At the sitting of 5 September 1996 the President of Parliament announced that the Conference of Presidents had authorized the committee to report on this subject.

The Committee on Civil Liberties and Internal Affairs had appointed Mrs Anne Van Lancker rapporteur at its meeting of 29 May 1996.

It considered the draft report at its meetings of 8 July, 7 October, 30 October, 3 December and 16 December 1996 and 20 January 1997.

At the last meeting it adopted the motion for a resolution by 14 votes to 12, with 1 abstention.

The following were present for the vote: d'Ancona, chairman; Reding, vice-chairman; Van Lancker, rapporteur; Andrews (for Wiebenga), Bontempi, Cederschiöld, Chanterie ()for Colombo Svevo), Crawley, De Esteban Martin, Deprez, Donnay (for Schaffner, pursuant to Rule 138(2)), Dupuis (for Pradier), Elliott, Ford, Goerens, Lindeperg, Lindholm (for Orlando), Lucas Pires, Marinho, Nassauer, Pirker, Posselt, Roth, Schulz, Stewart-Clark, Terron i Cusi and Zimmermann.

The explanatory statement will be presented orally in plenary sitting.

The report was tabled on 22 January 1997.

The deadline for tabling amendments will be indicated in the draft agenda for the relevant partsession.

Resolution on the functioning and future of Schengen

The European Parliament,

- having regard to the Treaty on European Union, and in particular Title VI thereof and Articles 7a, 100a and 100c of the EC Treaty,

- having regard to the Schengen Agreement of 14 June 1985 and the Convention applying the Schengen Agreement (CSA) of 19 June 1990,

- having regard to the Annual report on the implementation of the Convention from 26 March 1995 to 25 March 1996(1),

- having regard to the resolutions of the European Parliament on the free movement of persons, the third pillar and the Schengen Agreements(2),

- having regard to the resolution of the European Parliament on the 1996 Intergovernmental Conference(3),

- having regard to the deliberations in the national parliaments of the future Schengen countries and the countries of the Nordic Passport Union,

- having regard to Rule 148 of its Rules of Procedure,

- having regard to the report of the Committee on Civil Liberties and Internal Affairs (A40014/96),

A. whereas Article 7A of the Treaty, which provides for the EU to become an area without internal borders and where people may enjoy free movement by 1 January 1993, has not yet entered into force and concerned that the flanking measures are becoming, as far as the Council is concerned, essential prerequisites for the entry into force of Article 7a,

B. whereas most countries of the European Union have decided in principle to abolish checks at their internal borders and to adapt 'accompanying measures' under the CSA,

C. whereas France has maintained, pursuant to Article 2(2) of the CSA, checks at internal borders with Belgium and Luxembourg,

D. whereas an agreement has been reached on the accession of Denmark, Sweden and Finland to Schengen and whereas a cooperation agreement has been concluded with Norway and Iceland,

E. whereas the Nordic Passport Union, which entered into force in 1957, provides for the free movement of persons between Denmark, Sweden, Norway, Finland, Iceland and Faeroe Islands; whereas the NPU aims to abolish passport controls at the internal borders of the Nordic countries and covers some of the main issues linked to freedom of movement and residence,

F. whereas there are insufficient guarantees in the CSA as regards parliamentary and judicial controls;

G. whereas the Schengen Agreements are limited in duration and must be replaced by Community legislation,

H. whereas there was no consensus at the Intergovernmental Conference to review the Treaty on European Union on giving a fundamentally democratic dimension to decision-making with regard to making the free movement of persons a reality and in respect of cooperation in the fields of justice and home affairs,

I. The functioning of Schengen:

1. Notes that the Schengen countries have taken steps to guarantee both the right of freedom of movement and the right of security of their residents; points out nevertheless that, pursuant to Article 7a of the EC Treaty, the free movement of persons is an integral part of the internal market and of the European Union's objectives; calls on the Commission, the Council and the Member States, using Community mechanisms, to put into practice the free movement of persons for all citizens of the Union and of third countries who are legally resident in the Union; regrets that the Schengen Agreements create new forms of discrimination between citizens of the Union on account of their nationality, on the one hand, and against citizens of third countries who are legally resident in the Union;

