WRITTEN QUESTION E-3754/02

by Jan Andersson (PSE) to the Commission

(20 December 2002)

Subject: Application of the Schengen Agreement at Frankfurt airport

A Swedish citizen who flew into Frankfurt airport (in November 2002) from a non-European country has stated that, on arrival, German police singled out all those travelling on German passports and ushered them into a separate queue to pass through passport control. German passport-holders were therefore able to get through passport control considerably faster than anyone else holding a passport issued by another Schengen country, as the latter were instructed to join the normal queue, conventionally divided into queues for EU citizens and non-EU citizens, which were, of course, much longer.

This procedure, as described, raises questions as to how the principles of the Schengen Convention are applied at Frankfurt airport. Since the entry into force of the Treaty of Amsterdam, the Council is responsible for ensuring that checks on individuals at the external borders of the Schengen area are carried out in a uniform manner. However, the description of the procedure at Frankfurt airport indicates that this is not the case and that it constitutes a breach of the principles laid down in the Schengen agreement.

Does the common manual for the external frontiers allow the type of distinction between different Schengen citizens as described above?

If not, what measures can the Commission take to deal with this discrimination?

In the light of this situation, should the revision of the manual, which is reportedly in progress, be stepped up?

Answer given by Mr Vitorino on behalf of the Commission

(10 February 2003)

In response to the matters raised by the Honourable Member, the Commission would recall the following principles of Community law:

- Under Council Decision 1999/436/EC of 20 May 1999(1), the main provisions of the Schengen acquis relating to the monitoring and surveillance of persons crossing the external borders have been given a new legal basis in Article 62 of the EC Treaty, in particular the decision of the Schengen Executive Committee introducing and applying the Schengen arrangements in airports and aerodromes(2). Henceforth the provisions which constitute the Schengen acquis have the status of Community law and thus the Commission can exercise its role of guardian of the Treaties to ensure compliance with it.

- With regard to substance, the Schengen acquis provides that checks on persons crossing external borders should be kept to a minimum for those covered by Community law, with identity papers and travel documents being checked. More thorough checks should be carried out on nationals of third countries not covered by Community law, and checks should not be confined to a mere examination of their identity papers or travel documents.

- With regard to practical arrangements in airports, the Schengen acquis makes provision for separate passenger flows for persons covered by Community law and for third-country nationals. The purpose of these channels is to minimise waiting times at external borders for persons covered by Community law and to enable border control staff to carry out the thorough checks prescribed for third-country on nationals under the best possible conditions.

- The separate passenger flows provided for by the Schengen acquis are consistent with Community law relating to the free movement of Union citizens. No discrimination is made between persons covered by Community law or between Member States which apply the Schengen acquis in full and those which do not. Should the claims made by the Honourable Member be proved valid, they would be in contradiction with the Schengen acquis and with the Community principle of non-discrimination between Union citizens.

- On a more general note, with regard to checking that the Schengen acquis is properly applied by the Member States, visits by the evaluation committee introduced at the time of intergovernmental cooperation(3) have been incorporated into the Union's institutions. They have been given a dual legal basis in Article 66 of the EC Treaty and in Articles 30 and 31 of the Treaty on European Union(4). On that occasion the Commission stated that the Schengen Implementing Convention Standing Committee () does not in any way affect the powers devolving on it from the Treaties and in particular its responsibility as guardian of the Treaties.

- The Commission's responsibilities in the matter are illustrated by the fact that, in agreement with the conclusions of the Seville European Council and with the External Borders Management Plan adopted by the Council (Justice and Home Affairs) on 13 June 2002, the Commission is preparing a legislative proposal recasting the Common Manual on Checks at the External Borders. The conversion of the main provisions of the Common Manual into Community rules will remove all ambiguity as to their compulsory nature for the Member States.

(1) Council Decision 1999/436/EC of 20 May 1999 determining, in conformity with the relevant provisions of the Treaty establishing the European Community and the Treaty on European Union, the legal basis for each of the provisions or decisions which constitute the Schengen acquis OJ L 176, 10.7.1999.

(2) Decision of the Schengen Executive Committee No SCH/Com-ex (94) 17, rev 4 of 22.12.1994 published in OJ L 239, 22.9.2000.

(3) Decision by the Schengen Executive Committee SCH/Com-ex (98) 26 final of 16.9.1998 published in OJ L 239, 22.9.2000.

(4) Council Decision 1999/436/EC OJ L 176, 10.7.1999.