Schengen Acquis and Enlargement -proceedings of the Enlargement Working Group - Main contents

Document date	25-09-2001
Publication date	22-01-2013
Reference	12148/01
From	General Secretariat
To	Permanent Representatives Committee
External link	original PDF
Original document in PDF

COUNCIL OF PUBLIC Brussels, 25 September 2001

THE EUROPEAN UNION

12148/01

LIMITE

ELARG 214

NOTE

From : General Secretariat To : Permanent Representatives Committee

Subject : Schengen Acquis and Enlargement

-proceedings of the Enlargement Working Group

• 1. 

  The Enlargement Group examined the issue of the Schengen acquis in the context of

  Enlargement on 17, 23, 24, 25 July, and 11, 14, 18 and 25 September 2001 on the basis of an

  Information Note (doc. 10876/01) prepared by the Commission services. In its Note the

  Commission proposed an annotated List detailing those provisions of the Schengen acquis

  which should be applied upon accession (Category 1) and those provisions which should be

  implemented simultaneously with the lifting of internal border controls at the latest

  (Category 2).

• 2. 

  In this context it is recalled that the lifting of internal border controls requires a separate

  decision, in conformity with the relevant EU provisions. The candidate countries will need to

  satisfy as soon as possible all the pre-conditions for bringing the full Schengen acquis into

  force, and the EU is encouraging the candidate countries to start preparing early for full

  implementation. The EU recognises that those Schengen provisions intrinsically linked to the

  lifting of internal border controls cannot be implemented upon accession but only once

  internal border controls have been lifted.

12148/01 EW/DJ/mk 1 EN

• 3. 

  In the light of the above two-step process and in order to set out clearly the obligations

  required of the candidate countries already upon accession, the Group agreed that the List of

  provisions of the Schengen acquis, as amended by the Group (see Annex), should be sent by

  the Commission to the candidate countries. In doing so the Group took account of the need to

  find a balance, on grounds of necessity and feasibility, between those provisions to be applied

  upon accession and those which should be applied at the moment of the lifting of internal

  border controls. It should be recalled that the current enlargement process is the first after the

  integration of the Schengen acquis into the EU acquis.

• 4. 

  While Article 5 (1) c) has been included in Category 1, it should be understood that the

  requirement in sub-paragraph c) to produce, if necessary, documents justifying the purpose

  and conditions of the intended stay and sufficient means of subsistence, is included in

  Category 1 taking into account any necessary arrangements for local cross border traffic and

  insofar as possible given that the new Member State does not have access to the Schengen

  Information System.

• 5. 

  In the light of the above, the Permanent Representatives Committee is invited to confirm at its

  level the agreement on the text contained in the Annex to this Note, as well as to the

  procedure detailed in paragraph 3 above.

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ANNEX

List of Provisions of the Schengen acquis proposed by the Commission

as amended further to the proceedings of the Enlargement Group

Category 1: List of provisions of the Schengen acquis 1 which should be applied upon accession as

an integral part of the EU/EC acquis in the field of JHA, including the provisions relating to the high level of external border control.

CROSSING EXTERNAL BORDERS

Article 3 (crossing of external borders)

Article 5 (conditions for entry 2 , excluding para 1. d)

Article 6 (common standards for external border control)

Article 7 (co-operation and information exchange connected to external border control)

The EU Common Positions define two essential elements of high level of external border control:

• 1) 

  all persons crossing the external borders are checked in a systematic way and 2) effective border surveillance is ensured between authorised border crossing points. However, there is no fixed list defining the practical measures relating to “a high level of external border control” to be achieved at the moment of the EU accession.

The Union has practically no other acquis concerning external border control other than the

Schengen acquis. Therefore the guidance for interpreting the notion “a high level of external border control” has to be sought from there, while appreciating that it is partly a political notion.

The basic requirements for effective external border control can be found in Chapter 2 of Title II of

the Schengen Convention and the so-called Common Manual on external borders. 3 Besides these

specific rules it is a task of the Schengen Evaluation working group to specify certain criteria and requirements, including the requirements related to external border control, to be fulfilled before the internal border controls can be lifted. These criteria and requirements would not be directly applicable to the current enlargement process as they are formulated on a case-by-case basis, taking into account the specific characteristics of the country (including geographical situation) to be evaluated. In addition the Schengen Evaluation Working Group has a role in drawing up recommendations and best practices.

