Explanatory Memorandum to COM(2006)752-4 - Conclusion of the Protocol between the EU, the EC, Switzerland and Liechtenstein on the accession of Liechtenstein to the Agreement between the EU, the EC and Switzerland on Switzerland’s association with the implementation, application and development of the Schengen acquis - Main contents
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| dossier | COM(2006)752-4 - Conclusion of the Protocol between the EU, the EC, Switzerland and Liechtenstein on the accession of Liechtenstein to the ... |
|---|---|
| source | COM(2006)752  |
| date | 01-12-2006 |
On 26 October 2004, the European Union, the European Community and the Swiss Confederation signed an Agreement on the Swiss Confederation's association with the implementation, application and development of the Schengen acquis (the “Schengen agreement with Switzerland”) i.
That Agreement anticipated Liechtenstein’s possible association with the Schengen acquis and made provision in its Article 16 for Liechtenstein to accede to the Agreement by means of a protocol determining the rights and obligations of each of the contracting parties.
By letter dated 12 October 2001, Liechtenstein had already expressed its interest in joining Switzerland as a contracting party to a possible Schengen and Dublin acquis association agreement since an open border policy for the movement of persons had existed between Liechtenstein and Switzerland for decades. However, Liechtenstein was not associated with the negotiations with Switzerland on account of the absence of an agreement on savings taxation between the European Community and Liechtenstein.
The European Community and Liechtenstein subsequently concluded such an agreement on savings taxation, which has been in operation since July 2005.
By letter dated 10 June 2005 Liechtenstein confirmed that it wished to be associated with the Schengen and Dublin/Eurodac acquis.
Following the authorization given by the Council to the Commission on 27.2.2006, negotiations were held with Liechtenstein and Switzerland. On 21.6.2006 negotiations were finalised and the draft protocol on Liechtenstein's accession to the Schengen agreement with Switzerland was initialled i.
Given the fact that the Schengen agreement with Switzerland to which Liechtenstein accedes covers both first and third pillar items, the Commission proposes to follow the approach chosen for the signature and adoption of the Schengen agreement with Switzerland. The Commission proposes thus to adopt the Protocol by two separate acts, one based on the Treaty establishing the European Community (Articles 62, 63 i, 66 and 95) and one based on the Treaty on European Union (Articles 24 and 38).
Concerning the decision based on the Treaty establishing the European Community, the Council will decide by unanimity given the fact that Article 63 point 3 a) requires a unanimous vote of the Member States. The European Parliament will have to be consulted on the conclusion of the Agreement in accordance with Article 300 i of the EC Treaty.
Contents
The Commission considers that the objectives set by the Council in its negotiating directives were attained and that the draft protocol is acceptable to the Community.
The final content can be summarised as follows:
Liechtenstein accedes to the Schengen agreement with Switzerland and will have the same rights and obligations as Switzerland. Liechtenstein will have to accept the entire Schengen acquis and the development thereof, with the sole exception granted also to Switzerland (Article 7 i of the Schengen agreement with Switzerland):
If provisions of a new Schengen act or measure have the effect of no longer allowing Member States to subject compliance with requests for mutual assistance in criminal matters or the recognition of orders from other Member States to search premises and/or seize items of evidence to the conditions set out in Article 51 of the Convention Implementing the Schengen Agreement, Liechtenstein does not need to implement these provisions in its internal legal order where they apply to search and seizure requests or orders made for the purposes of investigating or prosecuting offences in the field of direct taxation which, if committed in Liechtenstein, would not be punishable under Liechtenstein law with a custodial penalty i.
Apart from this exception, if Liechtenstein does not accept future developments of the Schengen acquis, the Protocol will cease to operate.
Liechtenstein will become a member of the Mixed Committee and will have the right to express its opinion within the Mixed Committee and to preside it.
The putting into effect of the Schengen protocol is linked to the putting into effect of the Dublin/Eurodac protocol, as well as to the putting into effect of the respective agreements between Liechtenstein and Denmark and between Liechtenstein and Norway and Iceland on Schengen.
