RESOLUTION A3-0336/92

Resolution on the entry into force of the Schengen Agreements

The European Parliament,

- having regard to Articles 3, 5, 7, 8a, 100, 100a, 169, 175, 229 and 235 of the EEC Treaty,

- having regard to the Political Declaration of the Governments of the Member States on the free movement of persons attached to the Single European Act,

- having regard to the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, which has been ratified by all EC Member States,

- having regard to the 1951 Geneva Convention relating to the Status of Refugees and the New York supplementary protocol of 1967, which have been ratified by all EC Member States,

- having regard to Annex 9 of the 1944 Chicago Convention on International Civil Aviation, under which, barring grave negligence, sanctions may not be imposed on airlines for carrying passengers with inadequate documents,

- having regard to the report of the Committee of Inquiry of the French Senate on the Convention applying the Schengen Agreement,

- having regard to the debates of the Netherlands Lower House, the pledges made by the Netherlands Government and the Lower House motion to wind up the debate,

- having regard to its resolutions of:

- 12 March 1987, on the right of asylum,

- 15 March 1989, on the 1989 Commission Programme, particularly paragraphs 10 and 11,

- 23 November 1989, on the signing of the supplementary Schengen Agreement,

- 15 March 1990, on the free movement of persons within the internal market,

- 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 ,

- 22 February 1991, on the harmonization of policies on entry to the territories of the EC Member States with a view to the free movement of persons [Article 8a of the EEC Treaty] and the drawing up of an intergovernmental convention among the twelve Member States of the EC,

- 14 June 1991, on Union citizenship, particularly paragraphs 10, 11, 12 and 13,

- 10 July 1991, on the European Council meeting in Luxembourg on 28 and 29 June 1991, particularly paragraphs I.4 and I.10,

- 13 September 1991, on the free movement of persons and security in the European Community,

- 7 April 1992, on the results of the intergovernmental conferences, particularly paragraph 16(e),

- 9 July 1992, on the completion of the internal market, particularly recitals C, D and E and paragraphs 2, 9, 10, 23 and 31,

- having regard to Rule 121 of its Rules of Procedure,

- having regard to the report of the Committee on Civil Liberties and Internal Affairs (A3-0288/92),

- having regard to the second report of the Committee on Civil Liberties and Internal Affairs (A3-0336/92),

A. Whereas the EEC Treaty provides for the free movement of persons, which must be a reality by 31 December 1992; whereas, pursuant to Article 175 of the EEC Treaty, an action may be brought before the Court of Justice if the Council and the Commission fail adequately to implement the free movement of persons laid down in Article 8a and to take the decisions provided for by the EEC Treaty to that end;

B. whereas the EC Member States have ratified the 1951 Geneva Convention and the New York supplementary protocol of 1967;

C. whereas the EC Member States have acceded individually to the European Convention on Human Rights and the European Community ought to do so;

D. whereas nine of the EC Member States intend to implement the Convention applying the Schengen Agreement, which means that their citizens, and also persons wishing to enter their territory, will be subject to additional rights and duties relating to the free movement of persons and that the citizens of non-Schengen countries will be treated differently from the citizens of other EC Member States;

E. whereas the Convention applying the Schengen Agreement must ultimately be replaced by Community rules, due account being taken of the many reservations about the gaps and imperfections in this convention;

F. whereas numerous working parties are already in the process of drawing up provisions and documents for the implementation of the Convention applying the Schengen Agreement, the buildings for the Schengen Information System in Strasbourg have been constructed, a provisional committee of control for the SIS has already been appointed and this is happening without one iota of democratic control and before all the parliaments of the Schengen Member States have ratified the Convention applying the Schengen Agreement,

G. whereas the many international agreements, international cooperation structures and bodies for international judicial and police cooperation have been instrumental in creating a deficit in terms of human rights and democracy, and whereas the citizens affected cannot be adequately informed about their rights and duties in this field,

H. whereas it is necessary to proceed as rapidly as possible from the experimental, constitutive stage to a binding arrangement in which the principles of parliamentary supervision, judicial review and public information are formally sanctioned,

1. Considers that the Convention applying the Schengen Agreement must be regarded as an excellent testing ground for Community settlement of the matters dealt with in the agreement and an opportunity to make the European Parliament and national parliaments aware of these matters;

2. Considers that the free movement of persons is an essential component of the internal market;

3. Reiterates, therefore, its call for the Commission to submit to the Council and Parliament as soon as possible, and in any event within the period of time laid down in Article 175 of the EEC Treaty, appropriate proposals for replacing the provisions of the Convention applying the Schengen Agreement with Community law, and calls on the Council to take the necessary decisions;

4. Calls on the Commission and the Council to take into account in this decision Parliament's criticisms of the matter, as set out inter alia in the explanatory statements of reports A3-0199/91 and A3-0336/92;

5. Reserves the right, pursuant to Article 175 of the EEC Treaty, to bring an action against the Council and the Commission for failure to act;

6. Calls for the harmonization of visa and asylum policy within the Community and a single, Community-wide interpretation of the provisions of the relevant international conventions;

