Proposal for a COUNCIL DECISION on the signature, on behalf of the European Union, of the Agreement between the European Union, the European Community and the Swiss Confederation, concerning the latter's association with the implementation, application and development of the Schengen Acquis

(presented by the Commission)

EXPLANATORY MEMORANDUM

Negotiations between the European Community and the Swiss Confederation on Seven Agreements were concluded in June 1999. All those Agreements entered simultaneously into force on 1 June 2002. Attached to the agreements, the Swiss Confederation made a declaration on migration and asylum policy declaring its intention to participate in the EU system for coordinating asylum policies and proposing that negotiations be entered into for the conclusion of a convention parallel to the Dublin Convention.

Following the authorization given to the Commission on 17 June 2002, negotiations were held with the Swiss Confederation on its association with the implementation, application and development of the Schengen Acquis as well as with the legislation establishing Eurodac [1] and the legislation on the State responsible for examining requests for asylum (which has been adopted subsequently and which will be referred to as "Dublin" Regulation [2]). Consequently, the texts of two separate agreements have been agreed upon.

[1] Council Regulation N° 2725/2000/EC of 11.12.2000 concerning the establishment of "Eurodac" for the comparison of fingerprints for the effective application of the Dublin Convention (OJ L 316 of 15.12.2000, p. 1)

[2] Council Regulation N° 343/2003/EC of 18.2.2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (OJ L 50 of 25.2.2003, p. 1)

According to the negotiating directives, the agreements follow the model of the agreements with Norway and Island - concerning the latter's association with the implementation, application and development of the Schengen acquis [3] and concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or Iceland or Norway [4] - adapted to the specific constitutional requirements of Switzerland.

[3] OJ L 176 of 10.7.1999, p. 36.

[4] OJ L 93 of 3.4.2001, p. 40.

In addition, the negotiating directives requested that Switzerland must accept the Schengen acquis and its development as well as the Dublin/Eurodac acquis and its development without exception and derogation. Furthermore the directives demanded a clear link between the implementation and the termination of the two Agreements. The negotiating directives also requested that Switzerland provide an annual contribution of to the administrative cost and operational costs of Schengen and of Dublin/Eurodac.

The Commission considers that the texts are in accordance with the negotiating directives adopted by the Council on 17 June 2002. The sole exception to the principle of full acceptance of the current and future Schengen acquis is the derogation granted to Switzerland in respect ofg the acceptance of future acquis related to requests for search and seizure in respect of offences in the field of direct taxation, which if committed in Switzerland, would not be punishable under Swiss law with a custodial penalty. This derogation was necessary in order to conclude an Agreement with Switzerland in the field of savings taxation, which in turn was necessary for the entry into force of Council directive 2003/48/EC of 3.6.2000 on taxation of savings income in the form of interest payments [5]. COREPER approved this derogation on 17.5.2004 as part of an overall compromise with Switzerland in a wide range of sectors, which was agreed upon in the EU/Switzerland summit on 19.5.2004 [6].

[5] O J L 157 of 26.6.2003, p. 38.

[6] Council document 9544/04

As far as indirect taxation is concerned, no derogation has been granted as regards both current and future acquis. Switzerland will grant full judicial cooperation under Article 51 of the Schengen Convention concerning cases of indirect tax evasion. [7] Indirect tax evasion is prosecuted in Switzerland by administrative authorities where the decision may give rise to proceedings before a court having jurisdiction in particular in criminal matters. Therefore, Article 51 a) second alternative of the Schengen Convention is applicable.

[7] cf non-paper of the services of the Commission on the Schengen acquis concerning letters rogatory for search and seizure, MD 59/03 (EFTA group)

Since the two agreements on Schengen and on Dublin/Eurodac are linked, both agreements should be signed simultaneously.