2. Points out that some of the most important aspects of the implementation of the CSA are the establishing of a very well-controlled border within the EU and the introduction of a range of police and legal measures under the pretext of stepping up security;

3. Regrets that the Schengen Agreements have created an imbalance by overemphasizing policy migration-limiting policies and the maintenance of order;

4. Criticizes the lack of transparency and democratic control of the Schengen Convention; points out that the monitoring of its implementation and legal protection for the people are not adequate;

5. Regrets the fasct that the French government continues to make abolition of checks at internal borders dependent on new 'compensatory measures';

6. Is of the opinion that the abolition of checks at internal frontiers must not be the excuse for introducing systematic controls in border regions (joint commissions, 20-km zone) or for hermetically sealing the external borders ('Fortress Europe'); stresses nevertheless that Member States retain the right to stop suspected criminals at frontiers particularly where natural boundaries provide easy check points;

7. Maintains that the abolition of checks at internal frontiers must not be accompanied by the introduction of new administrative checks which would infringe human rights;

8. Has noted the establishment by the Executive Committee of a consultative procedure for the application of Article 2(2) of the CSA; calls for greater account to be taken, when further details are formulated, of the provisions contained in the Commission proposal on the abolition of checks at internal frontiers and for all such checks to be of limited duration;

9. Calls on the Commission to carry out its role of guardian of the Treaties and observer of the activities of the Schengen Group and to inform Parliament of proposed measures and decisions, both within the context of the third pillar of the Treaty on European Union, and in the context of the working of Schengen;

10. Calls for greater transparency of the Schengen arrangements, by drawing up coordinated Schengen rules and compiling a public register of the reports of the Executive Committee; calls for all useful documents to be submitted to the European Parliament and to the national parliaments; calls also for the European Parliament and the national parliaments to receive in good time the agenda and the draft texts for the Executive Committee and to receive full reports of the meetings of the Executive Committee and of the Central Group;

11. Calls on the Central Group, when drawing up the annual report, to provide more and better information on application of the CSA and the consequences of implementing the Schengen Agreement, with particular reference to the use of, and possible changes to, the various manuals, on the effectiveness and the problems of checks at external frontiers, on the implementation of the provisions on asylum policy, on application of mutual assistance in criminal justice and police work and on the use of contact and liaison officers;

12. Calls on the national parliaments to ensure that when national law is brought in line with the Schengen Agreements international legal instruments on asylum, protection of personal privacy and human rights are fully respected;

with regard to the working of the Schengen Information System (SIS) and the protection of privacy:

13. Is concerned at the fact that the SIS is used principally as a database on 'undesirable aliens', including aliens with no criminal record or means of redress;

14. Calls for inclusion in police records to be confined to the prevention of real threats or specific criminal action pursuant to the international rules of law in the framework of the Council of Europe; notes that the inclusion of aliens with the purpose of refusing them access to the territory does not satisfy this criterion and that an entire group of people are turned into criminals with no means of redress;

15. Notes that major differences exist between the Schengen countries as regards the inputting of data into the Schengen Information System; believes that this renders the functioning of the system less effective than it could be and calls upon the countries in question to harmonize their policies in this area;

16. Is of the opinion that the establishment of various data processing systems (Schengen Information System, Europol, EIS, Customs Information Service) is necessary to ensure that data are protected and used for the appropriate purposes, but that greater coordination is desirable, provided that account is taken of the principles of data protection, and efforts should be made to achieve cooperation between the various national Europol and SIRENE offices;

17. Calls for at least one data protection standard corresponding to the provisions of the Agreement of the Council of Europe of 28 January 1981 and Recommendation R(87)15 of the Committee of Ministers of the Council of Europe of 17 September 1987 to be guaranteed when personal data are used for police purposes;

