Proposal for a COUNCIL DECISION concerning the notification of the United Kingdom of Great Britain and Northern Ireland of its wish no longer to take part in some of the provisions of the Schengen acquis which are contained in Council Regulation (EC) No 377/2004 of 19 February 2004 on the creation of an immigration liaison officers network
Date: 2019-01-31
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: EU migration policy, Schengen Agreement, United Kingdom, aid to refugees, exchange of information, illegal migration, immigration, return migration, third country

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   EUROPEAN COMMISSION  Brussels, 31.1.2019  COM(2019) 23 final 2019/0011 (NLE)  Proposal for a COUNCIL DECISION concerning the notification of the United Kingdom of Great Britain and Northern Ireland of its wish no longer to take part in some of the provisions of the Schengen acquis which are contained in Council Regulation (EC) No 377/2004 of 19 February 2004 on the creation of an immigration liaison officers network   
 
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

In accordance with Article 5 of 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 acquis1, the United Kingdom 
took part in Council Regulation (EC) No 377/2004 of 19 February 2004 on the creation of an 
immigration  liaison  officers  network,  as  amended  by  Regulation  (EU)  No  493/2011  of  the 
European Parliament and of the Council of 5 April 2011. 

On 16 May 2018, the Commission proposed a further amendment of Regulation No 377/2004, 
in  the  form  of  a  recast.2  That  proposal  was  received  by  the  Council  in  all  the  required 
languages on 2 July 2018. 

On 1 October 2018, in accordance with the procedure set out in Article 5(2) of the Protocol 
(No  19)  on  the  Schengen  acquis  integrated  into  the  framework  of  the  European  Union 
annexed  to  the  Treaty  on  European  Union  and  to  the  Treaty  on  the  Functioning  of  the 
European Union, the United Kingdom notified to the President of the Council its wish not to 
take  part  in  the  16  May  2018  recast  proposal.  As  a  consequence  the  United  Kingdom  no 
longer takes part in the adoption of this proposal.  

In  view  of  the  fact  that  the  network  character  of  the  Immigration  Liaison  Officers  network 
makes  it  impossible  for a  Member  State  to  remain  part  of  that  network  where  the  amended 
legislation setting up that network does not apply to that Member State, another consequence 
of the aforementioned notification will be that the United Kingdom will cease to participate in 
the  Immigration  Liaison  Officers  network  from  the  date  of  entry  into  force  of  the  recast 
proposal regarding that network. 

In  accordance  with  Article  5(3)  of  Protocol  (No  19)  on  the  Schengen  acquis,  the  Council 
determines  the  extent  and  the  conditions  under  which  the  United  Kingdom  will  cease  to 
participate in  parts  of the Schengen  acquis affected by the aforementioned notification. The 
Council acts in the form of a decision, adopted by qualified majority on a proposal from the 
Commission.  

The  Council  decision  under  Article  5(3)  of  Protocol  (No  19)  on  the  Schengen  acquis  takes 
account  of  the  following  criteria:  the  need  to  retain  the  widest  possible  participation  of  the 
notifying  Member  State  in  the  Schengen  acquis  without  seriously  affecting  its  practical 
operability and while respecting its coherence. 

The  16  May  2018  recast  proposal  aims  to  increase  coordination  and  optimise  the  use  of 
immigration  liaison  officers,  including  the  new  European  liaison  officers  deployed  to  third 
countries, in order to respond more effectively to EU priorities in the field of migration. 

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2 

OJ L 131, 1.6.2000, p. 43. 
Proposal for a Regulation of the European Parliament and of the Council on the creation of a European 
network of immigration liaison officers (recast)*, COM(2018) 303 final. 

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The 16 May 2018 recast proposal has the same objectives as  Regulation (EC) No 377/2004, 
as  amended  by  Regulation  (EU)  No  493/2011,  focusing  on  enhancing  cooperation  and 
coordination between immigration liaison officers posted in third countries, notably by setting 
out the obligation to establish local or regional networks among immigration liaison officers 
as well as promoting the use of a dedicated e-tool for regular exchange of information within 
the local networks and establishing a reporting system on the activities of immigration liaison 
officers’ networks, but without mandating specific operational interaction with other systems 
or legal instruments part of the Schengen acquis. 

