Select Committee on European Communities Minutes of Evidence

Examination of Witness (Questions 260 - 274)



  260.  Would that safeguard be exercised unilaterally or does it require some joint agreement?

  A.  It requires machinery which I have not got in my head, but it is not totally unilateral. There has to be information of the other Schengen states as far as I remember, and an indication of how long the crisis might last. I have the Article in my papers if you wish me to read it to you. Lord Bridges:   You have explained it adequately. Thank you very much.


  261.  In terms of the opting in process, to explore practicalities and complexities, how easy do you think it is going to be for a British Government to say we would want to opt into this but we would not want to opt into that? How much flexibility is there going to be there, or is it going to have to be a question of major decisions to opt into this entire dimension of justice and home affairs and opt out of the other?

  A.  If I read the protocol correctly, it is more a question of proposal by proposal,. If any Member State or the Commission tables a proposal, the United Kingdom or Irish Government looks at that proposal and takes the view that if that were to be in place, or something like it, it would bring benefit to the United Kingdom or Ireland, despite the fact that the frontier control remains, they can state that they wish to opt in. I do not think they need to make a general categorisation, "We want to opt in to X as a general category." They may wish to but I do not think they need to.

  262.  We have heard a story that we would want to opt in to everything to do with police co-operation while remaining opted out of border control. That is a manageable way forward, is it?

  A.  There you are crossing Pillars, if I may say to. If you are opting in to police co-operation different sets of rules apply.

  263.  I would like just to push a little more on the whole question of controls on people coming in from Britain. We have talked a little about the problem of third country nationals from Britain moving elsewhere in the Community. What must we expect in terms of continued border controls on people domiciled in Britain or with a right of residency in Britain as they move into the Schengen area? May we have to anticipate that border controls are imposed on our citizens and on our third country nationals. I assume that is correct.

  A.  To the extent that anyone travelling from the United Kingdom into the Schengen area is crossing the external frontier of Schengen, the countries will impose border controls and it is their perfect right to do so within limits. One very important limit of course is the rule of non-discrimination. It would be wrong, for example, for the Belgians for people arriving in Belgium from the United Kingdom to make it easier for a Schengen citizen than for a United Kingdom citizen to enter. They cannot discriminate in that way; but if they choose to impose the most rigorous and difficult controls for non Schengen Community Citizens they would have to apply it to Schengen citizens as well. It is not the nationality, but the point of departure that matters.

  264.  While maintaining national border controls is it possible to move towards a common visa regime? One of the points that has been made to us on several occasions is that third country nationals in Britain because they have separate visas, do find it very difficult to move between Britain and the Schengen area even if they the right of domicile or residency here.

  A.  I think there are two issues there. There is, as you know, under Maastricht under the First Pillar a first step towards a common visa policy in which the United Kingdom was fully involved. It was not a complete common visa policy; Amsterdam provides the possibility to go further. It comes in Title IV of the new Treaty and therefore is covered by the opt-in. The United Kingdom would have to decide whether it wishes to opt into further development of the visa policy. I imagine that many considerations would apply there and I have no idea what decision they would take. Incidentally, unlike Denmark which has decided to remain in the visa part of the First Pillar, the United Kingdom and Ireland have decided they wish to regard visa policy, as I understand it, as covered by their opt in. They can do it or not do it and they have not given any indications of which way they wish to go down. There is the separate question which was covered, if you remember, by the proposal on the Council table sometimes known as the Monti package. I do not know if you are familiar with that but the proposal was that any third country national resident legally inside any Member State of the European Union should be able to travel to any other state of the European Union on the basis of his or her residence permit without having to seek a further visa. That proposal was never adopted because it got caught up in the Amsterdam negotiations and went into abeyance while Amsterdam was being negotiated. There is no reason why it should not be resuscitated. If it were to be adopted I personally think it would represent a great improvement for third country nationals legally resident in one Member State or another. And incidentally, again I am expressing a personal view, presumably it would mean less work for visa issuing officials because if somebody has gone to all the trouble to see that a third country national is issued with a residence permit has probably examined that person's situation more deeply than for a short- term visa. That proposal is not adopted but I think it is a good proposal and I hope it is adopted.

  265.  That is very helpful. Does all this depend upon the Irish Government and British Government continuing to remain agreed to maintain the same positions in terms of their relationship with the other 13? What happens if Irish and British policies begin to diverge?

