REPORT on the proposal for a Council decision on the conclusion, on behalf of the European Community, of the Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis

9.6.2008 - (COM(2006)0752 – C6‑0089/2008 – 2006/0251(CNS)) - *

Committee on Civil Liberties, Justice and Home Affairs
Rapporteur: Ewa Klamt

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

on the proposal for a Council decision on the conclusion, on behalf of the European Community, of the Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation's association with the implementation, application and development of the Schengen acquis

(COM(2006)0752 – C6‑0089/2008 – 2006/0251(CNS))

(Consultation procedure)

The European Parliament,

–   having regard to the proposal for a Council decision (COM(2006)0752),

–   having regard to the protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis,

–   having regard to Article 62, Article 63(3)(a) and (b), Articles 66 and 95, and Article 300(2), first subparagraph of the EC Treaty,

–   having regard to Article 300(3), first subparagraph, of the EC Treaty, pursuant to which the Council consulted Parliament (C6‑0089/2008),

–   having regard to the opinion of the Committee on Legal Affairs on the proposed legal basis,

–   having regard to Rules 51, 83(7) and 35 of its Rules of Procedure,

–   having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs (A6‑0246/2008),

1.  Approves the proposal for a Council decision as amended and approves the conclusion of the protocol;

2.  Reserves the right to defend its prerogatives as conferred by the Treaty;

3.  Instructs its President to forward its position to the Council, the Commission, the governments and parliaments of the Member States and the government and parliament of the Principality of Liechtenstein.

Amendment  1 Proposal for a Council decision Citation 1
Text proposed by the Commission	Amendment
Having regard to the Treaty establishing the European Community, and in particular Articles 62, 63 point 3 a) and b), 66 and 95 in conjunction with the second sentence of the first subparagraph of Article 300(2) and the first subparagraph of Article 300 (3) thereof,	Having regard to the Treaty establishing the European Community, and in particular Articles 62, 63 point 3 a) and b), 66 and 95 in conjunction with the second sentence of the first subparagraph of Article 300(2) and the second subparagraph of Article 300 (3) thereof,
Amendment  2 Proposal for a Council decision Citation 3
Text proposed by the Commission	Amendment
Having regard the opinion of the European Parliament,	Having regard to the assent of the European Parliament,

EXPLANATORY STATEMENT

1. The Protocol to the Schengen acquis Agreement

The purpose of this protocol is to associate Liechtenstein with the work of the EU in the area of the Schengen acquis by accession of Liechtenstein to the Schengen Agreement with Switzerland[1] via a protocol. By letter dated 12 October 2001, Liechtenstein had already expressed its interest in joining Switzerland as a contracting party to a possible Schengen and Dublin acquis association agreements since an open border policy for the movement of persons had existed between Liechtenstein and Switzerland for decades. However, Liechtenstein was not associated with the negotiations with Switzerland due to the absence of an agreement on savings taxation between the European Community and Liechtenstein. The European Community and Liechtenstein subsequently concluded such an agreement on savings taxation, which has been in operation since July 2005.

As Liechtenstein is acceding to the Schengen agreement with Switzerland, it will have the same rights and obligations as Switzerland. Liechtenstein will have to accept and apply Schengen acquis and its development without any exception or derogation[2]. With adoption of new acts or measures, if the content of such acts and measures can become binding on Liechtenstein only after fulfilment of constitutional requirements (a referendum), then Liechtenstein would have 18 months grace period to accept and implement new Schengen legislation[3]. However, in the meantime, Liechtenstein should, where possible, implement the act or measure in question on a provisional basis.

Liechtenstein also becomes a member of the Mixed Committee.

Given the existing cooperation with Switzerland in the field of visa policy and security matters which includes the use of common databases, Liechtenstein may use the technical infrastructure of Switzerland for its access to the Schengen Information System and the Visa Information System.

2. Legal basis

Although a single text was negotiated with Liechtenstein, the Commission proposes to follow the approach chosen for the signature and adoption of the Schengen agreement with Switzerland. The Commission proposes thus to adopt the Protocol by two separate acts, one based on the Treaty establishing the European Community (Articles 62, 63(3), 66 and 95) and one based on the Treaty on European Union (Articles 24 and 38). The European Parliament is consulted on the conclusion of the Protocol in accordance with the first subparagraph of Article 300(3)).

