WRITTEN QUESTION E-3184/95 by Arthur Newens (PSE) to the Commission (29 November 1995)

Subject: Impact of the Schengen Information System on the freedom of movement of third country nationals in the European Union

There appears to be a direct conflict between the provisions of the Schengen Implementation Agreement and the right to freedom of movement in European Union law, in that the definition of 'alien' under Article 1 of the Schengen Implementation Agreement as 'any person other than a national of a Member State of the European Communities' does not include any reference to third country nationals, who enjoy the right of freedom of movement under EU law. This definition in itself, together with the consequences arising from the provisions on the Schengen Information System, appears to constitute a clear breach of EU free movement law.

Can the Commission confirm that, as a matter of EU law, the entry into force of the Schengen Implementation Agreement on 1 July 1995 does not by itself authorize the imposition of restrictions on existing rights of freedom of movement enjoyed by third country nationals under the European Treaties? What steps will the Commission take to prevent such restrictions being imposed in breach of EU law?

Supplementary joint answer to Written Questions E-3184/95 and E-3185/95 given by Mr Monti on behalf of the Commission (25 June 1996)

The matters raised by the Honourable Member have been thoroughly examined both by the Schengen Group (on which the Commission has observer status) and as part of the negotiations on the draft Convention on the crossing of the external frontiers of the Member States, ((COM(93) 684; OJ C 11, 15.1.1994. )) which was presented by the Commission pursuant to Title VI of the Treaty on European Union. The Commission is now able to communicate the results of the deliberations.

Within the context of the European Union, the discussions resulted in the adoption of the principle whereby third-country nationals entitled under Community law relating to the free movement of persons are not to be placed on the joint list of foreigners identified in the European information system for purposes of non-admission. After confirming that principle, the text approved by the fifteen Member States states that 'However, (persons entitled under Community law) may be placed on the said list provided that this is compatible with Community law.' It also stipulates that 'If a person who has been placed on the joint list of persons to be refused entry is found to be entitled under Community law, he may be kept on the list only if this is compatible with Community law. Should this not be the case, the Member State which placed the person on the list shall take whatever measures are required to remove him therefrom.'

As regards the joint list of persons to be refused entry that forms part of the Schengen information system, the Schengen Group reproduced in a declaration approved by its Executive Committee on April 18 1996 the text of the solution adopted at Union level.

For its part, the Commission made to the Schengen Executive Committee a declaration similar to that presented during the course of the deliberations at Union level. It declared that placing on the joint list of persons to be refused entry to Union territory a person entitled under Community law is compatible with Community law only if that person is regarded as posing a serious, effective and genuine threat to the public order and safety of each Contracting Party.