COMMISSION OPINION on the request by Ireland to take part in some of the provisions of the Schengen acquis

(presented by the Commission)

I. Introduction

1. Under the terms of the Protocol incorporating the Schengen acquis into the framework of the European Union, annexed to the Treaty of Amsterdam ("the Schengen Protocol"), the signatories to the Schengen agreements were authorised to establish closer cooperation among themselves within the scope of the agreements and related provisions. That cooperation is conducted within the institutional and legal framework of the European Union and with respect for the relevant provisions of the Treaty on European Union and the Treaty establishing the European Community.

In accordance with the first paragraph of Article 4 of the Schengen Protocol, the two Member States which are not bound by the Schengen acquis may at any time request to take part in some or all of the provisions of this acquis.

On 29 May 2000 the Council adopted a Decision agreeing to the request of the United Kingdom to take part in some of the provisions of the Schengen acquis (Decision 2000/365/EC) [1].

[1] OJ L 131, 1.6.2000.

In a letter dated 16 June 2000 addressed to the Presidency of the Council, the Government of Ireland submitted a request to take part in the provisions of the Schengen acquis relating to police and judicial cooperation in criminal matters, drugs, and the Schengen Information System.

The request relates to substantially the same provisions as those in which the United Kingdom was authorised to take part.

2. In accordance with the second paragraph of Article 4 of the Schengen Protocol, it is for the Council to decide on the request with the unanimity of the members representing the signatories to the Schengen agreements and the representative of the Government of the Member State concerned.

In Declaration No 45 annexed to the Treaty of Amsterdam, the High Contracting Parties invited the Council to seek the opinion of the Commission before it decides on a request under Article 4 of the Schengen Protocol.

On 5 July 2000 Coreper formally called on the Commission to deliver its opinion.

This opinion is the Commission's response.

II. General

3. In its opinion on the request by the United Kingdom the Commission set out the "guiding principles it proposes to follow in examining requests pursuant to Article 4 of the Schengen Protocol" [2] (annex); it then applied them to the request by the United Kingdom.

[2] SEC(1999)1198 final.

The Council Decision on the request by the United Kingdom very broadly reflects these guiding principles. They accordingly remain valid.

This opinion is based on these guiding principles, as well as on the content of the Council Decision on the request by the United Kingdom.

III. Application of the guiding principles to the request by Ireland to participate in some of the provisions of the Schengen acquis

4. In application of these guiding principles and in the light of the Council Decision on the request by the United Kingdom, the Commission:

* takes note of Ireland's request to participate in some of the provisions of the Schengen acquis, whilst affirming its belief that this cooperation should in due course be extended to the aspects of freedom of movement covered by the Schengen acquis, thus opening the way to Ireland's full participation in that area;

* considers that such a request is an important stage in the aim of developing an area of freedom, security and justice.

The Commission consequently recommends that the Council:

* view Ireland's request favourably;

* adopt a favourable decision in respect of all the components referred to in the request by Ireland; in its opinion on the request by the United Kingdom the Commission stressed that participation in only part of the Schengen acquis should not affect the proper working of the whole between the states which are signatory to the Schengen agreements; it added that participation should extend to all those components that may be applied in a coherent manner without reference to other aspects of the Schengen acquis not covered by the decision; given that the list of components of the Schengen acquis to which Ireland's request relates corresponds to the list in Decision 2000/365/EC in which the United Kingdom is authorised to participate, the Commission considers that these two criteria are satisfied;

* approve a decision taking over, mutatis mutandis, all the relevant provisions of Decision 2000/365/EC, in particular those relating to competent national authorities for extradition purposes (Article 3), participation in the Joint Supervisory Authority (Article 4), the procedure for implementing the Schengen acquis (Article 6(1), (2) and (4)), Financial Regulations (Article 7(1)), all the costs involved in the technical achievement of its partial participation in the operation of the SIS to be borne by Ireland (Article 7(2)), and the presumption that Ireland has irrevocably notified the President of the Council that it wishes to take part in all proposals and initiatives which build upon the Schengen acquis for the purposes of the Decision (Article 8(2)).