7. Fears that current practice, whereby the free movement of persons, the elimination of controls on individuals at internal borders and the implementation of compensatory measures are arranged through intergovernmental agreements to which not all of the twelve Member States are always party, will result in discrimination between EC citizens on nationality grounds and discrimination against non-EC citizens living in the various Member States;

8. Calls on the Commission to work for the application of the principle of equal treatment and freedom of movement to all citizens, including those from third countries, in the Community, as set out in the Convention applying the Schengen Agreement;

9. Regrets that the Convention applying the Schengen Agreement makes no reference whatsoever to the European Convention for the protection of Human Rights and Fundamental Freedoms; notes that Article 28 of the Convention applying the Schengen Agreement expressly confirms the obligations deriving from the Geneva Convention and the New York Protocol as well as the obligation to cooperate with the UN Commission for Refugees;

10. Calls on the Commission and Council to adopt a democratic and humanitarian asylum policy capable of dealing with the international dimension of the problems associated with the refugee issue and be guided by the UN Convention of 1951, the Supplementary Protocol of 1967 and its aforementioned resolution of 12 March 1987;

11. Calls for the provisions of the Convention applying the Schengen Agreement obliging carriers to carry out checks on passengers to be applied in accordance with the current ICAO conventions;

12. Considers that the provisions of the Convention applying the Schengen Agreement on the liability of carriers whose passengers are not in possession of the required documents contravene the provisions of Annex 9 of the 1944 Chicago Convention on International Civil Aviation, unless gross negligence on the part of the carriers can be proved;

13. Considers that the provisions on police cooperation in the Convention applying the Schengen Agreement are too vaguely worded and that if putting them into practice is left to bilateral agreements, the result will be legal uncertainty;

14. Considers that the possibilities of crime prevention by means of administrative cooperation between police forces are not fully exploited and hopes that the Schengen framework will lead to better use being made of existing instruments;

15. Considers that the provisions of the Convention applying the Schengen Agreement on mutual judicial assistance, extradition and the transfer of execution of sentences do not take sufficient account of the provisions laid down in the Council of Europe's conventions, and that the latter provisions should therefore be implemented unconditionally;

16. Considers that the provisions on mutual judicial assistance in criminal cases ignore the need to extend international legal aid to individuals whose particulars are entered in the system;

17. Calls on the Commission to ensure, in collaboration with the European Parliament, that data protection is included among the responsibilities of the European Ombudsman;

18. Considers that the provisions of the Convention applying the Schengen Agreement on the transfer of the execution of sentences do not take the prisoners' interests sufficiently into account, as the consent of the sentenced person is not required for such a transfer;

19. With regard to the rule in the Convention applying the Schengen Agreement laying down the criteria for deciding which Member State is to be responsible for handling asylum requests, underlines the need for the Dublin Agreement to be ratified as soon as possible by all Member States, and refers in this connection to the provisions of Article 38 of the Convention applying the Schengen Agreement;

20. Considers that the vagueness of a number of definitions and the broad interpretation which may be given to the various categories of individuals recorded in the SIS may weaken the protection of privacy and legal protection for persons whose particulars are entered in the system;

21. Calls for provision to be made for international judicial monitoring of the implementation of the Convention applying the Schengen Agreement, and considers the Court of Justice in Luxembourg to be the appropriate judicial body for this purpose;

22. In view of the liberal and widespread use of the notions of public order and national security, calls in particular for the adoption of a uniform interpretation referring to the case law of the Court of Justice;

23. Is afraid that the very wide special powers and the general duties of the Executive Committee might give rise to a number of fears and certain difficulties with regard to constitutional law in various countries and that it would hardly be possible for them to have direct effect;

24. Regrets that the Ministers of the Schengen Group consider that the list of countries whose citizens are subject to the visa requirement must not be published;

25. Is afraid that the permanent working party set up under Article 70 to combat drug-related crime threatens to overlap with the many existing and planned initiatives and will aggravate further the uncertainty over European drugs policy;

26. Calls on the acting president of the Schengen Group to give the national parliaments and the European Parliament, before decision-making is completed, access to the implementation documents which are currently being drawn up by various working parties, and to produce regular reports on the implementation of the provisions of the agreements;

27. Welcomes the recommendation of the Council of State of the Kingdom of the Netherlands on the Convention applying the Schengen Agreement and calls on the national parliaments of the Member States to examine the Convention in detail;

28. Calls on the national parliaments to consider the European Parliament's criticisms of the Convention applying the Schengen Agreement and, inter alia, to demand that their governments provide the necessary guarantees for democratic control of implementation of the Convention - particularly of the activities of the Executive Committee established in Title VII of the Convention - public access to the committee's decisions, and better legal protection and legal aid for citizens affected by implementation of the agreements (by, inter alia, declaring the European Court of Justice competent to give preliminary rulings pursuant to Article 177 of the EEC Treaty);

29. Instructs its President to forward this resolution to the Commission, the Council, the Presidency of the Schengen Group, the governments and parliaments of the Member States and the UN High Commissioner for Refugees.