TREATY OF AMSTERDAM
SECTION I
FREEDOM, SECURITY
AND JUSTICE
CHAPTER 2: PROGRESSIVE
ESTABLISHMENT OF AN AREA OF FREEDOM, SECURITY AND JUSTICE
Over-arching objectives of Treaty provisions on freedom,
security and justice on freedom, security and justice
Amend Article B, fourth indent, in the TEU
- to maintain and develop the Union as an area of freedom,
security and justice, in which the free movement of persons is assured in conjunction with
appropriate measures with respect to external borders controls, immigration, asylum and the
prevention and combating of crime.
Free movement of persons, asylum and immigration
New Title in the TEC
Article A
In order to establish progressively an area of freedom, security
and justice, the Council
shall adopt:
(a) within a period of five years after the entry into force of
this Treaty, measures aimed
at ensuring the free movement of persons in accordance with
Article 7a, in conjunction with
directly related flanking measures with respect to external
borders controls, asylum and
immigration, in accordance with the provisions of Article B(2)
and (3), C(1)(a) and (2)(a),
and measures to prevent and combat crime in accordance with the
provisions of Article
K.3(e) of the Treaty on European Union;
(b) other measures in the fields of asylum, immigration and
safeguarding the rights of
third country nationals, in accordance with the provisions of
Article C;
(c) measures in the field of judicial cooperation in civil
matters as provided for in Article E;
(d) appropriate measures to encourage and strengthen
administrative cooperation, as provided for in Article F;
(e) measures in the field of police and judicial cooperation in
criminal matters aimed at a high level of security by preventing and combating crime within
the Union in accordance with the provisions of the Treaty on European Union.
Declaration on the preservation of the level of security provided
by the Schengen acquis
The Conference agrees that measures to be adopted by the Council,
which will have the effect of replacing provisions on the abolition of checks at
common borders contained in the 1990 Schengen Convention, should provide at least the same
level of protection and security as under the aforementioned provisions of the Schengen
Convention.
Article Bfootnote 3 (1)
The Council, acting in accordance with the procedure referred to
in Article G, shall, within a period of five years after the entry into force of this Treaty,
adopt:
1. Measures with a view to ensuring, in compliance with Article
7a, the absence of any controls on persons, be they citizens of the Union or nationals
of third countries, when crossing internal borders.
2. Measures on the crossing of the external borders of the Member
States which shall establish:
(a) standards and procedures to be followed by Member States in
carrying out checks on persons at such borders;
(b) rules on visas for intended stays of no more than three
months, including:
(i) the list of third countries whose nationals must be in
possession of visas when crossing the external borders and those whose nationals are
exempt from that requirement;
(ii) the procedures and conditions for issuing visas by Member
States;
(iii) a uniform format for visas;
(iv) rules on a uniform visa.
3. Measures setting out the conditions under which the nationals
of third countries shall have the freedom to travel within the territory of the Member
States during a period of no more than three months.
Protocol on External Relations of the
Member States with regard to the Crossing of
External Borders
THE HIGH CONTRACTING PARTIES,
TAKING INTO ACCOUNT the need of the Member States to ensure
effective controls at their external borders, in cooperation with third countries where
appropriate,
HAVE AGREED upon the following provisions, which shall be annexed
to the Treaty establishing the European Community:
The provisions on the measures on the crossing of external
borders included in Article B(2)(a) of Title ... shall be without prejudice to the
competence of Member States to negotiate or conclude agreements with third countries as long as
they respect Community law and other relevant international agreements.
Declaration to the Final Act on Article B(2)(b)
The Conference agrees that foreign policy considerations shall be
taken into account in the application of Article B(2)(b).
Article C
The Council, acting in accordance with the procedure referred to
in Article G, shall, within a period of five years after the entry into force of this Treaty,
adopt:
1. Measures on asylum, in accordance with the Convention of 28
July 1951, the Protocol of 31 January 1967 relating to the Status of Refugees and other
relevant treaties, within the following areas:
(a) criteria and mechanisms for determining which Member State is
responsible for considering an application for asylum submitted by a third
country national in one of the Member States;
(b) minimum standards on the reception of asylum seekers in
Member States;
(c) minimum standards with respect to the qualification of third
country nationals as refugees;
(d) minimum standards on procedures in Member States for granting
or withdrawing refugee status.
2. Measures on refugees and displaced persons within the
following areas:
(a) minimum standards for giving temporary protection to
displaced persons from third countries who cannot return to their country of origin and for
persons who otherwise need international protection;
(b) promoting a balance of effort between Member States in
receiving and bearing the consequences of receiving refugees and displaced persons.
3. Measures on immigration policy within the following areas:
(a) conditions of entry and residence, and standards on
procedures for the issue by Member States of long term visas and residence permits, including
those for the purpose of family reunion;
(b) illegal immigration and illegal residence, including
repatriation of illegal residents.
4. Measures defining the rights and conditions under which
nationals of third countries who are legally resident in a Member State may reside in other
Member States.
5. Measures adopted by the Council pursuant to paragraphs 3 and 4
shall not prevent any Member State from maintaining or introducing in the areas
concerned national provisions which are compatible with this Treaty and with international
agreements.
Measures to be adopted pursuant to paragraphs 2(b), 3(a) and 4
shall not be subject to the five year period referred to above.
Declaration to the Final Act on Article C(3)(a)
The Conference agrees that Member States may negotiate and
conclude agreements with third countries in the domains covered by Article C(3)(a) as long
as such agreements respect Community law.
Article D
1. This Title shall not affect the exercise of the
responsibilities incumbent upon Member States with regard to the maintenance of law and order and the
safeguarding of internal security.
