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Published online by Cambridge University Press: 27 October 2017
It must be considered that there is nothing more difficult to carry out, nor more doubtful of success, nor more dangerous to handle, than to initiate a new order of things. Niccolò Machiavelli, The Prince
It was born, with much rejoicing, at a party near a quiet Luxembourg village; it died, alone and unlamented, on a desk in a non-descript Brussels office. On May 1, 1999, the fourteen-year old Schengen legal order finally breathed its last; but nothing quite became its life as the ending of it. For it was immediately reincarnated, with much confusion, into a legal system born in Rome over forty years ago. Long a byword for obsessive secrecy, unaccountability and complexity, the Schengen legal system has with one stroke moved from the “black market” of European integration into the mainstream.
1 Still unpublished in the Official Journal; see Bunyan, T., (ed.), Key Texts on Justice and Home Affairs in the European Union (Statewatch, 1997) 107 Google Scholar.
2 Also still unpublished in the Official Journal; see ibid, 110. For early analysis, see O’Keeffe, D., “The Schengen Convention: A Suitable Model for European Integration?” 11 (1991) YEL, 185 Google Scholar; Schutte, J., “Schengen: Its Meaning for the Free Movement of Persons in Europe” 28 (1991) CMLRev., 549 Google Scholar.
3 Council doc. 11780/97, 27 Oct. 1997. This has now been replaced by the first agreement with Norway and Iceland pursuant to the Schengen Protocol.
4 On the effect of Article 14, see now Case C-378/97, Wijsenbeek, [1999] ECR I-6207.
5 On that date, it was applied in the five initial Schengen states, plus Spain and Portugal.
6 Only Article 128 (establishing a data protection authority) applies to Title IV on the SIS, which instead contains its own data protection regime.
7 The Protocol removed a temporal limit on the application of the Geneva Convention. All Member States have ratified both instruments.
8 On the Schengen institutions, see van de Rijt, W., “Le Fonctionnement des Institutions Schengen: ‘Pragmatisme, Toujours’” in Den Boer, M., (ed.), Schengen’s Final Days: The Incorporation of Schengen into the new TEU, External Borders and Information Systems (Maastricht, EIPA, 1998)Google Scholar.
9 Sch/com-ex (95) 13, 29 June 1995.
10 Point 2.1, Sch/com-ex (93) decl 10, 14 Dec 1993 (free translation from French version).
11 See below, s. IV.A and IV.C(i).
12 See Curtin, D., and Meijers, H., “The Principle of Open Government in Scehengen and the European Union: Democratic Retrogression?” 32 (1995) CMLRev., 391 Google Scholar and Van Lancker, A., “Transparency and Accountability of Schengen” in Den Boer, M., ed., Schengen, Judicial Cooperation and Policy Coordination (Maastricht, EIPA, 1997), 61 Google Scholar.
13 See Groenendijk, C.A., “The incorporation of Schengen: Continuation of the Democratic Deficit or a Fresh Start?” (forthcoming).
14 OJ 1997 C 340.
15 On the pre- and post-Amsterdam third pillar and Title IV EC, see generally Barrett, G., “Cooperation in Justice and Home Affairs in the European Union: An Overview and Critique in light of the Treaty of Amsterdam” in Contemporary Issues in Irish Law and Policy (1998), 239; Steenbergen, J. D. M., “All the King’s Horses…Probabilities and Possibilities for the Implementation of the new Title IV EC Treaty” 1 (1999) EJML, 29 Google Scholar; Simpson, G., “Asylum and Immigration in the European Union after the Treaty of Amsterdam” 5 (1991) EPL 91 Google Scholar; Peers, S., EU Justice and Home Affairs Law (Harlow, Longman, 2000), Chapters 2 and 3Google Scholar; and further literature cited therein.
16 On the Protocol, see De Zwaan, J., “Schengen and its Incorporation into the New Treaty: The Negotiating Process” in Schengen’s Final Days above n 8 at 13; Picarra, N., “La Mise en Oeuvre du Protocole Integrant l’Acquis de Schengen dans le Cadre de l’Union Europeene: Regles et Procedures” in Schengen’s Final Days (above n 8) at 25; Wagner, E., “The Integration of Schengen into the Framework of the European Union” 2: 1 (1999) LIEI Google Scholar; Staples, H., The Legal Status of Third-Country Nationals Resident in the European Union (The Hague, Kluwer, 1999), 152–155 Google Scholar; and Den Boer, M., and Corrado, L., “Off the Record or for the Record: Comments About the Incorporation of Schengen into the EU” (1999) EJML (forthcoming).