It  follows  from  the  nature  of  the  16  May  2018  recast  proposal,  as  well  as  from  that  of  the 
existing Regulation  (EC) No 377/2004  as  amended by Regulation  (EU)  493/2011,  that they 
constitute  a  self-standing  measure  within  the  Schengen  acquis,  which  is  not  operationally 
interacting with other legal instruments that are part of the Schengen acquis.  

Therefore, it can be considered, in this very exceptional case, that despite the cessation of the 
United Kingdom’s participation in Regulation (EC) No 377/2004, as amended by Regulation 
(EU)  No  493/2011,  continued  participation  by  the  United  Kingdom  in  the  remainder  of  the 
Schengen acquis in which it currently participates,  serves to ensure the UK’s widest possible 
participation  in  such  acquis  without  seriously  affecting  the  Schengen  acquis’  practical 
operability while at the same time respecting its coherence. 

• 

Consistency with other Union policies 

Not applicable  

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

This proposal is based on Article 5(3) of Protocol (No 19) on the Schengen acquis integrated 
into the framework of the European Union. 

• 

Subsidiarity (for non-exclusive competence)  

Not applicable  

• 

Proportionality 

Not applicable. 

• 

Choice of the instrument 

Protocol  (No  19)  on  the  Schengen  acquis  integrated  into  the  framework  of  the  European 
Union  sets  out  the  procedures  regulating  the  United  Kingdom's  participation  in  measures 
building on the Schengen acquis. 

RESULTS 

3. 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

OF 

EVALUATIONS, 

STAKEHOLDER 

Given the nature and scope of this proposal, no ex-post evaluation, stakeholder consultation or 
impact assessment are necessary.  

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4. 

BUDGETARY IMPLICATIONS 

The proposal bears no budgetary implication. 

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2019/0011 (NLE) 

Proposal for a 

COUNCIL DECISION 

concerning the notification of the United Kingdom of Great Britain and Northern 
Ireland of its wish no longer to take part in some of the provisions of the Schengen 
acquis which are contained in Council Regulation (EC) No 377/2004 of 19 February 
2004 on the creation of an immigration liaison officers network 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty on the European Union,  

Having regard to the Treaty on the Functioning of the European Union,  

Having regard to the proposal from the European Commission, 

Having regard to the Protocol (No 19) on the Schengen acquis integrated into the framework 
of the European Union,  annexed to  the Treaty on European  Union and to the Treaty  on the 
Functioning of the European Union, and in particular to Article 5(3) thereof, 

Having regard to the notification, under Article 5(2) of the Protocol (No 19) on the Schengen 
acquis  integrated  into  the  framework  of  the  European  Union,  by  the  Government  of  the 
United  Kingdom  of  Great  Britain  and  Northern  Ireland,  by  its  letter  to  the  President  of  the 
Council of 1 October 2018, of its wish not to take part in the proposalfor a Regulation of the 
European  Parliament  and  of  the  Council  on  the  creation  of  a  European  network  of 
immigration liaison officers, 3 

Whereas: 

(1) 

(2) 

(3) 

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The United Kingdom took part in Council Regulation (EC) No 377/20044, as amended 
by Regulation (EU) No 493/2011 of the European Parliament and of the Council of 5 
April 20115. 

On  1  October  2018,  within  the  required  three-month  deadline,  the  United  Kingdom 
has notified to the President of the Council its wish not to take part in the adoption of 
the  recast  of  the  Regulation  on  the  creation  of  a  European  network  of  immigration 
liaison  officers,  proposed  by  the  Commission  on  16  May  2018  and  received  by  the 
Council in all the required languages on 2 July 2018. 

Regulation  (EC)  No  377/2004  aims  to  enhance  cooperation  between  immigration 
liaison  officers  posted  in  third  countries,  notably  by  setting  out  the  obligation  to 
establish  local  or  regional  networks  among  immigration  liaison  officers  as  well  as 
promoting the use of a dedicated e-tool for regular exchange of information within the 
local  networks  and  establishing  a  reporting  system  on  the  activities  of  immigration 

COM(2018) 303 final. 
Council Regulation (EC) No 377/2004 of 19 February 2004 on the creation of an immigration liaison 
officers network (OJ L 064, 2.3.2004, p.1). 
Regulation  (EU)  No  493/2011  of  the  European  Parliament  and  of  the  Council  of  5  April  2011, 
amending  Council  Regulation  (EC)  No  377/2004  of  19  February  2004  on  the  creation  of  an 
immigration liaison officers network (OJ L141, 27.5.2011, p.13). 