2. In the event of one or more Member States being confronted
with an emergency situation characterised by a sudden inflow of nationals from a
third country and without prejudice to paragraph 1, the Council may, acting by qualified
majority on a proposal from the Commission, adopt provisional measures of a duration not
exceeding six months for the benefit of the Member States concerned.
Declaration on the responsibilities of Member States under
Article D(1)
The Conference agrees that Member States may take into account
foreign policy considerations when exercising their responsibilities under
Article D(1).
Article E
Measures in the field of judicial cooperation in civil matters
having cross-border implications, to be taken in accordance with Article G and
insofar as necessary for the proper functioning of the internal market, shall include:
(a) improving and simplifying:
- the system for cross-border service of judicial and
extrajudicial documents;
- cooperation in the taking of evidence;
- the recognition and enforcement of decisions in civil and
commercial cases, including extrajudicial cases;
(b) promoting the compatibility of the rules applicable in the
Member States concerning the conflict of laws and of jurisdiction;
(c) eliminating obstacles to the good functioning of civil
proceedings, if necessary by promoting the compatibility of the rules on civil procedure
applicable in the Member States.
Declaration to the Final Act
Measures adopted pursuant to this Article shall not prevent any
Member State from applying its constitutional rules relating to freedom of the
press and freedom of expression
in other media.
Article F
The Council, acting in accordance with the procedure referred to
in Article G, shall take measures to ensure cooperation between the relevant departments
of the administrations of the Member States in the areas covered by this Title, as well as
between those departments and the Commission.
Declaration to the Final Act
Consultations shall be established with the United Nations High
Commissioner for Refugees and other relevant international organisations on
matters relating to asylum policy.
Article G
1. During a transitional period of five years following the entry
into force of this Treaty, the Council shall act unanimously on a proposal from the
Commission or on an initiative of a Member State and after consulting the European Parliament.
2. After this period of five years:
- the Council shall act on proposals from the Commission; the
Commission shall examine any request made by a Member State that it submit a
proposal to the Council;
- the Council, acting unanimously after consulting the European
Parliament, shall take a decision with a view to making all or parts of the areas
covered by this Title governed by the procedure referred to in Article 189b and adapting the
provisions relating to the powers of the Court of Justice.
3. By derogation from the provisions of paragraphs 1 and 2:
- measures referred to in Article B(2)(b) (i) and (iii) shall,
from the entry into force of this Treaty, be adopted by the Council acting by a qualified
majority on a proposal from the Commission and after consulting the European Parliament;
- measures referred to in Article B(2)(b) (ii) and (iv) shall,
after a period of five years following the entry into force of this Treaty, be adopted by the
Council acting in accordance with the procedure referred to in Article 189b.
Article H
1. The provisions of Article 177 shall apply to this Title under
the following circumstances and conditions: where a question on the interpretation of this Title
or on the validity or interpretation of acts of the institutions of the Community based on this Title is
raised in a case pending before a court or a tribunal of a Member
State against whose decisions there is no judicial remedy under
national law, that court or tribunal shall, if it considers that
a decision on the question is necessary to enable it to give
judgement, request the Court of Justice to give a ruling thereon.
2. In any event, the Court of Justice shall not have jurisdiction
to rule on any measure or decision taken pursuant to Article B(1) relating to the maintenance of law
and order and the safeguarding of internal security.
3. The Council, the Commission or a Member State may request the
Court of Justice to give a ruling on a question of interpretation of this Title or of acts
of the institutions of the Community based on this Title. The
ruling given by the Court of Justice in response to such a
request shall not apply to judgements of courts or tribunals of
the Member States which have become res judicata.
Article I
The application of this Title shall be subject to the provisions
of Protocol Y on the position of the United Kingdom and Ireland and to Protocol Z on the position of
Denmark, without prejudice to Protocol X on the application of certain aspects of Article 7a to
the United Kingdom and to Ireland.
Protocol Y on the position of the United Kingdom and
Ireland
THE HIGH CONTRACTING PARTIES
DESIRING to settle certain questions relating to the United
Kingdom and Ireland
HAVING REGARD to Protocol X on the application of certain aspects
of Article 7a of the TEC to the United Kingdom and to Ireland
HAVE AGREED upon the following provisions which shall be annexed
to the Treaty establishing the European Community and the Treaty
on European Union:
Article 1
Subject to Article 3, the United Kingdom and Ireland shall not
take part in the adoption by the Council of proposed measures pursuant to Title [ ] of the TEC. By
way of derogation from Article 148(2) and 189a(1) of the TEC, a qualified majority shall be
defined as the same proportion of the weighted votes of the members of the Council concerned as laid
down in Article 148(2). The unanimity of the members of the Council, with the exception
of
the representative of the governments of the United Kingdom and
Ireland, shall be necessary for decisions of the Council which
must be adopted unanimously.
Article 2
In consequence of Article 1 and subject to Articles 3, 4 and 6,
none of the provisions of Title [ ] of the TEC, no measure adopted pursuant to that Title, no provision
of any international agreement concluded by the Community pursuant to that Title, and no
decision of the Court of Justice interpreting any such provision or measure shall be binding upon
or applicable in the United Kingdom or Ireland; and no such provision, measure or decision shall in
any way affect the competences, rights and obligations of those States; and no such provision, measure
or decision shall in any way affect the acquis communautaire nor form part of Community law as they apply
to the United Kingdom or Ireland.
Article 3
1. The United Kingdom or Ireland may notify the President of the
Council in writing, within three months after a proposal or initiative has been presented to the
Council pursuant to Title [ ] of the TEC, that it wishes to take part in the adoption and application
of any such proposed measure, whereupon that State shall be entitled to do so. By way of
derogation from Article 148(2) and 189a(1) of the TEC, a qualified majority shall be defined as the
same proportion of the weighted votes of the members of the Council concerned as laid down in
Article 148(2).