By letter of 21 March 2007 the Committee on Civil Liberties, Justice and Home Affairs requested, in accordance with Rule 35(2) of the Rules of Procedure of the European Parliament, an opinion from the Legal Affairs Committee on the legal basis proposed. At its meeting of 11 June 2007 the Legal Affairs Committee decided, as the establishment of the Joint/Mixed Committees entails the creation of an organisation structure with a discretion to take decision binding on the contracting parties, in particular with regard to the maintenance of the Agreement and dispute resolution and as the Protocol extends the Joint/Mixed Committees by including Liechtenstein as a contracting party, to recommend that he legal basis should be changed so as to refer to the second subparagraph of Article 300(3) of the EC Treaty, which requires the assent and not merely consultation of the European Parliament.

3. Position of the rapporteur

The rapporteur supports the conclusion of the Protocol and recommends giving assent to it.

However, the rapporteur considers that the European Parliament should in future be more closely informed about ongoing international negotiations in order to be able to exercise its competences.

• [1]  Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation's association with the implementation, application and development of the Schengen acquis signed on 26 October 2004. Article 16 of this Agreement provides for the possibility of Liechtenstein to accede to that Agreement via a protocol.
• [2]  However, an exception has been granted, concerning the development of Schengen acquis, if such a development concerns search and seizure requests or orders made for the purposes of investigating or prosecuting offences in the field of direct taxation which, if committed in Liechtenstein, would not be punishable under Liechtenstein law with a custodial penalty (Article 5(5) of the Protocol).
• [3]  Norway had 6 months, Iceland had 4 weeks, Switzerland had 24 months in order to accept and implement the future Schengen acquis.

OPINION OF THE COMMITTEE ON LEGAL AFFAIRS ON THE LEGAL BASIS

Mr Jean-Marie Cavada

Chairman

Committee on Civil Liberties, Justice and Home Affairs

BRUSSELS

Subject:           Proposal for a Council decision on the signature, on behalf of the European Community, and on the provisional application of certain provisions of the Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis(COM(2006)0725 – 2006/0251(CNS))[1]

Dear Mr Chairman,

By letter of 21 March 2007 you asked the Committee on Legal Affairs pursuant to Rule 35(2), to consider whether the legal basis of the above Commission proposal was valid and appropriate.

The committee considered the above question at its meeting of 11 June 2007.

That letter points out that on 13 October 2005 Parliament approved the conclusion of an agreement with Switzerland on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis, having regard to the opinion of the Legal Affairs Committee, which considered that the appropriate legal basis was the second paragraph of Article 300(3) of the EC Treaty.

As regards the proposals now under consideration, these relate to the conclusion of a Protocol to the agreement with Switzerland so as to allow the Principality of Liechtenstein to accede thereto.

The Civil Liberties Committee notes that the accession of Liechtenstein is provided for in the main agreement, namely in Article 16 of the Schengen Agreement with Switzerland.

The Committee further observes that the question concerning the assent of Parliament arises once again due to the fact that the Protocol extends the Joint/Mixed Committees by including Liechtenstein as a contracting party. That reason is strengthened by the fact that the Committee play a decision-making role with regard to the Protocol.

The Committee draws the attention of the Committee on Legal Affairs to the fact that the same legal arguments in support of including Article 300(3), second subparagraph (assent), as the appropriate legal basis instead of Article 300(3), first subparagraph (consultation), could apply to the conclusion of the Protocol in the same way as Parliament argued that they applied with regard to the conclusion of the main agreement with Switzerland.

Pertinent provisions of the EC Treaty

Article 300(3)

3. The Council shall conclude agreements after consulting the European Parliament, except for the agreements referred to in Article 133(3), including cases where the agreement covers a field for which the procedure referred to in Article 251 or that referred to in Article 252 is required for the adoption of internal rules. The European Parliament shall deliver its opinion within a time-limit which the Council may lay down according to the urgency of the matter. In the absence of an opinion within that time-limit, the Council may act.

By way of derogation from the previous subparagraph, agreements referred to in Article 310, other agreements establishing a specific institutional framework by organising cooperation procedures, agreements having important budgetary implications for the Community and agreements entailing amendment of an act adopted under the procedure referred to in Article 251 shall be concluded after the assent of the European Parliament has been obtained.

Appraisal

The question to be determined is whether the agreement in question establishes a specific institutional framework by organising cooperation procedures.

It is noted, in limine, that it is settled case-law of the Court of Justice[2] that the choice of legal basis of Community acts is to be determined solely by reference to objective criteria that are amenable to judicial review, and in particular the aim and content of the act being proposed.