5. The Commission further wishes to make the following points:

- The Commission has taken note of the fact that, contrary to the United Kingdom's request and Decision 2000/365/EC, Ireland's request does not relate to the Schengen provision relating to cross-border surveillance (Article 40 of the Schengen Convention and subsequent related articles). It must be pointed out that the relevant Schengen provisions in which the United Kingdom and Ireland are to be authorised to participate should also apply to relations between them. The Commission accepts that there are special considerations which currently warrant exclusion of (the application of) cross-border surveillance from their relations.

- Like Decision 2000/365/EC, the Council Decision on Ireland's request to participate in some of the provisions of the Schengen acquis should make a distinction between the agreement as to the principle of participation and the actual implementation of the relevant provisions. The Commission considers that, when the time comes for the Council, acting under Article 6(1) of Decision 2000/365/EC and/or the corresponding Article of the Decision now to be taken on Ireland's request, to set dates for the actual implementation of the relevant provisions of the Schengen acquis, consideration should be given to the question whether a component of the Schengen acquis should be implemented at the same time by the United Kingdom and Ireland, given the "Common Travel Area" linking them, in order to secure regional coherence in the development of the area of freedom, security and justice.

6. This opinion is addressed to the Council for its decision on the request by Ireland pursuant to the second paragraph of Article 4 of the Schengen Protocol, and forwarded to the European Parliament for information.

ANNEX

The Commission's guiding principles vis-à-vis requests pursuant to Article 4 of the Schengen protocol

[extract from the Commission Opinion on the request by the United Kingdom to take part in certain provisions of the Schengen acquis (SEC(1999) 1198 final)]

"5. Such requests must first of all be evaluated in the light of the general objective of maintaining and developing the European Union as an area of freedom, security and justice while respecting a fair balance between these three components [3]. A favourable decision on requests to participate in some or all the Schengen acquis does not diminish the Community's commitment to provide itself with the means to achieve this aim within five years of the Treaty of Amsterdam coming into force.

[3] See in this context the Communication of the Commission "Towards an area of freedom, security and justice", COM(1998)459 final, p. 10.

6. The Schengen Protocol integrated the Schengen acquis in the framework of the European Union: save certain adaptations to the Union's institutional framework, this integration has not given rise to any renegotiation of the acquis as it was designed in the previous intergovernmental framework. The Commission's view is that there are no circumstances under which a request to participate pursuant to Article 4 could be the occasion for such a renegotiation.

7. Having regard to the Protocol on the application of certain aspects of Article 7a of the Treaty establishing the European Community to the United Kingdom and to Ireland, annexed to the European Union Treaty and the Treaty establishing the European Community, Article 4 of the Schengen Protocol leaves Ireland and the United Kingdom the possibility of requesting to participate fully or in part in the provisions of the Schengen acquis. The special character of this situation must not be overlooked: by virtue of Article 8 of the same Protocol, the Schengen acquis must be accepted in full by any country applying for membership of the Union.

8. When a request to participate in the Schengen acquis, presented in accordance with Article 4 of the Schengen Protocol, relates not to the whole of the acquis but only to certain of its provisions, this incomplete participation should not affect the proper working of cooperation between the signatory states of the Schengen agreements. Such a request must consequently relate to a coherent set of the acquis' components capable of functioning without any technical or legal links to other aspects of the agreements not covered by the request.

9. Finally, application of Article 4 of the Schengen Protocol should also pay due respect to the mechanisms which have hitherto contributed to building the mutual confidence which is essential between partners in such cooperation. In practice, it would be desirable if the distinction could be maintained between, on the one hand, the decision in principle by which the Council accepted a request to participate in all components and, on the other, the actual implementation of such a decision. The latter could be the subject of a phased approach, taking account in particular of the transitional periods which [Ireland] might require to make the necessary legislative and technical changes.

10. As regards the question of the territorial application for participation in certain parts of the Schengen acquis, account must be taken of Article 299 of the Treaty establishing the European Community, the possibility of a derogation from that Article, should it be justified by any objective considerations, the Protocols annexed to the Treaty of Amsterdam, and in particular the Protocol on the application of certain aspects of Article 7a of the Treaty establishing the European Community to the United Kingdom and to Ireland, and the field of territorial application determined for similar instruments arising from Title VI of the Treaty on European Union."