The unanimity of the members of the Council, with the exception
of a member which has not made such a notification, shall be necessary for decisions of the
Council which must be adopted unanimously. A measure adopted under this paragraph shall be
binding upon all Member States which took part in its adoption.
2. If after a reasonable period of time a measure referred to in
paragraph 1 cannot be adopted with the United Kingdom or Ireland taking part, the Council may adopt
such measure in accordance with Article 1 without the participation of the United Kingdom or Ireland. In that case
Article 2 applies.
Article 4
The United Kingdom or Ireland may at any time after the adoption
of a measure by the Council pursuant to Title [ ] of the TEC notify its intention to the
Council and to the Commission that it wishes to accept such measure. In that case, the procedure provided for
in Article 5a(3) of the TEC shall apply mutatis mutandis.
Article 5
A Member State which is not bound by a measure adopted pursuant
to Title [ ] of the TEC shall bear no financial consequences of that measure other than
administrative costs entailed for the institutions.
Article 6
Where, in cases referred to in this Protocol, the United Kingdom
or Ireland is bound by a measure adopted by the Council pursuant to Title [ ] of the TEC, the
relevant provisions of that Treaty, including Article H, shall apply to that State in relation to
that measure.
Article 7
Articles 3 and 4 shall be without prejudice to the Schengen
Protocol.
Article 8
Ireland may notify the President of the Council in writing that
it no longer wishes to be covered by the terms of this Protocol.
In that case, the normal Treaty provisions will apply to Ireland.
Protocol X on the application of certain aspects of
Article 7a of the TEC to the United Kingdom and to Ireland
THE HIGH CONTRACTING PARTIES
DESIRING to settle certain questions relating to the United
Kingdom and Ireland,
HAVING REGARD to the existence for many years of special travel
arrangements between the UK and Ireland,
HAVE AGREED upon the following provisions, which shall be annexed
to the Treaty establishing the European Community and to the
Treaty on European Union:
Article 1
The United Kingdom shall be entitled, notwithstanding Article 7a
of the Treaty establishing the European Community, any other provision of this Treaty or of the
Treaty on European Union, any measure adopted under these Treaties, or any international
agreement concluded by the Community or by the Community and its
Member States with one or more third States, to exercise at its
frontiers with other Member States such controls on persons seeking to enter the United Kingdom as it may consider necessary
for the purpose:
(a) of verifying the right to enter the United Kingdom of
citizens of States which are Contracting Parties to the Agreement on the European Economic Area and of
their dependants exercising rights conferred by Community law, as well as citizens of other States
on whom such rights have been conferred by an agreement to which the UK is bound; and
(b) of determining whether or not to grant other persons
permission to enter the United Kingdom
Nothing in Article 7a or in any other provision of these Treaties
or in any measure adopted under them shall prejudice the right of the United Kingdom to adopt or
exercise any such controls. References to the United Kingdom in this Article shall include
territories for whose external relations the United Kingdom is
responsible.
Article 2
The United Kingdom and Ireland may continue to make arrangements
between themselves relating to the movement of persons between
their territories ("the Common Travel Area"), while
fully respecting the rights of persons referred to in Article
1(a). Accordingly, as long as they maintain such arrangements,
the provisions of Article 1 shall apply to Ireland with the same
terms and conditions as for the United Kingdom. Nothing in
Article 7a, in any other provision of the Treaties referred to
above or in any measure adopted under them, shall affect any such
arrangements.
Article 3
The other Member States shall be entitled to exercise at their
frontiers or at any point of entry into their territory such controls on persons seeking to enter their
territory from the United Kingdom or any territories whose external relations are under their
responsibility for the same purposes stated in Article 1, or from Ireland as long as the provisions of Article 1
apply to Ireland.
Nothing in Article 7a or in any other provision of these treaties
or in any measure adopted under them shall prejudice the right of the other Member States to
adopt or exercise any such controls.
Declaration to the Final Act by Ireland
Ireland declares that it intends to exercise its right under
Article 3 of Protocol Y to take part in the adoption of measures pursuant to Title [ ] of the TEC to
the maximum extent compatible with the maintenance of its Common Travel Area with
the United Kingdom. Ireland recalls that its participation in Protocol X reflects its
wish to maintain its Common Travel Area with the United Kingdom in order to maximise freedom
of movement into and
out of Ireland.
POSITION OF DENMARK
In the Protocol integrating the Schengen acquis into the
framework of the European Union:
* a new additional fourth paragraph will be inserted which reads
as follows:
TAKING INTO ACCOUNT the special position of Denmark,
* a new Article Ba will be inserted which reads as follows:
Following the determination referred to in Article B(1), second
subparagraph, Denmark shall maintain the same rights and obligations in relation to the other
signatories [parties] to the Schengen agreements, as before the said determination with regard to those
parts of the Schengen acquis that are determined to have legal base in [new Title TEC].
With regard to those parts of the Schengen acquis that are
determined to have legal base in Title VI of the TEU, Denmark shall continue to have the same rights and
obligations as the other signatories [parties] to the Schengen agreements.