17 Picarra, EJML at 34.
18 In practice, only the Central Group had such powers, above n 9.
19 Greece, Denmark, Sweden and Finland. The Council reached political agreement on full application of Schengen in Greece in Dec 1999 (OJ 1999 L 327/58).
20 A Declaration to the Final Act of the Amsterdam Treaty concerning Article 4 of the Protocol does make reference to the Commission; but its opinions on UK and Irish accessions to Schengen cooperation pursuant to this Declaration are non-binding.
21 The Council has the right to consult the Parliament even when the Treaty does not oblige it to do so.
22 Monar, J., “Schengen and Flexibility in the Treaty of Amsterdam: Opportunities and Risks of Differentiated Integration in EU Justice and Home Affairs” in den Boer, M., Guggenbuhl, A. and Vanhoonacker, S. (eds.), Coping with Flexibility and Legitimacy after Amsterdam (Maastricht, EIPA, 1998), 9, 20Google Scholar.
23 Art. 2(1), Schengen Protocol; Council Decision 1999/435 defining the acquis, OJ 1999 L 176/1; and Council Decision 1999/436 determining legal bases for the acquis, OJ 1999 L 176/17.
24 See particularly Art. 7, Schengen Protocol; Council Decisions 1999/307/EC integrating the Schengen secretariat into the Council Secretariat OJ 1999 L 119/49; 1999/322/EC awarding the Council Secretary-General power to conclude contracts relating to the SIS OJ 1999 L 123/49; 1999/323/EC establishing a financial regulation for the foregoing OJ 1999 L 123/51; and 1999/438/EC on the Schengen Joint Supervisory Body OJ 1999 L 176/34. The first of these decisions is facing legal challenges: Case T-107/99 Garcia de Retortillo v. Council, OJ 1999 C 226/31; Case T-164/99 Leroy v. Council, OJ 1999 C 281/21; and Case T-166/99 Andres de Dios v. Council, OJ 1999 C 281/23.
25 Art. 6, Schengen Protocol; agreements with Norway and Iceland regarding the Schengen acquis OJ 1999 L 176/35; OJ 2000. L 15/1 Council Decision implementing the former treaty OJ 1999 L 176/31; and Rules of Procedure of EU/Norway/Iceland Mixed Committee OJ 1999 C 211/9. See Peers, S., “Flexible Association or Incoherent Colonialism? Norway, Iceland, and Schengen Integration” (forthcoming).
26 Art. 5, Schengen Protocol (general aspects); Article 3, Schengen Protocol and Article 5, Protocol on Denmark (effects in Denmark). On Denmark and Schengen, see Hedemann Robinson, M., “The Area of Freedom, Security and Justice with Regard to the UK, Ireland and Denmark: The Opt-in/Opt-outs under the Treaty of Amsterdam” in O’Keeffe, D. and Twomey, P. (eds), Legal Issues of the Amsterdam Treaty (Hart, Oxford, 1999), 289 Google Scholar; Tuytschaever, P., Differentiation in EU Law (Hart, 1998) 99–100 Google Scholar; Toth, A.G., “The Legal Effects of the Protocols Relating to the UK, Ireland and Denmark” in Heukels, T., et al (eds.), The European Union After Amsterdam: A Legal Analysis (The Hague, Kluwer, 1998), 227 Google Scholar; De Zwaan, J., “Opting in and Opting out of Rules Concerning the Free Movement of Persons: Problems and Practical Arrangments” 1 (1998) CYELS, 107 Google Scholar, and literature cited therein.
27 See Peers. S., “Justice and Home Affairs Decision-Making After Amsterdam” (forth coming).
28 Art. 4, Schengen Protocol; second treaty with Norway and Iceland above n 25; Council (OJ 2000, L 131/43), approved 29 May 2000. Decision on application to United Kingdom). On the position of the United Kingdom and Ireland, see literature cited in above n 26.