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liaison officers’ networks through bi-annual Presidency reports, without requiring the 
use  of  any  operational  systems  or  directly  interacting  with  any  legal  provisions 
contained in other legal instruments that are part of the Schengen acquis. 

The  16  May  2018  proposal  for  the  recast  of  the  Regulation  on  the  creation  of  a 
European  network  of  immigration  liaison  officers,  while  aiming  to  increase 
coordination  and  optimise  utilisation  of  immigration  liaison  officers,  including  the 
new  European  liaison  officers  deployed  to  third  countries,  in  order  to  respond  more 
effectively to EU priorities in the field of migration, does not depart from the nature of 
the  current  Regulation  (EC)  No 377/2004,  as  amended  by  Regulation  (EU)  No 
493/2011,  inasmuch  as  its  concrete  interaction  with  the  other  parts  of  the  Schengen 
acquis is concerned. 

The proposal for the recast of the Regulation on the creation of a European network of 
immigration  liaison  officers,  just  as  Regulation  (EC)  No  377/2004  as  amended  by 
Regulation (EU) No 493/2011, can therefore be considered as a self-standing measure 
within  the  Schengen  acquis,  which  is  not  interacting  operationally  with  other  legal 
instruments that are part of the Schengen acquis. 

In this exceptional case and in the light of the self-standing nature within the Schengen 
acquis  of  Regulation  (EC)  No  377/2004,  as  amended  by  Regulation  (EU)  No 
493/2011, it may be considered that, if the United Kingdom no longer participates in 
this Regulation, or any further amendments thereof, but continues to participate in the 
remaining  Schengen  acquis  in  which  it  currently  participates  pursuant  to  Council 
Decision  2000/365/EC6,  this  would  ensure  the  widest  possible  participation  of  the 
United Kingdom without seriously affecting the practical operability of the other parts 
of the Schengen acquis, while respecting their coherence. 

Article  8(2)  of  Decision  2000/365/EC  should  therefore,  in  accordance  with  Article 
5(3) of the Protocol (No 19) on the Schengen acquis integrated into the framework of 
the  European  Union  and  as  from  the  entry  into  force  of  the  proposed  recast  of 
Regulation (EC) No 377/2004, cease to apply to the United Kingdom of Great Britain 
and  Northern  Ireland  as  regards  Regulation  (EC)  No  377/2004,  as  amended  by 
Regulation  (EU)  No  493/2011,  and  any  further  amendments  thereof,  including  the 
proposal for the recast of Regulation (EC) No 377/2004.  
As a  consequence, point 6 of Annex  I to Council  Decision 2004/926/EC7 as  regards 
Regulation (EC) No 377/2004 should equally, in accordance with Article 5(3) of that 
Protocol, cease to apply as from the entry into force of the proposed recast, 

(4) 

(5) 

(6) 

(7) 

(8) 

HAS ADOPTED THIS DECISION:  

Article 1 

Decision 2000/365/EC, as well as point 6 of Annex I to Decision 2004/926/EC, shall cease to 
apply  to  the  United  Kingdom  of  Great  Britain  and  Northern  Ireland  as  regards  Council 
Regulation (EC) No 377/2004 on the creation of an immigration liaison officers  network, as 
amended by Regulation (EU) No 493/2011, and any further amendments thereof, as from the 

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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  (OJ L 131, 
1.6.2000, p.43). 
Council Decision 2004/926/EC of 22 December 2004 on the putting into effect of parts of the Schengen 
acquis by the United Kingdom of Great Britain and Northern Ireland (OJ L 395, 31.12.2004, p.70). 

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day of entry into force of the proposed recast of the Regulation of the European Parliament 
and the Council on the creation of a European network of immigration liaison officers. 

Article 2 

This Decision shall enter into force on the day following that of its publication in the Official 
Journal of the European Union. 

Done at Brussels, 

For the Council 
The President 

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