Protocol Z on the position of Denmark
THE HIGH CONTRACTING PARTIES,
RECALLING the Decision of the Heads of State or Government,
meeting within the European Council at Edinburgh on 12 december 1992, concerning certain
problems raised by Denmark on the Treaty on European Union,
HAVING NOTED the position of Denmark with regard to Citizenship,
Economic and Monetary Union, Defence Policy and Justice and Home Affairs as laid down
in the Edinburgh decision,
BEARING IN MIND Article Ba of the Protocol integrating the
Schengen acquis into the framework of the European Union,
HAVE AGREED upon the following provisions, which shall be annexed
to the Treaty establishing the European Community and to the
Treaty on European Union:
PART I
Article 1
Denmark shall not take part in the adoption by the Council of
proposed measures pursuant to Title [] of the TEC. By way of
derogation from Article 148(2) and 189a(1) of the TEC, a
qualified majority shall be defined as the same proportion of the weighted
votes of the members of the Council concerned as laid down in
Article 148(2). The unanimity of the members of the Council, with
the exception of the representative of the government of Denmark,
shall be necessary for the decisions of the Council which must be
adopted unanimously.
Article 2
None of the provisions of Title [ ] of the TEC, no measure
adopted pursuant to that Title, no provision of any international agreement concluded by the
Community pursuant to that Title, and no decision of the Court of Justice interpreting any such provision
or measure shall be binding upon or applicable in Denmark; and no such provision, measure or decision
shall in any way affect the competences, rights and obligations of Denmark; and no such
provision, measure or decision shall in any way affect the acquis communautaire nor form part of
Community law as they apply to Denmark.
Article 3
Denmark shall bear no financial consequences of measures referred
to in Article 1, other than administrative costs entailed for the institutions.
Article 4
Articles 1, 2 and 3 shall not apply to measures determining the
third countries whose nationals must be in possession of a visa when crossing the external borders of
the Member States, or measures relating to a uniform format for visasfootnote 4 (1).
Article 5
1. Denmark shall decide within a period of 6 months after the
Council has decided on a proposal or initiative to build upon the Schengen acquis under the
provisions of title [ ] of the TEC, whether it will implement
this decision in its national law. If it decides to do so, this
decision will create an obligation under international law between Denmark and the other
member States referred to in Article A of the Protocol integrating the Schengen acquis into
the framework of the European Union as well as with Ireland or
the United Kingdom if those Member States take part in the areas
of cooperation in question.
2. If Denmark decides not to implement a decision of the Council
as referred to in paragraph 1, the Member States referred to in Article A of the Protocol
integrating the Schengen acquis into the framework of the European Union will consider appropriate
measures to be taken.
PART II
Article 6
With regard to measures adopted by the Council in the field of
Articles J.3(1) and J.7 of the Treaty on European Union, Denmark does not participate in the
elaboration and the implementation of decisions and actions of the Union which have defence
implications, but will not prevent the development of closer cooperation between Member States in this
area. Therefore Denmark shall not participate in their adoption. Denmark shall not be obliged
to contribute to the financing of operational expenditure arising from such measures.
PART III
Article 7
At any time Denmark may, in accordance with its constitutional
requirements, inform other Member States that it no longer wishes
to avail itself of all or part of this Protocol. In that event,
Denmark will apply in full all relevant measures then in force
taken within the framework of the European Union.
Title VI of the TEU
Provisions on police and judicial cooperation in criminal matters
New Article K.1 in the TEU
Without prejudice to the powers of the European Community, the
Union's objective shall be to provide citizens with a high level of safety within an area of
freedom, security and justice by developing common action among the Member States in the fields of
police and judicial cooperation in criminal matters and by preventing and combating racism and
xenophobia.
That objective shall be achieved by preventing and combating
crime, organized or otherwise, in particular terrorism, trafficking in persons and offences against
children, illicit drug trafficking and illicit arms trafficking,
corruption and fraud, through:
- closer cooperation between police forces, customs authorities
and other competent authorities in the Member States, both directly and, through Europol, in
accordance with the provisions of Article K.2 and K.4;
- closer cooperation between judicial and other competent
authorities of the Member States in accordance with the provisions of Articles K.3(a) to (d) and K.4;
- approximation, where necessary, of rules on criminal matters in
the Member States, in accordance with the provisions of Article K.3(e).
New Article K.2 in the TEU
1. Common action in the field of police cooperation shall
include: (a) operational cooperation between the competent authorities,
including the police, customs and other specialized law enforcement services of the Member States
in relation to the prevention, detection and investigation of criminal offences;
(b) the collection, storage, processing, analysis and exchange of
relevant information, including information held by law enforcement agencies of reports on
suspicious financial transactions, in particular through Europol, subject to appropriate provisions on
the protection of personal data;
(c) cooperation and joint initiatives in training, the exchange
of liaison officers, secondments, the use of equipment, and forensic research;
(d) the common evaluation of particular investigative techniques
in relation to the detection of serious forms of organized crime.
2. The Council shall promote cooperation through the European
Police Office (Europol) and shall in particular, within a period of five years after the date of
entry into force of this Treaty:
(a) enable Europol to facilitate and support the preparation, and
to encourage the coordination and carrying out of specific investigative actions by the
competent authorities of the Member States, including operational
actions of joint teams comprising representatives of Europol in a
support capacity;
(b) adopt measures allowing Europol to ask the competent
authorities of the Member States to conduct and coordinate their investigations in specific cases and
to develop specific expertise which may be put at the disposal of Member States to assist them in
investigating cases of organized crime;
(c) promote liaison arrangements between
prosecuting/investigating officials specialising in the fight against organised crime in close cooperation with Europol;
(d) establish a research, documentation and statistical network
on cross-border crime.
Declaration to the Final Act on Article K.2
Action in the field of police cooperation under Article K.2,
including activities of Europol, shall be subject to appropriate judicial review by the competent
national authorities in accordance with rules applicable in each Member State.
