is concerned, as you know, with the British opt-out costs and benefits of maintaining the British opt-out. Can you tell us what progress has been made with incorporating the Schengen acquis into the Treaty framework? Is that one of the things which you are up to date on?

  A.  I can try and answer that, my Lord Chairman, but it is not quite as easy as it sounds. There are two aspects to incorporating Schengen, one of which was handled by my Department and is more or less in place, which is how to deal with the Norway/Iceland dimension to it, which is not without its difficulties. We have found a solution to that, I think. The second and more difficult aspect is how to divide the Schengen acquis, if I can use the word, between the two Pillars that it will be divided between under the Amsterdam Treaty. That work is not advancing very fast. There are real difficulties there. Some of them have more of a political nature than a legal nature, but the requirement to have it all done by the time the Treaty enters into force is there. There is a fallback solution, as you know, if it is not done. If there is no agreement it moves automatically into the Third Pillar, into Title Six of the Amsterdam Treaty. The Commission, which does not share that opinion as being the right solution, will have to take some decisions about what it can do about it if we are faced with that fallback position simply happening by default.

Lord Inglewood

  215.  Arising from your initial comments, are you happy that the Schengen acquis has been identified satisfactorily because certainly when we were considering the matter there seemed to be a lot of doubt as to exactly what was included in the acquis and what was not. Are you happy that the definition of what it is that has to be incorporated is sound and final?

  A.  I think the answer is more or less. It is true that there are rather obscure corners of the Schengen acquis which are wrapped up in documents which are still considered confidential, but the Commission, which is not part of Schengen as you know and had observer status in Schengen, is more or less content that we know what the Schengen acquis is, sufficiently anyway to conduct a separate exercise, which is to try and brief the candidate countries on what the Schengen acquis is, because they too have to accept that. We have had sufficient contact now with the Member States of Schengen and with the Schengen Secretariat to have an acquis which they agree is the right acquis to present to the candidate countries. That is our starting point and I think it is more or less okay.

Lord Bridges

  216.  Who will actually make this decision of what the acquis is? Is it the Council and, if so, will they take this decision separately from where it is allotted in the Treaty, that it will be a two-stage decision in the Council, the first saying, "Yes, we agree this is what the acquis is", and then at a later meeting we decide what to put where, or is it all part of the same thing?

  A.  It is different to the extent that the identification of the final decision of what constitutes the acquis rests with the Schengen Member States, 13 of them. Once they have taken that decision, the distribution of it is a matter for the Council, the 15. It is a two-stage process, if you like. The 13 Schengen countries are agreed on what their acquis is, and the work being done by the 15 is on the basis of what they agree among themselves represents the acquis.

  217.  The way in which they will reach this decision on what is the acquis is in a meeting of the Council presumably, rather than at an intergovernmental conference?

  A.  I do not think I can quite go along with that. It is certainly not an intergovernmental conference. But the Schengen Member States themselves, acting in their capacity as the Council in its composition of 13 Member States, must be allowed to decide what they have agreed among themselves and that constitutes the acquis. They then inform the full Council including therefore the two Member States who are not Schengen members, and then the 15 take over and start discussing it, which is one of the reasons why it was possible for the United Kingdom Presidency to conduct the first stages of this, to use a horrible word, Aventilation exercise.

Lord Hacking

  218.  Sorry; I did not hear that. What exercise?

  A.  In Brussels jargon, the splitting of the Schengen acquis between the First and Third Pillar is known by the word "ventilation". It is not a word I would normally use in that sense, so forgive me for doing so here, but it is part of the jargon.

Lord Lester of Herne Hill

  219.  I suppose the right word would be "defenestrate" rather than "ventilate". Among the Schengen Member States is it possible to give us an impression as to where the balance at present lies about placing the Schengen acquis under the First Pillar rather than the Third Pillar, in other words is there a strong majority, do you think, in favour of doing so and what are the key sticking points in political terms that might cause the Schengen Member States not to wish to put the whole of the Schengen acquis in the First Pillar?

  A.  I think it would be wrong of me to identify by name what Member State is taking what position. I think that is beyond my remit. There is no unanimity among the Schengen Member States on this. The Commission has taken a view that those areas of the Schengen acquis which you can clearly identify as being covered by the new Title IV of the Treaty should be regarded as moving to the First Pillar. That to us seems to be clear. In that we have a certain amount of support from a number of Member States of Schengen. There are however Schengen Member States who think it would be simpler and more practical to use the easy solution if you like, the fallback solution, and simply move it to the Third Pillar in its entirety on the grounds that even in the areas covered by Title IV: immigration, asylum and other related areas, there is a sufficient law enforcement dimension to make it a candidate to remain in the Third Pillar.

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