Specific provisions are laid down for Liechtenstein concerning the time period needed for the implementation of a development of the Schengen acquis, in case constitutional requirements need to be fulfilled by Liechtenstein (18 months) and the financial contribution that Liechtenstein has to pay for the administrative costs of the Council Working Groups, which meet in form of the Mixed Committee. The overall amount of these administrative costs are laid down in the Swiss agreement with an amount of € 8 100 000 and Liechtenstein will have to pay 0.071% of it. In addition, like Switzerland, Liechtenstein will have to contribute to the operational costs linked to the implementation of the Schengen acquis according to its GDP. Consequently, there are no financial implications for the EU resulting from Liechtenstein's association with the Schengen acquis.
Given the existing cooperation with Switzerland in the field of visa policy and security matters which includes the use of common databases, Liechtenstein may use the technical infrastructure of Switzerland for its access to the Schengen Information System and the Visa Information System.
III. CONCLUSIONS:
In the light of the above considerations, the Commission proposes that the Council:
- decides that the Protocol be signed on behalf of the European Union, on the one hand, and of the European Community, on the other hand, and authorises the President of the Council to appoint the person duly empowered to sign on behalf of the European Union, on the one hand, and of the European Community, on the other hand;
- approves, after consulting the European Parliament, the attached Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis on behalf of the European Union, on the one hand, and of the European Community, on the other hand.
COUNCIL DECISION
on the signature, on behalf of the European Union, and on the provisional application of certain provisions of the Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on European Union, and in particular Article 24 and Article 38 thereof,
Whereas:
Following the authorization given to the Presidency, assisted by the Commission, on 27 February 2006, negotiations with the Principality of Liechtenstein and the Swiss Confederation of a Protocol on the accession of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis have been finalised;
Subject to its conclusion at a later date, it is desirable to sign the Protocol that was initialled in Brussels on 21 June 2006;
The protocol caters for the provisional application of certain of its provisions. These provisions should be applied on a provisional basis pending the Protocol's entry into force.
As far as the development of the Schengen acquis is concerned, which falls under Title VI of the Treaty on European Union, it is appropriate to make Council Decision 1999/437/EC i on certain arrangements for the application of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the association of those two States with the implementation, application and development of the Schengen acquis applicable, mutatis mutandis, to the relations with Liechtenstein upon signature;
This Decision does not prejudice the position of the United Kingdom, under the Protocol integrating the Schengen acquis into the framework of the European Union annexed to the Treaty on European Union and to the Treaty establishing the European Community and Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis i;
This Decision does not prejudice the position of Ireland under the Protocol integrating the Schengen acquis into the framework of the European Union annexed to the Treaty on European Union and to the Treaty establishing the European Community and Council Decision 2002/192/EC of 28 February 2002 concerning Ireland’s request to take part in some of the provisions of the Schengen acquis i;
HAS DECIDED AS FOLLOWS:
Subject to its conclusion at a later date, the President of the Council is hereby authorised to designate the person empowered to sign, on behalf of the European Union, the Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis and related documents.
The texts of the Protocol and the related documents are attached to this Decision.
This decision applies to the fields covered by the provisions listed in Article 2 i and i of the Protocol and to their development to the extent that such provisions have a legal base within the Treaty on European Union, or to the extent that is has been determined under Decision 1999/436/EC i, that they have such a base.
The provisions of Article 1 to 4 of Decision 1999/437/EC shall apply, in the same way, to the association of Liechtenstein with the implementation, application and development of the Schengen acquis, which falls under Title VI of the Treaty on European Union .
In accordance with Article 9 i of the Protocol, Articles 1, 4 and 5 i (a) first sentence of this Protocol and the rights and obligations set out in Articles 3 i (2) i and i, 4, 5, and 6 of the Agreement on the Swiss association with the implementation, application and development of the Schengen acquis shall be applied on a provisional basis as of the time of signature of this Protocol, pending its entry into force.
Done at Brussels,
The President
Proposal for a
COUNCIL DECISION
on the signature, on behalf of the European Community, and on the provisional application of certain provisions of the Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Articles 62, 63 point 3 a) and b), 66 and 95 in conjunction with the second sentence of the first subparagraph of Article 300 i thereof,
Having regard to the proposal from the Commission i,
Whereas:
Following the authorization given to the Commission on 27 February 2006, negotiations with the Principality of Liechtenstein and the Swiss Confederation of a Protocol on the accession of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis have been finalised;
Subject to its conclusion at a later date, it is desirable to sign the Protocol that was initialled in Brussels on 21 June 2006;
The Protocol caters for the provisional application of certain of its provisions. These provisions should be applied on a provisional basis pending the Protocol's entry into force.