New Article K.3 in the TEU
Common action on judicial cooperation in criminal matters shall
include:
(a) facilitating and accelerating cooperation between competent
ministries and judicial or equivalent authorities of the Member States in relation to proceedings and
the enforcement of decisions;
(b) facilitating extradition between Member States;
(c) ensuring compatibility in rules applicable in the Member
States, as may be necessary to improve such cooperation;
(d) preventing conflicts of jurisdiction between Member States;
(e) progressively adopting measures establishing minimum rules
relating to the constituent elements of criminal acts and to penalties in the fields of organized
crime, terrorism and drug trafficking.
Declaration to the Final act on Article K.3(e).
The Conference agrees that the provisions of Article K.3(e) shall
not have as a consequence to oblige a Member State whose legal system does not provide for
minimum sentences to adopt them.
New Article K.4 in the TEU
The Council shall lay down the conditions and limitations under
which the competent authorities referred to in Articles K.2 and K.3 may operate in the territory
of another Member State in liaison and in agreement with the authorities of that State.
Article K.5 in the TEU (former Article K.2)
This Title shall not affect the exercise of the responsibilities
incumbent upon Member States with regard to the maintenance of law and order and the safeguarding
of internal security.
Article K.6 in the TEU (former Article K.3)
1. In the areas referred to under this Title, Member States shall
inform and consult one another within the Council with a view to coordinating their action. To
that end, they shall establish collaboration between the relevant departments of their
administrations.
2. The Council shall take measures and promote cooperation, using
the appropriate form and procedures as set out in this Title, contributing to the pursuit
of the objectives of the Union. To that end, acting unanimously on an initiative of any Member State or
of the Commission, the Council may:
(a) adopt common positions defining the approach of the Union to
a particular matter;
(b) adopt framework decisions for the purpose of approximation of
the laws and regulations of the Member States; framework decisions shall be binding upon the
Member States as to the result to be achieved but shall leave to
the national authorities the choice of form and methods; they
shall not entail direct effect;
(c) adopt decisions for any other purpose consistent with the
objectives of this Title, excluding any approximation of the laws and regulations of the Member
States. These decisions shall be binding and shall not entail direct effect; the Council, acting
by a qualified majority, shall adopt measures necessary to implement those decisions at the level of
the Union;
(d) establish conventions which it shall recommend to the Member
States for adoption in accordance with their respective constitutional requirements.
Member States shall begin the procedures applicable within a time limit to be set by the
Council.
Unless they provide otherwise, conventions shall, once adopted by
at least half of the Member States, enter into force for those Member States. Measures
implementing conventions shall be adopted within the Council by a majority of two thirds of the
High Contracting Parties.
3. Where the Council is required to act by a qualified majority,
the votes of its members shall be weighted as laid down in Article 148(2) of the Treaty
establishing the European Community, and fortheir adoption, acts
of the Council shall require at least 62 votes in favour, cast by
at least 10
members.
4. For procedural questions, the Council shall act by a majority
of its members.
Declaration to the Final Act on Article K.6(2)
The Conference agrees that initiatives for measures referred to
in Article K.6(2) and acts adopted by the Council thereunder shall be published in the
Official Journal of the European Communities, in accordance with the relevant rules of procedure
of the Council and the Commission.
New Article K.7 of the TEU
1. The Court of Justice of the European Communities shall have
jurisdiction, subject to the conditions laid down in this Article, to give preliminarily
rulings on the validity and interpretation of framework decisions and decisions, on the interpretation of
conventions established under this Title and on the validity and interpretation of the measures
implementing them.
2. By a declaration made at the time of the signing of this
Treaty or any time thereafter, any Member State shall be able to accept a jurisdiction of the Court
of Justice to give preliminary rulings as specified in paragraph
1.
3. Where a Member State has made a declaration pursuant to
paragraph 2 of this Article:
(a) any court or tribunal of that State against whose decisions
there is no judicial remedy under national law may request the Court of Justice to give a
preliminary ruling on a question raised in a case pending before it and concerning the validity or
interpretation of an act referred to in paragraph 1 if that court or tribunal considers that a decision
on the question is necessary to enable it to give judgement, or
(b) any court or tribunal of that State may request the Court of
Justice to give a preliminary ruling on a question raised in a case pending before it and concerning
the interpretation or validity of an act referred to in paragraph
1 if that court or tribunal considers that a decision on the
question is necessary to enable it to give judgement.
4. Any Member State, whether or not it has made a declaration
pursuant to paragraph 2, shall be entitled to submit statements of case or written observations to
the Court in cases which arise under paragraph 3.
5. The Court of Justice shall have no jurisdiction to review the
validity or proportionality of operations carried out by the police or other law enforcement
agencies of a Member State or the exercise of the responsibilities incumbent upon Member States
with regard to the maintenance of law and order and the
safeguarding of internal security.
6. The Court of Justice shall have jurisdiction to review the
legality of framework decisions and decisions in actions brought by a Member State or the Commission
on grounds of lack of competence, infringement of an essential procedural requirement,
infringement of this Treaty or of any rule of law relating to its
application, or misuse of powers. The proceedings provided for in
this paragraph shall be instituted within two months of the
publication of the measure.
7. The Court of Justice shall have jurisdiction to rule on any
dispute between Member States regarding the interpretation or the application of acts adopted
under Article K.6(2) whenever such dispute cannot be settled by the Council within six months of its
being referred to the Council by one of its members. Moreover,
the Court shall have jurisdiction to rule on any dispute between
Member States and the Commission regarding the interpretation or the application of conventions established under Article
K.6(2)(d).
