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6 Opting In and Opting Out of Rules Concerning the Free Movement of Persons: Problems and Practical Arrangements
Published online by Cambridge University Press: 27 October 2017
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The opt-ins and opt-outs, which appear at different places in the Amsterdam Treaty where the policy related to movement of persons is concerned, are the result of difficult negotiations concerning the future of the Third Pillar, which was introduced by the Treaty on European Union. More particularly, these arrangements are the result of the discussions on “communautarisation” and the integration of Schengen co-operation in the framework of the European Union. “Communautarisation” concerns the process of transferring substantive matters from the Third Pillar area to the First Pillar area. This process implies, as a result, that proper Community procedures become applicable in these new policy fields.
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- Copyright © Centre for European Legal Studies, Faculty of Law, University of Cambridge 1998
References
1 OJ 1997 C340.
2 Hereafter referred to as the TEU or the Maastricht Treaty. The Third Pillar is the substance matter dealt with in Title VI TEU.
3 This process is to be distinguished from the possibility, mentioned in Article 42 TEU and according to which the Council may decide unanimously, on the initiative of the Commission or a Member State, that action in areas falling under the Third Pillar may be subjected to the procedures of the Community and which decisions are to be ratified by the Member States in accordance with their respective constitutional requirements.
4 The most important texts are 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, Trb (Dutch Treaty Series) 1985, 102; and the Convention between the Kingdom of Belgium, the Federal Republic of Germany, the French Republic, the Grand Duchy of Luxembourg and the Kingdom of the Netherlands, Implementing the Agreement on the Gradual Abolition of Checks at their Common Borders, signed in Schengen on 19 June 1990, Trb (Dutch Treaty Series) 1990, 145.
5 OJ 1992 C 348/1.
6 Protocol B.3 of the Final Act of the Amsterdam Treaty, also to be referred to as the “Frontiers Protocol”.
7 Article 2(1) of the Schengen Implementing Convention, above n 4.
8 Case C–321/87 [1989] ECR 1997.
9 Case C–68/89 [1991] ECR I-2637.
10 See paragraph 11 of the decision in Commission v. Belgium above n 8, and paragraphs 11–12 of Commission v. the Netherlands, above n 9.
11 Protocol B.4 of the Final Act of the Amsterdam Treaty.
12 Title IV (Title IIIa) EC.
13 These modalities correspond to the modalities for closer co-operation, as laid down in the first paragraph of Article 44 TEU. However, they differ from the modalities provided for in the Social Protocol annexed to the Maastricht Treaty to the extent that the United Kingdom in that case was not even allowed to participate in the deliberations of the Council: see paragraph 2 of Protocol 14 on Social Policy.
14 See for the modalities Article 205(2) EC (Article 148(2)).
15 “. . . whereupon that State shall be entitled to do so”: first sentence of Article 3(1) of Protocol B.4, above nil.
16 See Section V below.
17 Unilateral Declaration 4 of the Final Act of the Amsterdam Treaty, above n 1.
18 Protocol B.5 of the Final Act of the Amsterdam Treaty, above n 1.
19 See above n 13.
20 Article 226 EC (Article 169).
21 Notably Article 234 EC (Article 177) is of importance here.
22 Protocol B.2 of the Final Act of the Amsterdam Treaty (also to be referred to as the “Schengen Protocol”). See on this subject also de Zwaan, J.W. “Schengen and its Incorporation into the New Treaty”, and the contribution of Piçarra, N. “La mise en œuvre du protocole intégrant l’acquis de Schengen dans le cadre de l’Union européenne: règles et procédures”, in Den Boer, M. (ed.) Schengen’s Final Days? The Incorporation of Schengen into the New TEU, External Borders and Information Systems (European Institute of Public Administration, 1998) 13 and 25 respectivelyGoogle Scholar.
23 Annexed to the Final Act of the Treaty of Amsterdam, above n 1.
24 See above, Section II.
25 Annexed to the Final Act of the Treaty of Amsterdam, above n 1.
26 And, as is stated in Article 5(2), to Ireland or the United Kingdom where either of them wishes to take part in the areas of co-operation in question.
27 See the discussion above, in Section III, related to the interpretation of Article 3(2) of the Protocol on the United Kingdom and Ireland.
28 Annexed to the Final Act of the Treaty of Amsterdam, above n 1.
29 Signed in Luxembourg on 19 December 1996, Trb (Dutch Treaty Series) 1997.128, 130 and 132.
30 In Article 2(2) of the Schengen Protocol, above n 22, it is added: “. . . unless the conditions for the accession of one of those states to the Schengen acquis are already met before the date of entry into force of the Amsterdam Treaty”. In that particular situation apparently a start of the participation, as from the date of entry into force of the Amsterdam Treaty is the rule.
