EU: Schengen acquis (feature)
01 May 1998
Introduction
Statewatch, founded in 1991, monitors justice and home affairs in the European Union. The Schengen Agreement and the Schengen acquis has been one of the major issues with which we have been concerned. When the decisions of the Schengen Executive Committee and its subordinate committees were made given to another national parliament in the autumn of 1996 - we made this information available to researchers, voluntary groups and academics.
By way of introduction to your Committee's consideration of the incorporation of the Schengen acquis following the Amsterdam Treaty of June 1997 we would make the following observations:
a. When the Amsterdam Treaty ratification process is completed the Schengen acquis will apply immediately to thirteen Member States of the European Union. It will also automatically apply to the applicant countries under the enlargement process.
b. There is no provision in the Amsterdam Treaty for the European Parliament to be involved in process of incorporating the Schengen acquis.
c. While the incorporation of the Schengen acquis has no direct effect on the UK under the Schengen Protocol in the Amsterdam Treaty - as the UK and Ireland have opted-out - it does potentially affect the UK as the government can decide to opt-in" to any of its provision (for example, the Schengen Information System). It could also affect the rights of UK citizens who travel in the European Union as the Schengen acquis will incorporate new powers - on policing, public order, immigration and asylum - not at present provided for in the justice and home affairs acquis of the European Union. In this respect it will result in a major increase in the powers of the major agencies involved.
d. Progress on determining the content of the Schengen acquis has been slow and it should therefore be noted that should the status of any provisions of the acquis not be determined by the time the Amsterdam Treaty comes into force all such measures will automatically be placed under the intergovernmental third pillar.
e. Finally the comment must be made that when the 15 governments (including the UK in this respect) of the European Union agreed to incorporate the Schengen acquis in the Amsterdam Treaty in June 1997 few, if any, of them knew what was actually in the Schengen acquis.
Definition of the Schengen acquis
One draft decision (7233/1/98) concerns the definition of the acquis; the other concerns its allocation (6816/2/98). The first is to be adopted by the Council, as 13 Member States, under the general power given to the Council by Article 2(1), second subpara, second sentence of the Protocol; the second is to be adopted by the full Council under the specific power granted to the Council in the first sentence.
The important point about the definition of the acquis is that the Council are using this decision to decide what decisions in the acquis need not be allocated at all (if they have legal effects), either because they have been replaced by EC law (ie, firearms directive), or an EU measure binding all Member States (ie, Dublin Convention); or belong to the exclusive competence of Member States.
The definition decision lists in Article 1, detailed in Annex A, what will be defined as the Schengen acquis before deciding what need not be allocated. Annex A is incomplete because it does not yet list acts of the Schengen organs for this purpose (for example, as they refer to the Schengen Information System (SIS), although it does list acts of the Executive Committee - whether this is a complete list is a question we have not had time to examine.
The definition decision then lists in Article 2(1), detailed in Annex B, what will not be allocated for the reasons mentioned above: a) the original agreement of 1985; b) listed provisions of the Convention; c) listed provisions of Accession agreements/Protocols; d) listed measures of the Executive Committee; e) listed measures of orga