Article K.8 of the TEU (former Article K.4)
1. A Coordinating Committee shall be set up consisting of senior
officials. In addition to its coordinating role, it shall be the task of the Committee to:
- give opinions for the attention of the Council, either at the
Council's request or on its own initiative;
- contribute, without prejudice to Article 151 of the Treaty
establishing the European Community, to the preparation of the Council's discussions in the
areas referred to in Article K.1.
2. The Commission shall be fully associated with the work in the
areas referred to in this Title.
Article K.9 of the TEU (former Article K.5)
Within international organizations and at international
conferences in which they take part, Member States shall defend the common positions adopted under the
provisions of this Title.
The provisions of Articles J.8 and J.9 shall apply as appropriate
to matters falling under this Title. New Article K.10 in the TEU
Agreements referred to in Article J.14 may cover matters falling
under this Title.
Declaration to the Final Act
relating to Article J.14 and K.10
The provisions of Article J.14 and K.10 and any agreements
resulting form them shall not imply any transfer of competence from the Member States to the
Union.
Article K.11 of the TEU (former Article K.6)
1. The Council shall consult the European Parliament before
adopting any measure referred to in Article K.6 (2)(b), (c) and (d). The European Parliament shall
deliver its opinion within a time-limit which the Council may lay down, which shall not be less than
three months. In the absence of an opinion within that time-limit, the Council may act.
2. The Presidency of the Council and the Commission shall
regularly inform the European Parliament of discussions in the areas covered by this Title.
3. The European Parliament may ask questions of the Council or
make recommendations to it. Each year, it shall hold a debate on the progress made in the
areas referred to in this Title.
Article K.12 of the TEU (former Article K.7)footnote 5 (1)
1. Member States which intend to establish closer cooperation
between themselves may be authorized, subject to Articles [1] and [2]footnote 6 (2), to
make use of the institutions, procedures and mechanisms laid down by the Treaties provided that the
cooperation proposed:
(a) respects the powers of the European Community, and the
objectives laid down by this Title;
(b) has the aim of enabling the Union to develop more rapidly
into an area of freedom, security and justice.
2. The authorization referred to in paragraph 1 shall be granted
by the Council, acting by a qualified majority at the request of the Member States concerned and after
inviting the Commission to present its opinion; the request shall also be forwarded to the European
Parliament.
If a member of the Council declares that, for important and
stated reasons of national policy, it intends to oppose the granting of an authorization by qualified
majority, a vote shall not be taken. The Council may, acting by a qualified majority, request that the
matter be referred to the European Council for decision by unanimity.
The votes of the members of the Council shall be weighted in
accordance with article 148(2) of the Treaty establishing the European Community. For their
adoption, decisions shall require at least 62 votes in favour, cast by at least 10 members.
3. Any Member State which wishes to become a party to cooperation
set up in accordance with this Article shall notify its intention to the Council and to the
Commission, which shall give an opinion to the Council within
three months of receipt of that notification, possibly
accompanied by a recommendation for specific arrangements as it may deem necessary
for that Member State to become a party to the cooperation in question. Within four months
of the date of that notification, the Council shall decide on the
request and on possible specific arrangements as it may deem
necessary. The decision shall be deemed to be taken unless the
Council, acting by a qualified majority, decides to hold it in
abeyance; in this case, the Council shall state the reasons for
its decision and set a deadline for reexamining it. For the
purposes of this paragraph, the Council shall act under the
conditions set out in Article (2) of the TEUfootnote 7 (1).
4. The provisions of Articles K.1 to K.13 shall apply to the
closer cooperation provided for by this Article, save as otherwise provided for in this Article and in
Articles (..) and (..).
The provisions of the Treaty establishing the European Community
concerning the powers of the Court of Justice of the European Communities and the exercise of
those powers shall apply to paragraphs 1, 2 and 3.
5. This Article is without prejudice to the provisions of the
Protocol integrating the Schengen acquis into the framework of the Union.
Article K.13 of the TEU (former Article K.8)
1. The provisions referred to in Articles 137, 138, 138e, 139 to
142, 146, 147, 148(3), 150 to 153, 157 to 163, 191a and 217 of the Treaty establishing the
European Community shall apply to the provisions relating to the areas referred to in this Title.
2. Administrative expenditure which the provisions relating to
the areas referred to in this Title entail for the institutions shall be charged to the budget of the
European Communities.
3. Operational expenditure to which the implementation of those
provisions gives rise shall also be charged to the budget of the European Communities, except where
the Council acting unanimously decides otherwise. In cases where expenditure is not charged to
the budget of the European Communities it shall be charged to the Member States in
accordance with the GNP scale, unless the Council acting unanimously decides otherwise.
4. The budgetary procedure laid down in the Treaty establishing
the European Community shall apply to the expenditure charged to the budget of the European
Communities.
Article K.14 of the TEU (former Article K.9)
The Council, acting unanimously on the initiative of the
Commission or a Member State, and after consulting the European Parliament, may decide that action in
areas referred to in Article K.1 shall fall under Title ... of the Treaty establishing the European
Community, and at the same time determine the relevant voting
conditions relating to it. It shall recommend the Member States
to adopt that decision in accordance with their respective
constitutional requirements.