29 See Albors-Llorens, A., “Changes in the Jurisdiction of the Court of Justice under the Treaty of Amsterdam” 35 (1998) CMLRev., 1273 Google Scholar, and Peers, S., “Who’s Judging the Watchmen? The Judicial System of the Area of Freedom, Security and Justice” 18 (1998) YEL 337 Google Scholar.
30 Above n 23. I use the word “allocation” thoughout this paper, because it was used in many drafts of the relevant Council Decision and accurately describes the process in English. The alternative phrase “ventilation” does not.
31 Council document 7233/1/98, 8 May 1998; see text in House of Lords Select Committee on the European Communities, Integrating the Schengen Acquis into the European Union (1997–98, 31st report), Annex 3.
32 Note 23 above.
33 On this agreement, see n 25 above.
34 On Sirene, see Tromp, R., “The Inner Workings of Sirene” in Schengen’s Final Days above n 8 163; Mathiesen, T., On Globalization and Control: Towards an Integrated Surveillance System in the EU (Statewatch, 1999)Google Scholar.
35 Sch/com-ex (93) 22, 14 Dec. 1993.
36 OJ 1997 C 254.
37 Directive 91/477 OJ 1991 L 256/51. Articles 82 and 91 of the Convention have been kept, on the grounds that they cover issues (antique weapons and military weapons) not addressed by the Directive. A footnote claims that, “[u]nder Article 296(1)(b) TEC the Member States are competent in respect of arms of war”, but it is arguable that their competences over such weapons are rather limited: see Peers, S., “National Security and European Law” 16 (1996) YEL 363 at 379–382 Google Scholar.
38 Regulation 3925/91 OJ 1991 L 374/4.
39 For more detail, see Wagner above n 16.
40 See Council document 12519/98, 3 Nov. 1998, which listed the outstanding problems concerning allocation and definition of the acquis and suggested solutions.
41 See Council document 7233/4/98, 17 Dec. 1998.
42 Council document 5619/99, 1 Feb. 1999.
43 Council document 6465/99, 3 Mar. 1999.
44 Council document 7301/99, 23 Apr. 1998.
45 Sch/com-ex (99) 11 Rev 2, 28 Apr. 1999.
46 The allocation Decision allocated it to Article 31 EU.
47 OJ 1998 C 216/1; Austria made no reference to this Convention.
48 On the “existence” issue, see particularly paras. 100, 109 and 112 of the House of Lords Report, above n 31.
49 Council document 8354/4/98, 29 Nov. 1998, lists 98 Executive Committee Decisions and 45 Executive Committee Declarations to the end of 1997; compare to Annex A’s list of 96 Decisions and 37 Declarations to April 1999.
50 Sch/com-ex (99) 4 and Sch/com-ex (99) 13, both 28 Apr. 1999.
51 For instance, see Sch/com-ex (94) decl 6a rev 4, on Switzerland and Poland.
52 See Curtin and Meijers, above n 12; Monar, J., “Legitimacy of EU Action in Justice and Home Affairs: An Assessment in the Light of the Reforms of the Treaty of Amsterdam” in Schengen, Judicial Cooperation and Policy Coordination above n 12 205, at 215–217.
53 On November 30, 1999 I complained to the European Ombudsman about the Council’s continuing failure to publish the allocated provisions of the acquis.
54 See most recently OJ 1999 C 133/19.
55 See by analogy Case T-174/95 Svenska Journalistforbundet [1998] ECR II-2289 and Case T-14/98 Hautala, judgment of the Court of Justice of 19 July 1999 (not yet reported) in which the Court of First Instance ruled that access to second and third pillar documents was covered by the Council’s rules on access to documents, not by the provisions of the EU Treaty.
56 For example, see Case T-105/95 WWF v. Commission [1997] ECR II-313, para. 56; Case T-124/96 Interporc (I) v. Commission [1998] ECR II-231, para. 49.
57 Case T-188/97 Rothmans v. Commission, judgment of the Court of Justice of 19 July 1999 (not yet reported), para. 55.
58 Of course, the Schengen Executive Committee retained such power until that date; several of its Decisions in 1999 had the clear aim of facilitating integration of the acquis into the EU (see Decisions consolidating manuals (above n 50) and Sch/com-ex (99) 9 rev, 28 Apr. 1999, resolving the Schengen acquis).