1 To the extent that the provisions do not relate to the lifting of internal border controls or the use of the

SIS. This list applies also to the secondary rules adopted on the basis of the Articles listed including the decisions of the Executive Committee, together with standard common documents such as the Common Manual, the Handbook on Cross-Border Police Cooperation and the Common Consular Instructions insofar as they relate to the Articles in question.

2 It is understood that until the lifting of internal border controls, the new Member states remain free to

fix the amount of sufficient means of subsistence in accordance with their national cost of living.

3 Some parts of the Common Manual still remain confidential, see Council Decision 2000/751/EC.

EN

Ideally, the external border control shall be conducted by professionals, trained for that purpose, with the help of equipment and sufficient facilities and in cooperation with the colleagues on the other side of the border. These characteristics will guarantee an effective border surveillance as well as an effective and smooth border crossing where the crossing is not subject to long queues,

arbitrary treatment and corruption. 4

It is understood that full access to the Schengen Information System prior to the lifting of internal border controls is not possible for the new Member states. Therefore the Member states will implement Article 5 (1) e) on the basis of international agreements and other arrangements on the exchange of information to which they are parties and with due regard to the provisions of the EU acquis, in particular the provisions regarding Europol and those concerning police cooperation (Articles 39 and 46 of the Schengen Convention). Furthermore the exchange of information under this provision will be in compliance with the relevant acquis provisions on data protection.

Upon accession, a sufficiently high level of border control will also be required on the temporary

external borders 5 while appreciating that special arrangements at these borders are justified, to

tighten the cooperation between the future Schengen partners, in order to allow for a smooth transition when internal border controls will be abolished, and to avoid unnecessary investments. The border control system should be based on functioning cooperation with the authorities of the other side of the border. Practical cooperation models across the temporary external border should be accepted: for instance, everyone crossing the border is checked but the control authorities on each side of the border would cooperate so that the administrative and logistical burden would not lie with one country only. Shared infrastructure and removable and/or shared equipment could be considered, wherever possible, as well as joint patrols.

Such mechanisms, infrastructure and equipment offer a good basis for effective cooperation between relevant authorities working at the border even after the candidate countries in question

have all acceded to the Union, especially to implement cross-border cooperation. 6 In addition, for

the “user’s” point of view, these arrangements would facilitate the movement of people and goods as they would render the control procedures more simple and smooth.

Concerning the international ports and airports, there is no need to separate extra- and intra

Schengen passenger flows before the internal border controls are lifted. However, this question should be addressed in the Schengen action plan, in order to give a clear picture of the plans, including the financial implications and the timetable.

4 In addition, the JHA Council has accepted a “Guide for effective practices for controls of persons at

external frontiers” (26 – 27 May 1997 (2008e), pt. A 17). This guide was prepared for the candidate countries who wished to improve controls at their external borders. The importance of this guide has somewhat diminished because the candidate countries now have the Common Manual at their disposal. In any case, these documents facilitate the effective application of legislation through appropriate administrative structures, as required in the EU Common Positions.

5 National borders between the new Member States and the remaining candidate countries. In principle,

the same applies to national borders between the new Member States and between the new Member States and the current Schengen states.

6 It should be noted that the control arrangements at the temporary external borders could remain useful

after the lifting of internal border controls to apply Article 2(2) of the Schengen Convention.

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Finally, it should be emphasised that the current Schengen States will be responsible for the control of Schengen external borders until the internal border controls will be lifted vis-à-vis new Member States. However, after accession, the nationals of the new Member States would not any more be third country nationals who will have to fulfil all entry conditions required. For nationals of the EU Member States, a mere presentation or production of a travel document is sufficient.

With a view to the moment when internal border controls are lifted with a particular new Member State, and the full Schengen acquis enters into force, that new Member State will become fully responsible for the protection of its external Schengen borders without exception according to the Schengen acquis including those borders with those Member States or candidate countries with which the internal borders have not yet been lifted.

VISAS

Article 13 (the quality of travel document to which a visa may be affixed)

Article 13 is related to the realising the requirement of a high level of border control. This article is a clear example of a provision which not only supports the application of Chapter 2 of Title II of the Schengen Convention but also the application of the EU regulations concerning the uniform format for visa and the common visa lists, which are to be applied upon accession.

ACCOMPANYING MEASURES

Article 26 – 27 (accompanying measures)

Articles 26 – 27 contain measures intended to combat illegal immigration and can as such be applied independently from the lifting of internal border controls. The Council has adopted in June 2001 a directive supplementing to provisions of Article 26.