Protocol integrating the Schengen acquis into the
framework of the European
Union footnote 8 (1)
THE HIGH CONTRACTING PARTIES TO THE TREATY OF AMSTERDAM
NOTING that the Agreements on the gradual abolition of checks at
common borders signed by some Member States of the European Union in Schengen on 14 June
1985 and on 19 June 1990, as well as related agreements and the
rules adopted on the basis of these agreements, are aimed at enhancing European integration and, in particular, at enabling
the European Union to develop more rapidly into an area of freedom, security and justice
DESIRING to incorporate the above mentioned agreements and rules
into the framework of the European Union
CONFIRMING that the provisions of the Schengen acquis are
applicable only if and as far as they are compatible with the Union and Community law
TAKING INTO ACCOUNT the fact that Ireland and the United Kingdom
of Great Britain and Northern Ireland are not parties to and have not signed the
above-mentioned agreements; that provision should, however, be made to allow those Member States
to accept some or all of the provisions thereof
RECOGNIZING that, as a consequence, it is necessary to make use
of the provisions of the Treaty on European Union and of the
Treaty establishing the European Community concerning closer
cooperation between some Member States and that those provisions
should only be used as a last resort
TAKING INTO ACCOUNT the need to maintain a special relationship
with the Republic of Iceland and the Kingdom of Norway, both
States which have confirmed their intention to become bound by
the provisions mentioned above, on the basis of the Agreement
signed in Luxembourg on 19th December 1996
HAVE AGREED upon the following provisions, which shall be annexed
to the Treaty of Amsterdam:
Article A
The Kingdom of Belgium, the Kingdom of Denmark, the Federal
Republic of Germany, the Hellenic Republic, the Kingdom of Spain,
the French Republic, the Italian Republic, the Grand Duchy of
Luxembourg, the Kingdom of the Netherlands, the Republic of
Austria, the Portuguese Republic, the Republic of Finland and the
Kingdom of Sweden, signatories to the Schengen Agreements, are
authorized to establish closer cooperation among themselves within the scope of those agreements and related provisions, as
they are listed in the annex to this Protocol, hereinafter
referred to as the "Schengen acquis". This cooperation
shall be conducted within the institutional and legal framework
of the European Union and with respect for the relevant
provisions of the Treaty on European Union and of the Treaty
establishing the European Community.
Article B
1. From the date of entry into force of this Protocol, the
Schengen acquis, including the decisionsof the Executive Committee established by the Schengen agreements which have been
adopted before this date, shall immediately apply to the thirteen Member
States referred to in Article A, without prejudice to the provisions of paragraph 2.
From the same
date, the Council will substitute itself for the said Executive Committee.
The Council, acting by the unanimity of its Members referred to
in Article A, shall take any measure necessary for the implementation of this paragraph. The
Council, acting unanimously, shall determine, in conformity with the relevant provisions of the
Treaties, the legal basis for each of the provisions or decisions which constitute the Schengen acquis.
With regard to such provisions and decisions and in accordance
with that determination, the Court of Justice of the European Communities shall exercise the powers
conferred upon it by the relevant applicable provisions of the Treaties. In any event, the Court of
Justice shall have no jurisdiction on measures or decisions relating to the maintenance of law and
order and the safeguarding of internal security.
As long as the measures referred to above have not been taken and
without prejudice to Article D, second subparagraph, the provisions or decisions which
constitute the Schengen acquis shall be regarded as acts based on Title VI of the TEU.
2. The provisions of paragraph 1 shall apply to the Member States
which have signed accession Protocols to Schengen from the dates decided by the Council,
acting with the unanimity of its Members mentioned in Article A, unless the conditions for the
accession of any of those States to the Schengen acquis are met
before the date of the entry into force of this Protocol.
Declaration to the Final Act on Article B
The High Contracting Parties agree that the Council shall adopt
all the necessary measures referred to in this Article upon the date of entry into force of
this Treaty. To that end, the necessary preparatory work shall be undertaken in due time in
order to be completed prior to that date.
Article C
Ireland and the United Kingdom of Great Britain and Northern
Ireland, which are not bound by the Schengen acquis, may at any time request to take part in some or
all of the provisions of this acquis.
The Council shall decide on the request with the unanimity if its
members referred to in Article A and of the representative of the
Government of the State concerned.
Article D
1. Proposals and initiatives to build upon the Schengen acquis
shall be subject to the relevant provisions of the Treaties.
In this context, where either Ireland or the United Kingdom or
both have not notified the President of the Council in writing within a reasonable period that they
wish to take part, the authorization referred to in Articles 5a of the TEC or K.12 of the TEU shall be
deemed to have been granted to the Members States referred to in Article A and to Ireland or the
United Kingdom where either of them wishes to take part in the areas of cooperation in question.
2. The relevant provisions of the Treaties referred to in the
first subparagraph of paragraph 1 shall apply even if the Council has not adopted the measures referred
to in Article B(1), second subparagraph.
Declaration to the Final Act on Article D
The High Contracting Parties undertake to make all efforts in
order to make action among all Member States possible in the domains of the Schengen acquis, in
particular whenever Ireland and the United Kingdom of Great Britain and Northern Ireland have
accepted some or all of the provisions of that acquis in accordance with Article
C.Article E
The Republic of Iceland and the Kingdom of Norway shall be
associated with the implementation of the Schengen acquis and its
further development on the basis of the Agreement signed in Luxembourg on 19 December 1996. Appropriate procedures shall be
agreed to that effect in an Agreement to be concluded with those States by the Council,
acting by the unanimity of its Members mentioned in Article A.
Such Agreement shall include provisions on the contribution of
Iceland and Norway to any financial consequences resulting from
the implementation of this Protocol.
A separate Agreement shall be concluded with the above-mentioned
countries by the Council, acting unanimously, for the
establishment of rights and obligations between Ireland and the
United Kingdom of Great Britain and Northern Ireland on the one
hand, and Iceland and Norway on the other, in domains of the
Schengen acquis which apply to these States.
Declaration to the Final Act on Article E
The High Contracting Parties agree to take all necessary steps so
that the Agreements referred to in Article E may enter into force on the same date as
the date of entry into force of the Protocol integrating the Schengen acquis into the framework
of the European Union.