59 See Case 43/75 Defrenne II [1976] ECR 455, para. 58.
60 See similarly the comments on the temporal scope of the Court’s jurisdiction over the acquis, in Peers, above n 29 at 408–409.
61 For example, Sch/Com-ex (97) Decl 7 Rev, 27 June 1996, on transfer and readmission between Schengen states. Note also that opinions on this matter changed during negotiations; an early draft of the allocation Decision suggested legal bases for no fewer than thirty-one Executive Committee Declarations (Council document 14413/98, 23 Dec. 1998).
62 See Article K.8 (Maastricht version) and now Article 41 EU.
63 Indeed, see the Council Decision on a Financial Regulation for the SIS, above n 24.
64 See Den Boer and Corrado above n 16.
65 See Picarra above n 16 at 39.
66 Article 7 of the Treaty, above n 28. The Council has approved a mandate to negotiate this measure as a Community agreement: see Press Release of Justice and Home Affairs Council, May 2000.
67 COM (1999) 260, 26 May 1999.
68 OJ 1994 L 1/1.
69 However, Denmark wishes to participate in at least three Title IV measures outside the Schengen acquis on an intergovernmental basis (see Press Release of Justice and Home Affairs Council, 2 Dec. 1999).
70 See particularly Toth and de Zwaan, above n 26.
71 On this issue, see Peers, above n 26.
72 The European Court of Justice has ruled that Member States retain such competence throughout the entire scope of the EC Treaty, but that it can examine the effects of the exercise of such competence upon the freedoms guraranteed by the Treaty: Case C-265/95 Commission v. France [1997] ECR I-6959.
73 S. IV.C(ii) above.
74 Council document 6816/2/98, 21 Apr 1998; see text in House of Lords report, n 31 above, Annex 3.
75 Council document above n 40.
76 Council document 8354/4/98, 29 Nov 1998.
77 Council document 11270/98, 17 Sep 1998, 8.
78 Outcome of proceedings of working party meetings on 28 July and 22/23 Sept 1998, Council document 11763/1/98, 15 Oct 1998.
79 Council document 12416/98, 29 Oct 1998.
80 Council document 11561/1/98, 16 Nov 1998.
81 Council document 13278/98, 23 Nov 1998. The missing vote was the Netherlands, which had not yet taken a position. The minority were themselves split between Option 1 (the United Kingdom, Ireland and Luxembourg, joined by the Commission) and Option 3 (Germany, Belgium and Finland).
82 Council document 13278/1/98, 11 Dec. 1998. By this time, five of the minority favoured Option 3, with Luxembourg and the Netherlands now supporting it.
83 Council document 6816/5/98, 21 Dec. 1998.
84 Council document, n 61 above.
85 Council document 6261/99, 24 Feb. 1998.
86 Council document 5527/99, 25 Jan. 1999.
87 See draft allocation Decision in Council document 6816/6/98, 8 Apr. 1999.
88 Council document 7297/99, 13 Apr. 1999.
89 Case C-355/89 Barr [1991] ECR I–3479.
90 See Peers (above n 29) for more on this point at 403–409.
91 On this issue, see s. VI below.
92 On jurisdiction over cross-pillar legal disputes, see Case C-170/96 Commission v. Council [1998] ECR I-2763 (airport transit visas); see further Peers above n 29.
93 Indeed the Commission has already objected to the third pillar “legal base” of a proposed Decision on counterfeit documents OJ 1999 C 176: see Council document 8505/99, 21 May 1999 since agreed (OJ 2000, L 81).
94 Commission v. Council above n 92 above; see more explicitly the Opinion of Advocate-General Fennelly.
95 On Title VI jurisdiction and the concept of “ancillary jurisdiction”, see Peers, above n 29. For an example of such jurisdiction, see Svenska Journalistforbundet (above n 55).
96 As regards first/second pillar disputes, the Court clearly still has no direct jurisdiction to interpret Title V of the EU Treaty, but arguably retains ancillary jurisdiction to do so: see Hautala above n 55.