POLICE COOPERATION

Article 39 (mutual assistance between police authorities for preventing and detecting criminal

offences)

Article 44 (co-operation on telecommunications)

Article 45 (hotel registration forms for other EU nationals and non-EU nationals)

Article 46 (unsolicited communication of information and cooperation in matters relating to public

policy and security)

Article 47 (bilateral agreements on exchange of liaison officers)

The application of Article 39 and some other articles relating to police cooperation is possible in the situation where the internal border controls have not been lifted. The possibility of bilateral agreements or agreements between neighbouring countries is foreseen at Article 39 (4) and (5). Even if Article 44 refers to transmission of information for the purposes of cross-border surveillance and hot pursuit, the candidate countries should prepare for future cooperation and develop possibilities offered by Article 44, e.g. voluntary agreements between Member States.

EN

The cooperation possibilities provided for in Article 47 should be looked into. This article specifically concerns secondments, for specified or unspecified periods, of liaison officers to provide advice and assistance aimed at furthering police co-operation. Such agreements with candidate countries are already possible (Art. 47.4).

MUTUAL COOPERATION IN CRIMINAL MATTERS

Articles 48 – 53 (mutual assistance in criminal matters)

Articles 54 – 58 (ne bis in idem)

Articles 59, 61 – 63 and 65 – 66 (extradition)

Articles 67 – 68 (transfer of enforcement of criminal judgements)

The purpose of the above articles is to complement or specify the provisions of existing international agreements in these fields. These agreements are mentioned in the articles. In addition, there are several third pillar agreements between the Member States: Convention on Simplified Extradition Procedures (1995), Convention relating to Extradition (1996) and Convention on Mutual Assistance in Criminal Matters (2000). The Member State agreements replace some articles

of the Schengen Convention. 7 All international agreements mentioned in the above articles and the

Member State agreements have already been deemed agreements to which the candidate countries must accede upon accession.

NARCOTIC DRUGS

Article 71 (fight against illegal import of narcotics drugs and psychotropic substances)

Article 72 (seizure and confiscation of the proceeds of illicit trafficking in narcotics drugs and

psychotropic substances)

Article 73 (controlled delivery for narcotics drugs and psychotropic substances) 8

Article 75 (transport of narcotic drugs and psychotropic substances for medical treatment)

Article 76 (measures for the control of narcotic drugs and psychotropic substances)

The articles concerning narcotic drugs mainly confirm what has been prescribed in the relevant UN Conventions. The candidate countries already have an obligation to accede to these Conventions.

7 The discussion to what extent the Member State agreements repeal provisions of the Schengen

Convention concerning extradition is still going on in the Council. Upon the entry into force of the Convention of Mutual Legal Assistance in Criminal Matters, the Convention will replace Articles 49(a), 52 and 53 of the Schengen Convention.

8 Upon the entry into force of the Convention of Mutual Legal Assistance in Criminal Matters, the

Convention will replace Article 73 of the Schengen Convention. The Convention concerning mutual legal assistance has not yet entered into force.

EN

FIREARMS AND AMMUNITION

Article 82 (firearms)

Article 91 (exchange of information on firearms)

Most of the provisions concerning firearms have been superseded by Community legislation. See Council Directive 91/477/EEC i of 18 June 1991 on control of the acquisition and possession of weapons (OJ L 256, 13.9.1991, p. 51) and Commission Recommendation 93/216/EEC of 25 February 1993 on the European firearms pass (OJ L 93, 17.4.1993, p. 39) as modified by Commission Recommendation 96/129/EC of 12 January 1996 (OJ L 30, 8.2.1996, p. 47).

PROTECTION OF PERSONAL DATA

Articles 126 – 130 (protection of personal data)

Candidate countries should adopt the necessary national provisions in order to achieve a level of protection of personal data at least equal to that resulting from the Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data of 28 January 1981. Candidate countries should take into account Recommendation N. R (87) 15 of 17 September 1987 of the Committee of Ministers of the Council of Europe regulating the use of personal data in the police sector. See also Directive 95/46/EC i, particularly as for Article 127 of the Schengen Convention. Candidate countries should also set up an independent supervisory authority for personal data.

EN

Category 2: List of other provisions of the Schengen acquis 9 which are directly connected to the

abolition of internal border controls and should be implemented simultaneously with lifting of

internal border controls at the latest. 10

The implementation of these provisions is consequently not required from the candidate countries at the time of their accession to the EU. Nevertheless, an early preparation for the implementation of these provisions is of utmost importance. The candidate countries shall deal with these provisions and the implementation timetable in their Schengen action plans.