18. Calls for inclusion in police records to be confined to objective information excluding personal data (such as sexual habits, political and religious convictions, information about health, race, etc.) pursuant to the international rules of law in the framework of the Council of Europe;

19. Notes that the joint supervisory authority for the protection of privacy has reported arrests of persons who have been wrongly included in the SIS, and calls for watertight measures to be taken to prevent this;

20. Calls for measures to be taken forthwith to make the work of the joint supervisory authority on the protection of privacy more effective (Article 115 of the CSA); calls, furthermore, for the public to be informed of the rules; calls for representatives of human rights organizations to be represented in the joint supervisory authority;

21. Notes that the practical implementation of police cooperation by means of bilateral agreements leads to legal uncertainty, a lack of transparency and practices which cannot be monitored on the ground;

with regard to police and judicial cooperation:

22. Calls for a communication from the Central Group on experience with cross-border police cooperation, including cross-border observation, pursuit and communications;

23. Calls for a communication on the substance of the declarations specified in Article 41 of the CSA in respect of the right of pursuit and on which Member States have modified their declarations;

24. Calls on the governments of the Schengen countries to improve coordination between the scope of a number of cross-border measures, so that the declarations provided for in the Agreement are kept to a minimum;

25. Expects work to start as a matter of urgency on harmonizing the definitions and concepts in respect of legal assistance, offences and police cooperation, so that the information forwarded to Schengen is easier to compare and interpret;

26. Calls, as a matter of urgency, for a structural dialogue to be established between Schengen and Interpol and for these arrangements to be communicated to the European Parliament;

27. Calls on the Schengen countries to begin the task of codifying Schengen judicial decisions on the basis of best practice in order to establish the best practical administration of justice;

with regard to checks at external borders:

28. Calls for a comprehensive report on checks at external borders, including an analysis of all the problems occurring there;

29. Calls for implementation of the provisions required to guarantee the right of appeal against a refusal to allow access to the territory for persons who are detained at external borders;

30. Calls, as a matter of urgency, for harmonization of visa policy and of the list of countries for which a visa is required in the Schengen area; calls, as a matter of urgency, for rules on mutual recognition of travel and residence documents of the Schengen countries;

with regard to drugs:

31. Has taken careful note of the proposals of the Netherlands Presidency on an approach to drug tourism and international drug routes; notes that the administrative and judicial authorities in border areas have established a framework of cooperation and that the Netherlands and Belgian authorities are cooperating with a view to stemming the flow of drugs; calls therefore on the French government to put an end to checks at the internal borders with Belgium and Luxembourg;

32. Regrets deeply the fact that the use of Article 2(2) of the CSA by the French government has been transformed into a means of exerting pressure designed to impose one Member State's policy on drugs on other Member States without any democratic debate;

with regard to asylum policy:

33. Calls on the Schengen countries for greater transparency with regard to the procedure and criteria used to establish responsibility for processing asylum applications; calls for asylumseekers to be informed in a timely and clear manner about application of the Schengen provisions so that they can leave voluntarily for the Schengen country which is responsible for processing their applications;

34. Maintains that the visa requirements and provisions on border control must be consistent with the right of individuals to seek asylum and the obligation of the state to respect the principle of non-refoulement;

35. Is concerned that, despite common positions and resolutions adopted within the context of the Union Treaty, the differences in interpretation between the various Schengen countries as regards the definition of 'refugee', the procedure used to determine status and the rights of asylum-seekers awaiting decisions as to the country responsible for processing their applications may result in legal inequality and uncertainty;

36. Calls on the Schengen group to draw up guidelines for the provisions of Articles 29(4) and 36 of the CSA to be used exclusively in the interests of asylum-seekers; notes that transfer on the basis of those Articles to another Schengen country is permitted only with the consent of the asylum-seekers in question; calls on the Schengen countries to grant asylum-seekers the right to appeal, with suspensory effect, against decisions to transfer them to another country;

