EU Schengen acquis incorporation "mess"
01 September 1998
The incomprehensible "mess" created by the incorporation of the Schengen acquis in to the Treaty of European Union (TEU) and the Treaty establishing the European Communities (TEC) after the adoption of the Amsterdam Treaty in June 1997 is even worse than predicted (see Statewatch, vol 7 no 3 & vol 8 nos 3/4).
Under the Amsterdam Treaty the Justice and Home Affairs Council (JHA Council) will not be effected. The K4 Committee will be renamed the "Article 36 Committee". However because of the incorporation of the Schengen acquis (under the Protocol in the Treaty) the meetings of the JHA Council will have at least 10 different levels of decision-making and could possibly have 12 or more. Indeed a JHA Council meeting could come to resemble "Picadilly Circus" as the UK and Ireland will not participate in some decisions (Schengen), Denmark will not participate in some decisions, UK, Ireland and Denmark will take no part in others, and Norway and Iceland will have a say on Schengen issues - but as they are not EU members meetings with them will take place "outside" EU structures (only the formal decisions necessary to effect the discussions will take place "inside" EU structures).
The different levels of decision making with examples:
MEMBER STATES LEGAL BASIS
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Example: Decision on policing
1. 15 EU member states Title VI TEU
Example: Decision on policing
2. 13 Parties to Schengen Article 1 Schengen Protocol;
Protocol plus Title VI TEU
Norway/Iceland
Example: Decision on policing
3. 13 Parties to Schengen Articles 1 and 4 Schengen
Protocol and Ireland Protocol; Title VI TEU
and/or UK plus
Norway/Iceland
Example: Changes to the Joint Supervisory Body
4. 12 Parties to the Article 1 Schengen
to Schengen Protocol Protocol; Article 1
plus Norway/Iceland Denmark Protocol; Title IV TEC
Example: Changes on asylum policy
5. 12 Parties to Schengen Articles 1 and 4 Schengen
Protocol and Ireland Protocol; Article 1 Denmark
and/or UK plus Protocol; Title IV TEC
Norway/Iceland
Example: Directive in sphere of civil matters
6. 12 EU Member States Article 1 UK-IRL Protocol;
without Denmark, UK Article 1 Denmark Protocol;
or Ireland Title IV TEC
Example: Directive in sphere of civil matters
7. 13 EU Member States Articles 1 and 3 UK-IRL Protocol;
without Denmark, and Article 1 Denmark Protocol;
either without Ireland Title IV TEC
or without the UK
Example: Directive in sphere of civil matters
8. 14 EU Member States Article 1 and 3 UK-IRL Protocol;
without Denmark Article 1 Denmark Protocol;
Title IV TEC
Example: Amendment of visa list
9. 14 EU Member States Article 1 and 3 UK-IRL Protocol;
without Ireland or Article 1 and 4 Denmark
without the UK Protocol; Title IV TEC
Example: Amendment of visa list
10. 13 EU Member States Article 1 and 3 UK-IRL Protocol;
without Ireland and Article 1 and 4 Denm