CROSSING INTERNAL BORDERS

Article 2 (abolition of the internal border controls)

CROSSING EXTERNAL BORDERS

Article 5, paragraph 1 d) (conditions for entry)

VISAS

Articles 10 - 12, 14 – 18 (common visa, long term visa)

The common visa policy is one of the key elements supporting the high level of external border controls. However, most parts of the Schengen acquis concerning visa policy are so closely linked to the lifting of internal border controls that these provisions cannot be applied or it is not sensible to apply them before that time. For instance, the new Member States will not be issuing Schengen visas valid for travel in all Schengen States before the internal border controls are lifted. Therefore, they would not be implementing the EU provisions on the Schengen visa fees either. The new Member states could still be determining their own visa fees for some years. Nonetheless, by way of preparation for the lifting of internal border controls, the new Member States are encouraged to gradually bring their national visa fees into line with the EU acquis.

Concerning visa policy in general, it should be stressed first of all that although Schengen related

instruments, the EU instruments concerning the uniform format for visa and the common visa list 11 ,

are EU acquis that has to be accepted and implemented upon accession.

Although the new Member States would not be delivering Schengen visas before the internal border controls are lifted, they will have to ensure proper functioning of the visa issuing procedures as well as administrative management and organisation as from EU accession. Guidance for applying the visa procedures should be sought from the Common Consular Instructions and other secondary

Schengen legislation 12 .

9 This list applies also to the secondary rules adopted on the basis of the Articles listed.

10 In order to verify this precondition, it is possible that the provisions concerning the SIS are put into

effect some time before the lifting of internal border controls – as happened in the case of the Nordic countries.

11 Reg. (EC) 1683/95 and Reg. (EC) 539/2001.

12 In particular, as emphasised in the EU Common Positions, according to the Schengen rules, visas may

only be issued at the border in specific and duly justified cases (eg for humanitarian reasons), see Part II, point 5 of the Common Manual on external borders and the decision of the Executive Committee on the issue of uniform visas at borders SCH/Com-ex (94) 2 of 26 April 1994.

EN

Article 17 (3) e) is included in this Category without prejudice to the obligation on the new Member state as of accession to respect the provisions of Article 5 (1) e) when granting entry to aliens.

CONDITIONS GOVERNING THE MOVEMENT OF ALIENS

Articles 19 – 25 (movement of third country nationals) 13

POLICE COOPERATION

Articles 40 – 43 (cross-border forms of police co-operation)

Although the provisions concerning cross-border cooperation would be applicable after the lifting of internal border controls only, bilateral arrangements could be developed even before.

In Common Positions concerning the Luxembourg countries, the EU underlined that the candidate countries should, for each Member State with which they have common border, make a declaration in accordance with paragraph 9 of Article 41 upon signing the EU accession Treaty. However, such declarations would probably be quite general or vague by nature, and would have to be replaced later by specific declarations. Firstly, the implementation of Article 41 would still be quite far away. Secondly, the candidate countries could not yet specify all the cooperation partners, because only the existing Schengen States are known at the moment.

SCHENGEN INFORMATION SYSTEM

Article 64 (SIS alert as a request for arrest)

Articles 92 –101 (acquis regulating the SIS)

The Schengen Information System (SIS) is regarded as one of the preconditions for the lifting of internal border controls. The system is one of the key compensatory measures to maintain public policy and public security, including national security, and to apply the provisions related to movement of persons within the EU/Schengen area. The SIS is not only used at border checks but also for internal police activities. The second generation SIS will probably not be operational before the end of 2005. Discussions are still on going as regards its future technical specifications and new functional requirements.

It is useful for the candidate countries to create national databases for the purposes of Article 95 and 97 – 100 (police registers) and Article 96 (entry refused) so that they can easily be linked to an integrated information system and eventually connected to the N.SIS after accession. It is also essential to plan in advance the setting up of the SIRENE bureau.

13 The Commission has adopted on 10 July 2001 a proposal for a Council Directive relating to the

conditions in which third-country nationals shall have the freedom to travel in the territory of the Member States for periods not exceeding three months, introducing a specific travel authorisation and determining the conditions of entry and movement for periods not exceeding six months (COM (2001) 388 final i) which would replace Articles 18 – 23 and 25.

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Articles 102 – 118 (protection of personal data in the SIS)

The purpose of these articles is to ensure the security of data in the SIS. Upon accession candidate countries will have already adopted the necessary national provisions in order to achieve a level of protection of personal data required elsewhere in the acquis.

Article 119 (distribution of costs for SIS)

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