The following points are highlighted in order to show the differences with or adaptations to the corresponding Agreements concluded with Norway and Iceland:

Schengen:

As the Commission has clearly indicated in its declaration made at the time of the adoption of the directives for negotiation for the agreement on the Schengen acquis, it is regrettable that these directives foresaw a single agreement, including elements from the first as well as from the third pillar. These elements from different pillars are of a fundamentally different nature (the elements from the first pillar are of a Community law nature, including supremacy and possible direct effect, whereas the elements from the third pillar are not), they are subject to different procedures with respect to approval and conclusion (e.g. the third pillar elements are not subject to an opinion of Parliament) and are subject to the ECJ's jurisdiction to different degrees. In order to take account of these differences, the Commission proposes to adopt the Agreement on the Schengen acquis, by two separate acts, one based on the Community Treaty and the other on the Union Treaty, each decision indicating by a reference to Council Decision 1999/436/EC [8] which parts of the Schengen acquis, covered by the Agreement, fall within the Community Treaty and which within the Treaty on European Union. This will particularly assist the Court as to the extent of its jurisdiction.

[8] OJ L 176 of 10.7.1999, p. 17.

Agreement:

Article 7 (2) b:

Switzerland is granted a two year period for acceptance and implementation of future acquis into its internal legal order in case a referendum is requested. If possible, Switzerland has to apply the development of the acquis on a provisional basis. If Switzerland cannot apply the content of the development on a provisional basis, EU and EC may take proportional and necessary measures against Switzerland in order to ensure the efficient functioning of the Schengen cooperation.

This safeguard clause makes it possible for EU and EC to accept an eventual two year delay for the implementation of future acquis by Switzerland. In this context, Switzerland explained that only 5 % of the measures developing the Schengen acquis and adopted between the integration of the Schengen acquis in the framework of the European Union in 1999 and today could have lead to an eventual referendum.

Article 7 (5):

According to the negotiating directives, Switzerland accepts the Schengen acquis and its development in its entirety. The only exception to this general principle is laid down in Article 7 (5) on the future development of the Schengen acquis and concerns a possible future act or measure relating to a request or order for search and seizure made for the purposes of investigating or prosecuting offences in the field of direct taxation, which, if committed in Switzerland, would not be punishable under Swiss law with a custodial penalty.

Article 11:

The calculation of the percentage determining the annual contribution of Switzerland to the administrative costs is based on the relevant Norwegian and Icelandic contributions, in relation to the GDP of these three countries.

Article 13:

According to Denmark's special position with regard to acts adopted pursuant to Title IV of the Treaty establishing the European Community, Denmark needs to conclude a separate Agreement with Switzerland in order to create rights and obligations with Switzerland in relation to the Schengen acquis adopted pursuant to Title IV.

In addition, Norway and Iceland also need to conclude an agreement with Switzerland in order to create rights and obligations between all associated partners applying the Schengen acquis.

Article 15:

Paragraph 1 lays down the principle that the Schengen acquis can only be implemented by Switzerland after the Council decides that all preconditions for that implementation have been fulfilled by Switzerland and that controls at its external borders are effective.

In addition, paragraph 1 provides for the different scenarios for this decision taking according to the protocols annexed to the Amsterdam Treaty and to the Act of Accession of the ten new Member States.

Paragraph 3 and 4 implement the demand of the negotiating directives to provide for a link between the implementation and termination of the Schengen agreement and the implementation and termination of the agreement on the criteria and mechanism for establishing the State responsible for examining a request for asylum.

Article 16:

Article 16 allows Liechtenstein to join the present Agreement. This provision avoids the conclusion of a separate Agreement with Liechtenstein and thus the creation of a third Mixed Committee once Liechtenstein would be associated with the Schengen acquis. Liechtenstein can take part in the present organisational structure.

Annexes A and B list the Schengen acquis and its development and will be updated until the date of signature.

Final Act:

Declaration 2 makes clear that EU/EC does not exercise external competences on behalf of Switzerland. When negotiations with third countries have an impact on the Schengen acquis (e.g. negotiations on visa waiver agreements) EU/EC will invite third countries to conclude similar agreements with the three associated countries. The declaration can only concern Switzerland, but the same commitment is valid for Norway and Iceland, although it has not been explicitly mentioned in the final Act to the Agreement with these two countries.

Declaration 3 is based on the special provision granted to Luxembourg and is a result of the compromise reached with Switzerland concerning its derogation mentioned in Article 7 (5) of the Agreement.

In declaration 5 Switzerland commits itself to speed up as much as possible the different procedures where a referendum is asked.

Declaration 6 is a consequence of accepting the Schengen acquis without exception and derogation.

Declaration 8 only serves information purposes.