Article F
The Council shall, acting by a qualified majority, adopt the
modalities for the integration of the Schengen Secretariat into the General Secretariat of the Council.
Article G
For the purposes of the negotiations for the admission of new
Member States into the European Union, the Schengen acquis and further measures taken by the
institutions within its scope shall be regarded as an acquis which must be accepted in full by all
States candidates for admission.
ANNEX
SCHENGEN ACQUIS
1. The Agreement, signed in Schengen on 14 June 1985, between the
Governments of the States of the Benelux Economic Union, the Federal Republic of
Germany and the French Republic on the gradual abolition of checks at their common
borders.
2. The Convention, signed in Schengen on 19 June 1990, between
the Kingdom of Belgium, the Federal Republic of Germany, the French Republic,
the Grand Duchy of Luxembourg and the Kingdom of Netherlands, implementing the
Agreement on the gradual abolition of checks at their common borders, signed in Schengen
on 14 June 1985, with related Final Act and common declarations.
3. The Accession Protocols and Agreements to the 1985 Agreement
and the 1990 Implementation Convention with Italy (signed in Paris on 27
November 1990), Spain and Portugal (both signed in Bonn on 25 June 1991), Greece (signed in
Madrid on 6 November 1992), Austria (signed in Brussels on 28 April 1995) and Denmark,
Finland and Sweden (all signed in Luxembourg on 19 December 1996), with related Final
Acts and declarations.
4. Decisions and declarations adopted by the Executive Committee
established by the 1990 Implementation Convention, as well as acts adopted for the
implementation of the Convention by the organs upon which the Executive Committee has
conferred decision making powers.
Protocol to the Treaty establishing the European
Community on asylum for nationals of
EU Member States
THE HIGH CONTRACTING PARTIES
WHEREAS pursuant to the provisions of Article F(2) of the Treaty
on European Union (TEU) "the Union shall respect fundamental rights as
guaranteed by the European Convention for the Protection of Human Rights and Fundamental
Freedoms signed in Rome on November 4 1950";
WHEREAS the Court of Justice of the European Communities has
jurisdiction to ensure that in the interpretation and application of Article F(2) of the
TEU the law is observed by the European Community;
WHEREAS pursuant to Article O of the TEU any European State, when
applying to become a Member of the Union, must respect the principles set out
in Article F(1) of the TEU;
BEARING IN MIND that Article 236 of the Treaty establishing the
European Community (TEC) establishes a mechanism for the suspension of certain
rights in the event of a serious and persistent breach by a Member State of those principles;
RECALLING that each national of a Member State, as a citizen of
the Union, enjoys a special status and protection which shall be guaranteed by the
Member States in accordance with the provisions of Part Two of the TEC;
BEARING IN MIND that the TEC establishes an area without internal
frontiers and grants every citizen of the Union the right to move and reside
freely within the territory of the Member States;
RECALLING that the question of extradition of nationals of Member
States of the Union is addressed in the European Convention on Extradition of 13
December 1957 and the Convention of 27 September 1996 based on Article K.3 of the TEU
concerning extradition between the Member States of the European Union;
WISHING to prevent that the institution of asylum is resorted to
for purposes alien to those for which it is intended;
WHEREAS this Protocol respects the finality and the objectives of
the Convention relating to the Status of Refugees of 28 July 1951;
HAVE AGREED upon the following provisions which shall be annexed
to the TEC:
Sole Article
Given the level of protection of fundamental rights and freedoms
by the Member States of the European Union, Member States shall be regarded as
constituting safe countries of origin in respect of each other for all legal and practical
purposes in relation to asylum matters. Accordingly, any application for asylum made by a
national of a Member State may be taken into consideration or declared admissible for
processing by another Member
State only in the following cases:
(a) if the Member State of which the applicant is a national
proceeds after the entry into force of this Treaty, availing itself of the provisions of
Article 15 of the Convention for the Protection of Human Rights and Fundamental Freedoms, to take
measures derogating in its territory from its obligations under that Convention;
(b) if the procedure referred to Article Fa(1) of the TEU, has
been initiated and until the Council takes a decision in respect thereof;
(c) if the Council, acting on the basis of Article Fa(1) of the
TEU, has determined, in respect of the Member State of which the applicant is a national,
the existence of a serious and persistent breach by that Member State of principles
mentioned in Article F(1);
(d) if a Member State should so decide unilaterally in respect of
the application of a national of another Member State; in that case the Council shall
be immediately informed; the application shall be dealt with on the basis of the
presumption that it is manifestly unfounded without affecting in any way, whatever the cases may
be, the decision- making power of the Member State.
Declaration to the Final Act
This Protocol does not prejudice the right of each Member State
to take the organizational measures it deems necessary to fulfil its obligations under the
aforesaid Convention.
Declaration by Belgium
In approving this Protocol, Belgium declares that in accordance
with its obligations under the 1951 Geneva Convention and the 1967 New York Protocol, it
shall, in accordance with the provision set out in point (d) of the sole Article of this
Protocol, carry out an individual examination of any asylum request made by a national of another
Member State.
Declaration concerning subparagraph (d) of the sole Article of
the Protocol on asylum for nationals of EU Member States
The Conference declares that, while recognizing the importance of
the Resolution of the Ministers of the Member States of the European Communities
responsible for immigration of 30 November/1 December 1992 on manifestly unfounded
applications for asylum and of the Resolution of the Council of 9/10 March 1995 on minimum
guarantees for asylum procedures, the question of abuse of asylum procedures and
appropriate rapid procedures to dispense with manifestly unfounded applications for asylum should
be further examined with a view to introducing new improvements in order to
accelerate these procedures.
Section II: Chapter Three of the Treaty Back to table of contents