As far as the development of the Schengen acquis is concerned, which falls under the Treaty establishing the European Community, it is appropriate to make Council Decision 1999/437/EC i on certain arrangements for the application of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the association of those two States with the implementation, application and development of the Schengen acquis applicable, mutatis mutandis, to the relations with Liechtenstein upon signature;
This Decision does not prejudice the position of the United Kingdom, under the Protocol integrating the Schengen acquis into the framework of the European Union annexed to the Treaty on European Union and to the Treaty establishing the European Community and Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis i;
This Decision does not prejudice the position of Ireland under the Protocol integrating the Schengen acquis into the framework of the European Union annexed to the Treaty on European Union and to the Treaty establishing the European Community and Council Decision 2002/192/EC of 28 February 2002 concerning Ireland’s request to take part in some of the provisions of the Schengen acquis i;
This Decision shall not prejudice the position of the Denmark, under the Protocol on the position of Denmark annexed to the Treaty on European Union and the Treaty establishing the European Community.
HAS DECIDED AS FOLLOWS:
Subject to its conclusion at a later date, the President of the Council is hereby authorised to designate the person empowered to sign, on behalf of the European Community, the Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis and related documents.
The texts of the Protocol and the related documents are attached to this Decision.
This decision applies to the fields covered by the provisions listed in Article 2 i and i of the Protocol and to their development to the extent that such provisions have a legal base within the Treaty establishing the European Community, or to the extent that is has been determined under Decision 1999/436/EC i, that they have such a base.
The provisions of Article 1 to 4 of Decision 1999/437/EC shall apply, in the same way, to the association of Liechtenstein with the implementation, application and development of the Schengen acquis, which falls under the Treaty establishing the European Community.
In accordance with Article 9 i of the Protocol, Articles 1, 4 and 5 i (a) first sentence of this Protocol and the rights and obligations set out in Articles 3 i (2) i and i, 4, 5, and 6 of the Agreement on the Swiss association with the implementation, application and development of the Schengen acquis shall be applied on a provisional basis as of the time of signature of this Protocol, pending its entry into force.
Done at Brussels,
The President
Proposal for a
COUNCIL DECISION
on the conclusion on behalf of the European Union of the Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on European Union, and in particular Article 24 and Article 38 thereof,
Having regard to the recommendation of the Presidency,
Whereas:
Following the authorization given to the Presidency, assisted by the Commission, on 27 February 2006, negotiations with the Principality of Liechtenstein and the Swiss Confederation of a Protocol on the accession of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis have been finalised;
According to Council Decision …./…./CE of ……2006, and subject to its conclusion at a later date, the Protocol has been signed on behalf of the European Union on ….2006;
This Protocol should be approved;
As far as the development of the Schengen acquis is concerned, which falls under Title VI of the Treaty on European Union, it is appropriate to make Council Decision 1999/437/EC i on certain arrangements for the application of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the association of those two States with the implementation, application and development of the Schengen acquis applicable, mutatis mutandis, to the relations with Liechtenstein;
This Decision does not prejudice the position of the United Kingdom, under the Protocol integrating the Schengen acquis into the framework of the European Union annexed to the Treaty on European Union and to the Treaty establishing the European Community and Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis i;
This Decision does not prejudice the position of Ireland under the Protocol integrating the Schengen acquis into the framework of the European Union annexed to the Treaty on European Union and to the Treaty establishing the European Community and Council Decision 2002/192/EC of 28 February 2002 concerning Ireland’s request to take part in some of the provisions of the Schengen acquis i;
HAS DECIDED AS FOLLOWS:
The Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis and related documents are hereby approved on behalf of the European Union.
The texts of the Protocol and the related documents are attached to this Decision.
This decision applies to the fields covered by the provisions listed in Article 2 i and i of the Protocol and to their development to the extent that such provisions have a legal base within the Treaty on European Union, or to the extent that is has been determined under Decision 1999/436/EC i, that they have such a base.
The provisions of Council Decision 1999/437/EC shall apply, in the same way, to the association of Liechtenstein with the implementation, application and development of the Schengen acquis, which falls under Title VI of the Treaty on European Union .
The President of the Council is hereby authorised to designate the person empowered to deposit on behalf of the European Union the Instrument of approval provided for in Article 9 of the protocol, in order to express the consent of the European Union to be bound.
This Decision shall be published in the Official Journal of the European Union .
Done at Brussels,
The President