37. Calls on the Schengen countries to apply Article 36 of the Convention in such a way that members of the same family who are separated from each other in the Schengen area may be reunited on the basis of application of the Schengen criteria and their applications for asylum may be processed in the same country; calls for the 'family unit' principle to be applied also when decisions are to be taken on the admissibility of applications for asylum; calls for the term 'family' to be given a broad interpretation covering all family members who live in the same household, in accordance with Article 185 of the UNHCR Manual; calls for the same procedure to apply in the context of the Dublin Convention;

38. Calls, with a view to the future enlargement of the EU, for close cooperation with the countries of Central and Eastern Europe on asylum policy and practice;

39. Points out that application of the concept of "safe third countries" and of "mere transit" can result in chain deportations or even violation of the principle of "non-refoulement"; expresses its concern at the content of the Council Recommendation concerning a specimen bilateral agreement on the readmission of "undesirable" aliens between a Member State of the EU and a third country as well as at the conclusion of such agreements; call on the Schengen States not to return an asylum seeker to another State before determining that:

- the receiving State is a party of the 1951 Geneva Convention and the 1967 Protocol, and complies with UNHCR Executive Committee Conclusions;

- the applicant will be admitted to the receiving State under conditions of safety and respect for the individuals;

- the applicant will be protected in the receiving State against "refoulement" in the meaning of Article 33 of the 1951 Geneva Convention;

- the applicant will be provided by the receiving State with full access to a fair and efficient refugee determination procedure;

- the applicant will be treated by the receiving State in accordance with human rights standards and international principles of refugee protection;

calls for an appeals procedure, with suspensive effect, to be instituted so that applicants for asylum can rebut the presumed safety of the third country;

40. Calls on the Schengen countries to implement carrier sanctions only in a manner consistent with refugee protection principles and to be accompanied with appropriate safeguards so as not to hinder access to status determination procedures by persons in need of protection;

II. Enlargement of Schengen

41. Urges the Schengen Executive Committee to ensure that every effort will be made to enable the simultaneous integration of Italy, Greece and Austria by October 1997;

42. Expects that, as countries accede to the Schengen Agreement, every technical precaution will be taken as regards both the test system and the SIS in order to ensure that there will be no delays in implementing the Schengen Agreement in those countries;

43. Considers that the Nordic Passport Union's forty years and more of experience shows that the effective freedom of movement of persons can be applied without deploying a whole legislative arsenal under the pretext of security measures; considers that this "acquis" has to be maintained;

44. Welcomes the inclusion of the Nordic countries in the Schengen area with guarantees of the integrity of both the Nordic Passport Union and of the Schengen area; believes, however, that the inclusion in the Schengen area of the countries of the Nordic Passport Union may constitute an obstacle to any future communitization of the Schengen acquis and therefore calls for clear legal arrangements so as to overcome institutional objections;

45. Is of the opinion that the inclusion of Norway and Iceland may not set a precedent for the enlargement of Schengen to include other countries which are not members of the European Union; regrets that the cooperation agreement does not contain precise rules on the possibility of withdrawing cooperation;

46. Hopes that the parliaments of the countries of the Nordic Passport Union will, in connection with ratification, ensure that their democratic rights to information, of scrutiny and of participation are guaranteed;

III. The future of Schengen:

47. Reaffirms its position on the priorities for the IGC as set out in its resolutions of 17 May 1995 and 13 March 1996, and calls therefore Calls for the abolition of the unanimity rule for Council decisions concerning implementation of the free movement of persons and for a Community dimension to asylum policy, external borders, immigration, the fight against the drugs trade and international fraud and organized crime, judicial cooperation in civil cases and for the use of Community procedures and institutions in the third pillar;

48. Reiterates its belief that free movement of persons is one of the four freedoms which must be implemented within the EC Treaty, with judicial control exercised by the European Court of Justice and democratic control by the European Parliament;