Exchange of letters on Switzerland's participation in Committees assisting the Commission in the exercise of its executive powers:

Like Norway and Iceland, Switzerland will also participate as observer in the work of the Committees assisting the Commission in the exercise of its executive powers. In declaration 2 annexed to the Agreement with Norway and Iceland, the European Union stated that it considers Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data [9] to be an integral part of the Schengen acquis. It has not been included in the list of the Schengen acquis attached to the Agreement with Iceland and Norway as the directive already formed part of the EEA acquis and therefore was applied already by Iceland and Norway.

[9] OJ L 281, 23.11.1995, p. 31

The participation of these two countries in the work of Committees established in the EEA is laid down in Article 100 of the EEA Agreement, which is different to the participation in "Schengen Committees": in Committees dealing with matters which have an impact on the EEA acquis, representatives of EEA countries are not present. Their participation is ensured as wide as possible in the preparatory stage of draft measures. Switzerland is not member of the EEA, but it is excluded that via an association with the Schengen acquis, the rights of Switzerland would go beyond the rights granted to Norway and Iceland which have chosen for an even deeper cooperation with the EU in form of the EEA Agreement.

Consequently, in order to establish equal rights and obligations, Switzerland's position must be the same as that for Iceland and Norway. Since the data protection directive covers areas going beyond the Schengen acquis, information given to Switzerland must be limited to points which are specifically relevant for the application of the Schengen acquis. In addition, Switzerland, like Iceland and Norway, can designate a representative to participate as observer in the "Working Party on the Protection of Individuals with regard to the Processing of Personal Data" (Article 29) concerning those points which are specifically relevant for Schengen.

Common declaration on joint meetings of the Mixed Committees

The Agreement with Iceland and Norway as well as the Agreement with Switzerland establish a Mixed Committee in order to address all Council items relevant for the implementation, application and development of the Schengen acquis. All parties agree that the meetings of these two Mixed Committees shall be held jointly.

In order to maintain the current structure that for the first period of six months of the year the representative of the European Union and for the second period of six months, an associated country presides the Mixed Committee at the level of senior officials and ministers, all associated countries expressed their wish to cede, as necessary, the exercise of their presidencies and rotate it among them in alphabetical order of name.

Dublin/Eurodac:

Agreement:

Article 4 (3) (corresponds on substance to Article 7 (2) b of the Schengen agreement):

Switzerland is granted a two years period for acceptance and implementation of future acquis into its internal legal order in case a referendum is requested. If possible, Switzerland has to apply the development of the acquis on a provisional basis. If Switzerland cannot apply the content of the development on a provisional basis, the EC may take proportional and necessary measures against Switzerland in order to ensure the efficient functioning of the Dublin/Eurodac cooperation.

Article 8:

The calculation of the contribution of Switzerland to the costs of the central unit of Eurodac is based on the relevant Norwegian and Icelandic contributions, in relation to the GDP of these three countries.

Article 11:

According to Denmark's special position with regard to acts adopted pursuant to Title IV of the Treaty establishing the European Community, Denmark needs to be associated via a protocol to the present Agreement in order to create rights and obligations between Denmark and Switzerland in relation to the provisions of Dublin/Eurodac.

In addition, Norway and Iceland need to conclude an agreement with Switzerland in order to create rights and obligations between all associated partners applying the Dublin/Eurodac acquis.

Article 12:

According to this article, some parts of the Agreement, e.g. the creation of the Joint Committee, are provisionally applied upon signature. This provisional application (and a similar provisional application is provided for in Schengen) will allow Switzerland to prepare itself for the technical implementation of the Agreement during the period of ratification.

Article 14:

This article creates the necessary link between the implementation and termination of the agreement on Dublin/Eurodac and the implementation and termination of the Schengen agreement.

Article 15:

As for Schengen, this provision allows Liechtenstein to join the agreement between the EC and Switzerland on Dublin/Eurodac.

Final Act:

Declaration 2 stipulates that Switzerland's position concerning its participation in the data protection directive, laid down in the exchange of letters on Switzerland's participation in Committees assisting the Commission in the exercise of its executive powers annexed to the Schengen Agreement, applies mutatis mutandis for items which specifically concern the application of the Dublin regulation or Eurodac.