31 Article 6 of the Schengen Protocol, above n 22.
32 Trb (Dutch Treaty Series) 1997, 133.
33 The relevant treaty text is the Convention between Denmark, Finland, Norway and Sweden concerning the waiver of passport control at the intra-Nordic frontiers (translation), signed in Copenhagen, on 12 July 1957, UNTS 1959, 4660.
34 See Article 140(1) of the Schengen Implementing Convention above n 4, according to which provision (only) Member States of the European Communities could become a party to the Convention.
35 It is worth noting that the designation of the “Council” as contracting party on behalf of the Member States of the European Union represents a unique and unprecedented institutional innovation. Here exists a relationship which the discussion the Intergovernmental Conference had concerning the opportunity to confer—after the example of the European Community—legal personality to the European Union: See Articles 281 and 282 EC (Articles 210 and 211). On this point, however, no agreement was reached.
36 Annexed to the Final Act of the Treaty of Amsterdam, above n 1.
37 OJ 1994 L1/3. See notably Articles 99–102 EEA.
38 Protocol 14 on Social Policy. As is well known, the British reservation to this Protocol has since been dropped. The Amsterdam Treaty integrates the content of the Social Protocol now formally in the text of the EC Treaty: Articles 136–143 EC (Articles 117–120).
39 Unilateral Declaration 7 of the Final Act of the Amsterdam Treaty.
40 Above n 4.
41 Mentioned in Article 299 (2) EC (Article 227)(2)).
42 Decisions of the Court in Case 148/77 Hansen [1978] ECR 1787 and Case C–163/90 Legros [1992] I–4625.
43 See on this subject also Ehlermann, C.D. “Différenciation, flexibilité, coopération renforcée: les nouvelles dispositions du traité d’Amsterdam” [1997] Revue du Marché Unique Européen 53 Google Scholar; Shaw, J. “The Treaty of Amsterdam: Challenges of Flexibility and Legitimacy” 4 (1998) ELRev. 63 Google Scholar; Gaja, G., “How Flexible is Flexibility under the Amsterdam Treaty” 4 (1998) CMLRev. 855 Google Scholar.
44 Article 40(1) TEU.
45 Article 43(e) TEU.
46 Article 35 TEU.
47 Convention on the establishment of a European Police Office (Europol Convention), signed at 26 July 1995, OJ 1995 C 316/2.
48 Protocol on the interpretation, by way of preliminary rulings, by the Court of Justice of the European Communities of the Convention on the establishment of a European Police Office (Europol Convention), signed at 23 July 1996, OJ 1996 C299/2.
49 The equivalent arrangement in the EC context is Article 227 EC (Article 170).
50 Article 2(1) of the Court Protocol on Europol, above n 48.
51 As drafted, the construction does not provide for an obligation for these “supreme” courts to refer cases to Luxembourg, as is the case under Article 234 EC. However, the solution agreed to in the Europol context provides also for a text of a Declaration of eight Member States, annexed to the Court Protocol on Europol, according to which these Member States reserve the right to make provision in their national law to the effect that, where a question relating to the interpretation of the Europol Convention is raised in a case before a national court or tribunal against whose decision there is no judicial remedy under national law, that court or tribunal will be required to refer the matter to the Court of Justice: OJ 1996 C299/14.
52 In fact, it follows from the wording of the first paragraph that the jurisdiction of the Court to give preliminary rulings concerns the validity and interpretation of framework decisions and decisions in the meaning of Article 34 TEU, the interpretation of conventions, and the validity and interpretation of measures implementing conventions.
53 The option “not to choose” follows from the facultative wording of paragraph 2: “any Member State shall be able to accept . . .”.
54 See, again, the modalities of Article 234(3) EC.
55 Annexed to the Final Act of the Treaty of Amsterdam, above n 1.
56 According to the wording of Article 34(2)(d), second subparagraph, TEU individual texts of conventions may provide otherwise.
57 According to the wording of Article 5(1) of the Schengen Protocol such proposals and initiatives “build upon” the Schengen acquis.
58 Article 4(2) of the Schengen Protocol.
59 Indeed, according to the wording of Article 6(1) of the Schengen Protocol, Iceland and Norway “shall” be associated with the implementation of the Schengen acquis and its further development.
60 See in this context notably the Protocol on the position of the United Kingdom and Ireland, above n 11, as well as the Protocol on the position of Denmark, above n 18.
61 See the arrangements of Article 3 of the Protocol United Kingdom and Ireland.
62 Article 7 (Part III) of the Danish Protocol, above n 18.
63 Article 5(1) of the Danish Protocol, ibid.
64 Above n 37.
65 Article 2 TEU (Article B), 4th indent.
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