49. Regrets that the text of the draft revision of the Treaties submitted to the Dublin European Council does not contain clear options in favour of communitizing policy on the crossing of the external frontiers, asylum, migration and visa policy and the policy on nationals of third countries; opposes any further postponement in implementing the free movement of persons and any discrimination, as regards the right to free movement, between EU citizens and nationals of third countries legally established in the Union; reiterates its belief that the free movement of persons must be applied to all people legally resident in the EU and cannot under any circumstances, be restricted to the EU citizens; regrets also the fact that, both in the new title on the free movement of persons, asylum and migration and in relation to other matters in the third pillar, no specific proposals are made either to strengthen the Commission's right of initiative, Parliament's role in the decision-making process and democratic and judicial scrutiny of the policy implemented, or as regards the power of the Court of Justice or the introduction of majority voting in the Council;;

50. Is of the opinion that both the European Parliament and the national parliaments must be able to monitor the operation of the CSA;

51. Is of the opinion that the national parliaments of the Schengen countries and the European Parliament can improve democratic controls on the working of the CSA by coordinating their action;

52. Instructs its competent committee to establish a permanent consultative group with the national parliaments of all Schengen countries, including those of the Nordic Passport Union, on monitoring the activities of Schengen;

53. Repeats its call for the Court of Justice to be given powers to settle disputes arising from interpretation of the Schengen Treaty, just as it should be given competence for all instruments established in the context of the third pillar;

54. Proposes that the Schengen secretariat be included in the services of the Commission pending the requisite integration of Schengen in the European Union;

55. Reaffirms its view that the free movement of persons in the EU is covered by Article 7a of the Treaty, and calls upon the Commission and the Council to take, as a matter of urgency, the steps needed in order that Article 7a may be fully implemented without further delays;

56. Is of the opinion that possible integration of Schengen in the Community framework, either via a protocol to the Treaty on European Union or through inclusion in the third pillar, is possible only if integration involves significant progress towards the application of Community procedures, with provision for a right of initiative for the Commission, greater involvement of Parliament in the creation of the legislative framework and in monitoring implementation and judicial controls by the European Court of Justice;******

57. Instructs its President to forward this resolution to the Commission, the Council, the Executive Committee of Schengen and the governments and parliaments of the Member States of the Union and the governments and parliaments of Norway and Iceland.

(1) Schengen Central Group - SCH/C(96) 17 rev. (2) Resolution of 23 November 1989 on the signing of the Supplementary Schengen Agreement (OJ C 323/89, p. 98) Resolution of 15 March 1990 on the free movement of persons in the internal market (OJ C 96/90, p. 274) Resolution of 14 June 1990 on the Schengen Agreement, the Convention on the right of asylum and the status of refugees as defined by the ad hoc Group on Immigration (OJ C175/90, p. 170) Resolution of 19 November 1992 on the abolition of controls at internal borders and free movement of persons within the European Community (OJ C 337/92, p. 211) Resolution of 19 November 1992 on the entry into force of the Schengen Agreement (OJ C 337/92, p. 214) Resolution of 22 January 1993 on the setting up of Europol (OJ C 42/93, p. 250) Resolution of 15 July 1993 on free movement of persons pursuant to Article 8a of the EEC Treaty (OJ C 255/93, p. 183) Resolution of 15 July 1993 on European immigration policy (OJ C 255/93, p. 184) Resolution of 10 February 1994 on the Schengen Agreements (OJ C 61/94, p. 185) Resolution of 20 January 1994 on participation by the European Parliament in international agreements by the Member States and the Union on cooperation in the fields of justice and home affairs (OJ C 44/94, p. 180) Resolution of 1 May 1995 on the Schengen Agreement and political asylum (OJ C 109/95, p. 169) Resolution of 20 June 1996 on free movement of persons within the Nordic Passport Union, the European Economic Area and the Schengen countries (OJ C 198/96, p. 168) (3) Resolution of 13 March 1996 embodying (i) Parliament's opinion on the convening of the Intergovernmental Conference, and (ii) an evaluation of the work of the Reflection Group and definition of the political priorities of the European Parliament with a view to the Intergovernmental Conference