97 For an alternative view, see Simpson, above n 15 at 101.
98 Joined Cases 281, 283–285 and 287/85 Germany and others v. Commission [1987] ECR 3203 (immigration); Case 222/84 Johnston [1986] ECR 1651 and Case 318/86 Commission v. France [1988] ECR 3559 (policing). Indeed, EC sex discrimination rules also extend to the military, even though defence policy presently falls outside any of the three pillars: see Case C-273/97 Sirdar, judgment of the Court of Justice of 26 Oct. 1999 (not yet reported).
99 Case law beginning with Case 68/88 Commission v. Greece (Greek maize) [1989] 2965. See further Chapter 8 in Peers, S., EU Justice and Home Affairs Law above n 13.
100 Above n 72.
101 This analysis suggests that the disputed counterfeit documents Decision (n 93 above) falls within the first pillar to the extent that it is used for general purposes, but in the third pillar where it is specifically used for prosecutions. It would be best for the Council to adopt two separate but related acts.
102 Mathiesen, above n 34 at 10–11.
103 See Part V. B above.
104 Article 1(a)(ii) of Decision, above n 28.
105 See Regulation 515/97 OJ 1997 L 82 and CIS Convention OJ 1995 C 316 (not yet in force).
106 The Court of Justice upheld adoption of the Regulation pursuant to Article 308 EC (Article 235) in Case C-209/97 Commission v. Council, judgment of the Court of Justice of 18 November 1999 (not yet reported).
107 Until entry into force of the Amsterdam Treaty, the Commission could not propose third pillar measures on customs cooperation (see former Article K.3 EU).
108 The Commission v. Council judgment above n 106 implies that amendments to the Regulation are now subject to EC powers in Article 280 EC; amendment of the system for purposes unrelated to the EC budget would likely fall under Article 135 EC, with the same voting procedure. For the Convention, see Articles 34 and 39 EU.
109 Compare Article 67 EC with Article 34 EU.
110 See first pillar Decision 210/97, OJ 1997 L 19/25.
111 Wagner, above n 16 22.
112 On the links between the pillars, see Curtin, D. and Dekker, I., “The EU as a Layered International Organization: Institutional Unity in Disguise” in Craig, P. and De Burca, G., The Evolution of EU Law (Oxford, Clarendon Press, 1999), and Peers above n 29 at 365–374 Google Scholar.
113 See above n 99.
114 Above n 10.
115 See case law beginning with Case 22/70 Commission v. Council (ERTA) [1971] ECR 263.
116 Article 6(2) EU. However, this clause only refers to the 1951 European Convention on Human Rights and national human rights law; the Court of Justice has long held that the sources of human rights principles in the EC Treaty include any international instrument which Member States have collaborated upon.
117 See Groenendijk, above n 13; see views of the United Kingdom Home Office and House of Lords Select Committee, paras 114 and 140 of report, above n 31.
118 See Picarra, 45–46, and den boer and Carrado, both above n 16.
119 OJ 1999 C 19.
120 Article 6(9) of Decision, n 28 above.
121 Articles 26 and 27(1) and, to some extent Articles 76, 126 and 127 of the Convention.
122 Perhaps the Council believes that these provisions, unlike Article 75 of the Convention, do not create rights for individuals; but if so, it is confusing direct effect with direct applicability.
123 This raises the same issue mentioned in ibid.
124 Above n 115.
125 For instance, see Case C-53/96 Hermes International [1998] ECR I-3603.
126 OJ 1968 L 257/13.
127 Respectively above n 116 and EU-Bulletin, October 1999.
128 Sch/com-ex (98) 26 def, 16 Sep. 1998.
129 Articles 5(1)(a), 6(3), 8, 12(3), 17(1), 17(2), 17(3), 24 and 75(2) of the Convention; Articles 15 and 19–21 also refer back to Article 5(1)(a).
130 Case C–303/94 Parliament v. Council [1996] ECR I–2943.
131 Judgments of the Court of Justice ([1999] ECR I-5751, 6025 and 6121) in Joined Cases C-115, 16 and 117/97 Bentjens’ Handelsondernmigs BV, paras 54, 55 and 67; Case C-219/97 Maatschappij Drijvende Bokken BV, paras 44, 45 and 57; and Case C-67/96 Albany International, paras 57, 58 and 67.
132 Wijsenbeek, above n 4.