  A.  There is nothing which says that they have to go hand in hand and indeed I think there is even a difference in the Protocol. I think the Irish have stated more clearly than the United Kingdom has that they may wish to think about this again earlier. There is a nuance in the Protocol, if I remember correctly. Where I think there would perhaps be a different consideration would be if the Irish were to decide they wanted to exercise their right to join Schengen fully and become part of the Schengen free travel area rather than remain part of the United Kingdom/Ireland free travel area. If they were to do that I suppose it would have consequences for movement between the United Kingdom and Ireland. My understanding is that far more people in Ireland visit the United Kingdom than visit the rest of the European Continent. That might be a consideration. But, if for example there were to be a detailed asylum policy proposal on the table, the United Kingdom could decide not to opt in and the Irish would decide they do want to opt in. There is nothing inherent in the Treaty which would prevent that.

Lord Lester of Herne Hill

  266.  Mr Fortescue has answered all our questions with most impressive clarity, if I may say so, but I find myself at the end of the evidence more confused than at the beginning because he has led us with such clarity through the maze that I now am not clear as to the overall benefits and burdens of the United Kingdom maintaining its current opt-out policy. Could I ask this question and hope it is not too difficult a question to answer. If Mr Fortescue were asked within the Commission in broad terms to sum up in an independent and dispassionate way what were the main benefits to the United Kingdom and the main burdens upon the United Kingdom in continuing its current opt-out, how would he answer that question? How would he sum up overall the benefits and burdens?

  A.  Let me first apologise if I have led to confusion where there was clarity before! That was not my intention.

  267.  I mean the opposite, the problem is in the maze not in the guide through the maze.

  A.  Can I answer that question on two levels. I think it must be the starting point for the European Commission that the 15 Member States should as far as possible move towards the same objectives at more or less the same speed. That is what the European Commission's starting point on all matters would be. Therefore in the most general sense the Commission would be more than happy to see the non-application of the opt-out. That has been the general demarche of the Commission from the Treaty of Rome, through the Single European Act and the Maastricht Treaty up to Amsterdam. Seen from the Commission' point of view I see nothing but advantage in the United Kingdom not exercising its opt-out. The Commission is however guardian of the Treaty and the Treaty says that the United Kingdom may exercise its opt-out and it is not for us to contradict the Treaty. Your question related to what, as seen from the United Kingdom's point of view, they would be gaining and what they would be losing. It is a question I have no doubt you have put to people whose job it is to advice the Government and it is not my job to do so. I would simply make one very general comment, if I may. In my previous and my present experience, I have lived quite a number of years now watching developments advance in the European Community and subsequently in the European Union and I have never yet seen an example where the United Kingdom's position was easier by joining in later. Chairman:   That is a good answer.

Earl of Dundee

  268.  On a point of motion, if we have already learned that Norway and Iceland are part of a dialogue, which further countries, if any, is it proposed by those who work things out for Schengen to next come in on the scene?

  A.  Norway and Iceland had a very particular position, as you know. Forgive me if I am going over very familiar ground, but when Denmark, Finland and Sweden decided that they wanted to join the Schengen system the one thing that they all agreed they did not want to do was to re-establish a frontier control with the other two members of the Nordic Union, Norway and Iceland. You can see why; it would be madness to create a frontier control up that spine of mountains which separate Sweden from Norway. It could not be done and it would be totally impractical. So their starting point was yes we want to join Schengen but we do not want to re-establish a frontier control in a free travel area that has worked very well since the 1950s. On that point incidentally, history seems to show that once you get rid of frontier controls, on the whole the population does not wish to reinstate them, but I say that in parenthesis. So the Norway and Iceland problem had to be settled otherwise you could not settle the Sweden/Finland/Denmark problem. The rules of Schengen are clear, you have to be a member of the European Union to join Schengen with this particular exception of Norway and Iceland. The only other countries on the list now are the candidate countries for membership of the European Union. Every single one of them knows in advance if they join the European Union they have to join Schengen too. That is stated in the Treaty. But, for example, a non-member of the Union would not apply to join Schengen and the Schengen countries are not looking for non-members of the Union to join their club.

Lord Inglewood

  269.  In your last round of comments to Lord Lester you said—and I hope I am glossing it correctly—that the Commission would like to see Schengen subsumed into the Union and would like to see the thing applied equally across the Union. Of course, within the Union and within the way in which Schengen is coming into the Union you have got some things dealt with under the First Pillar and other things dealt with under the Third Pillar. Obviously under the First Pillar you have got the control of the ECJ which in certain circumstances will after Amsterdam have some standing in respect of third pillar activities. Does the Commission have a view in general terms about the form and the system of judicial control there should be over the ex-Schengen areas of competence?