The proposals relate specifically to the signature of a Protocol on the accession of Liechtenstein to an agreement already concluded with the Swiss Confederation.

Whereas the Court of Justice has yet to interpret the concept of a "specific institutional framework" within the meaning of the second subparagraph of Article 300(3), the Legal Affairs Committee has held that the main Agreement required the assent of Parliament under the second subparagraph of Article 300(3) on the ground that at clearly established a "specific institutional framework" (the Joint/Mixed Committees provided for entail the creation of an organisational structure with a discretion to take decisions binding on the contracting parties, in particular with regard to the maintenance of the Agreement and dispute resolution).

It is further observed that protocols are generally concluded on the same legal basis as the main agreement.

Lastly, when the Protocol is concluded, the institutional framework will itself be formally modified, because the Joint/Mixed Committees will be extended through the inclusion of new Members - representing Liechtenstein. To that extent, it is considered that the proposals for Council decisions set out to modify the "specific institutional framework" provided for in the main Agreement, and that hence reference should be made to the second subparagraph of Article 300(3) of the EC Treaty.

Conclusion

In light of the foregoing, it is considered that the proposals for Council Decisions set out to modify the "specific institutional framework" provided for in the main Agreement, of which the proposed Protocol forms an integral part.

At its meeting of 11 June 2007 the Committee on Legal Affairs accordingly decided, unanimously[3], to recommend that the legal basis should be changed so as to refer to the second paragraph of Article 300(3) of the EC Treaty, which requires the assent and not merely consultation of Parliament.

Yours sincerely,

Giuseppe Gargani

• [1]  Not yet published in OJ.
• [2]  See Case C-338/01 Commission v. Council [2004] ECR. I-7829, para. 54; Case C-211/01 Commission v. Council [2003] ECR. I-8913, para. 38; Case 62/88 Greece v. Council [1990] ECR I-01527, para. 62.
• [3]  The following were present for the final vote: Cristian Dumitrescu (acting chairman), Lidia Joanna Geringer de Oedenberg (vice-chairwoman), Manuel Medina Ortega (draftsman), Carlo Casini, Janelly Fourtou, Luis de Grandes Pascual, Kurt Lechner, Klaus-Heiner Lehne, Antonio Masip Hidalgo, Hans-Peter Mayer, Michel Rocard, Aloyzas Sakalas, Gabriele Stauner, Diana Wallis, Jaroslav Zvěřina and Tadeusz Zwiefka.

PROCEDURE

Title	Accession of Liechtenstein to the Agreement between the EU, the EC and Switzerland on Switzerland’s association with the implementation, application and development of the Schengen acquis
References	COM(2006)0752 – C6-0089/2008 – 2006/0251(CNS)
Date of consulting Parliament	28.2.2008
Committee responsible        Date announced in plenary	LIBE 13.3.2008
Committee(s) asked for opinion(s)        Date announced in plenary	AFET 13.3.2008
Not delivering opinions        Date of decision	AFET 27.2.2007
Rapporteur(s)        Date appointed	Ewa Klamt 19.12.2006
Legal basis disputed        Date of JURI opinion	JURI 11.6.2007
Discussed in committee	28.2.2007		28.2.2007		6.5.2008		29.5.2008
Date adopted	29.5.2008
Result of final vote	+: –: 0:	36 0 2
Members present for the final vote	Alexander Alvaro, Emine Bozkurt, Philip Bradbourn, Mihael Brejc, Kathalijne Maria Buitenweg, Michael Cashman, Giusto Catania, Jean-Marie Cavada, Carlos Coelho, Panayiotis Demetriou, Gérard Deprez, Agustín Díaz de Mera García Consuegra, Bárbara Dührkop Dührkop, Claudio Fava, Urszula Gacek, Patrick Gaubert, Jeanine Hennis-Plasschaert, Lívia Járóka, Ewa Klamt, Stavros Lambrinidis, Henrik Lax, Roselyne Lefrançois, Claude Moraes, Martine Roure, Csaba Sógor, Manfred Weber, Tatjana Ždanoka
Substitute(s) present for the final vote	Edit Bauer, Simon Busuttil, Genowefa Grabowska, Sophia in ‘t Veld, Syed Kamall, Sylvia-Yvonne Kaufmann, Marian-Jean Marinescu, Marianne Mikko, Bill Newton Dunn, Nicolae Vlad Popa
Substitute(s) under Rule 178(2) present for the final vote	Manolis Mavrommatis