Declaration 3 corresponds to the similar declaration made by Switzerland in relation to the Schengen Agreement (declaration 5) by which it commits itself to speed up as much as possible the different procedures in case a referendum is asked.

Declaration 4 only serves information purposes. It is nevertheless worth mentioning that for Dublin/Eurodac the participation in Committees assisting the commission in its exercise of executive powers - in accordance with the Iceland and Norway model for their participation in Dublin/Eurodac - follows the same structure as that foreseen in article 100 of the EEA Agreement (see Article 2 (6) of the Draft Agreement).

Common declaration on joint meetings of the Joint Committees

The Agreement with Iceland and Norway as well as the Agreement with Switzerland establish each a Joint Committee in order to address all items relevant for the implementation, application and development of the Dublin/Eurodac acquis. All parties agree that the meetings of these two Joint Committees shall be held jointly.

In order to prevail the current structure that for the first period of six months of the year the representative of the European Union and for the second period of six months, an associated country presides the Joint Committee, all associated countries expressed their wish to cede, as necessary, the exercise of their presidencies and rotate it among them in alphabetical order of name.

Declarations of the heads of delegations (agreed minutes):

For the sake of completeness, attention is drawn to the following declaration of the heads of delegations in the context of the Schengen Agreement, which, however, do not form part of the Agreement:

Declaration 1 lays down that the General Secretariat of the Council and the Swiss mission are in regular contacts in order to allow Switzerland to proceed as fast as possible with its internal procedures to fulfil its constitutional requirements (e.g. if a Member State lifted an parliamentary reservation etc).

Declaration 2 states that Council Directive 91/477/EEC of 18 June 1991 on control of the acquisition and possession of weapons does not apply to the acquisition or possession of weapons and ammunition by - amongst others - the armed forces. Switzerland requested the Commission's services to verify that its current Swiss system on the loan issuance of military weapons in the framework of young marksmen preservice course, the issuance of military weapons during the military service and the issuance of the service weapon - transformed into a semi-automatic weapon - after the military service, is covered by the above mentioned exemption from the application of the directive.

Declaration 3 reflects the interest to develop, as far as possible, Switzerland's cooperation with Eurojust and with the European Judicial Network.

Proposal for a COUNCIL DECISION on the signature, on behalf of the European Union, of the Agreement between the European Union, the European Community and the Swiss Confederation, concerning the latter'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:

(1) Following the authorization given to the Presidency, assisted by the Commission, on 17 June 2002, negotiations with the Swiss Authorities, regarding the association of Switzerland with the implementation, application and development of the Schengen Acquis have been concluded;

(2) Subject to its conclusion at a later date, it is desirable to sign the agreement that was initialled on 25 June 2004;

(3) 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 [10] 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 to the relations with Switzerland upon signature;

[10] OJ L 176 of 10.7.1999, p. 31.

(4) The United Kingdom is taking part in this Decision, in accordance with Article 5 of 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 Article 8(2) of 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 [11];

[11] OJ L 131, 1.6.2000, p. 43

(5) Ireland is taking part in this Decision in accordance with Article 5 of 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 Article 6(2) of 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 [12];

[12] OJ L 64, 7.3.2002, p.20

HAS DECIDED AS FOLLOWS:

Article 1

Subject to its conclusion at a later date, the President of the Council is hereby authorized to designate the person empowered to sign on behalf of the European Union the Agreement between the European Union, the European Community and the Swiss Confederation concerning the latter's association with the implementation, application and development of the Schengen Acquis, and the related documents consisting of the Final Act, of the Exchange of Letters concerning the Committees that will assist the Commission in the exercise of its executive power, and of the Common Declaration on joint meetings of the Mixed Committees.

Article 2

This decision applies to the fields covered by the provisions listed in Annexes A and B of the Agreement and to their development to the extent such provisions have, or, in accordance with Decision 1999/436/EC [13], have been determined to have, a legal base within the Treaty on European Union.

[13] OJ L 176 of 10.7.1999, p. 17.

Article 3

The provisions of Council Decision 1999/437/EC shall apply, in the same way, to the association of Switzerland with the implementation, application and development of the Schengen acquis, which falls under Title VI of the Treaty on European Union .

Done at Brussels,

For the Council

The President