  A.  Yes but I think you have answered your own question, if I may say so. The rules of the subject matter which has moved to the First Pillar are the normal rules of the European Community which are set out in the articles going back to the Treaty of Rome. The rules which will cover those bits which move to Title VI, the residual Third Pillar if you like, are new but they are different and fall short of those Treaty of Rome rules but represent an advance over what is in Maastricht. If you remember, Maastricht made it an option and that led to all sorts of difficulties. Amsterdam has the merit of being clearer in not talking about options. Depending on the outcome of the ventilation exercise or anything that follows that, you just have to look up the Article in the Treaty and that tells you what rules govern the ECJ role.

  270.  Perhaps I can try and lead you on a bit further. Given the inter-governmental nature of much of the Third Pillar and things that flow from that in terms of individual rights and also enforcement mechanisms and so on, is that type of relationship, in the Commission's opinion, a satisfactory state of affairs for dealing with what are, by any standards, rather important matters?

  A.  I think that the Commission would certainly have welcomed it if the provisions on the Court of Justice had gone further in the Amsterdam negotiations than they did, but I do not think it is the Commission's job to try and rewrite history. It is our job to make sure that the Treaty is respected. If we do not do that perhaps we are not doing our job properly. I do not think I would wish to try and re-open those questions unless there is another Inter Governmental Conference and these questions are asked again. As of today one might wish that certain things had come out differently, and indeed the Commission took positions which were perfectly well known publicly seeking to go further in a number of areas including this one, but the Treaty says what it says. Lord Inglewood:In other words, I should ask you the same question if and when negotiations on a further IGC take place?


  271.  Two final questions, if I may. First, we are considering for our next inquiry that we ought to be looking at the proliferating computer networks which operate in this field, the Europol network, the Customs Information System and the Schengen Information System. I understand Britain is going to be fully part of the Europol system, will not formally have access to the Schengen Information System and is a full member of the Customs Information System. Do you see that creating particular problems as we move forward if Britain remains opted out of the Schengen Information System but is in the others? Is it correct that the Commission is going to act as the agent for the Schengen Information System?

  A.  No, that proposition is not on the table. It is on the table with regard to a system which does not yet exist, the Eurodac system, but there is no such proposal for the Schengen Information System. The Schengen Information System is probably the most difficult bit of unfinished business in this ventilation exercise, as you know. One proposal on the table which was a Commission proposal is that management of the system, in order to avoid the pillar problem, should be entrusted to an agency set up for that purpose; but there was no suggestion that the Commission itself should manage it.

  272.  Right. Do you see particular problems for the British in being in some of these networks and out of others?

  A.  It depends on the information that the system contains, which may or may not be useful to the United Kingdom. I think for the Europol system obviously they are part of it and there is no doubt about that. The judgement they will have to make is—and I submit it is for them to answer this question—does the information held in the Schengen Information System add a value to the information they already hold independently for the purposes for which the Schengen Information System was created? That system covers more than one area, as you know, but quite a large proportion of the information held by the Schengen system, as I understand it, is immigration related. It helps the Schengen countries cope with people crossing the external frontiers of Schengen. The United Kingdom may conclude that it has enough information on its national database to do that job properly considering it is maintaining control of every bit of its frontier; but it may equally conclude that there could be material in the Schengen Information System which would improve their own database. I suggest that may be the way they would wish to look at it but, again, it is for them not me to answer that question.

  273.  My last question simply is are you confident when the Treaty of Amsterdam is ratified relatively shortly now that the Commission will be fully up to speed and staffed to cope with the outcome of the ventilation exercise?

  A.  That is a very leading question, My Lord Chairman! If the Amsterdam Treaty comes into force at the pace it seems to be moving now we will be stretched to handle our new responsibilities as we are currently structured, that is for sure, but that is true of any area which is new in the Community's activities. My hope obviously and my expectation is that the Commission will wish to structure itself in a way which enables it to carry out the quite wide range of new responsibilities the Treaty gives us, but I cannot pretend that my small team can cope with that alone at the moment.

  274.  Thank you very much. That was an intentionally leading question, as indeed was Lord Lester's. Thank you very much indeed. You have been most helpful.

  A.  Thank you very much for inviting me.

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