Schengen Agreement:Opinion of the Dutch Council of State
01 January 1991
Schengen Agreement:Opinion of the Dutch Council of State
bacdoc February=1992
[Introduction: the Dutch government's supreme advisory council
"Raad van State" is a body that comments on the constitutional
aspects of every bill presented to parliament. Here it states its
objection to the ratification of the Schengen Agreement by
Holland].
Council of State
To Her Majesty the Queen, The Hague, April 8, 1991
In Cabinet missive of January 9, 1991, no. 91.000119, Your
Majesty, on recommendation of the Minister for Foreign Affairs,
on behalf of the Ministers of Justice, Home Affairs, Economic
Affairs, Finance and Transport and Waterways, and the Secretaries
of State for Foreign Affairs, Justice and Finance, raised with
the Council of State for consideration the Draft Law with
Explanatory Statement, concerning assent for the agreement
reached on June 19, 1990 at Schengen, on the implementation of
the agreement reached between the governments of the states of
the Benelux Economic Union, the Federal Republic of Germany and
the French Republic on June 14, 1985 at Schengen, concerning the
progressive abolition of controls at common borders, with annexed
final act, protocol and joint declaration (Trb. 1990, 145).
1. General
The intention gradually to remove the controls on persons on the
internal borders between Member States of the European
Communities is enshrined in the EEC Treaty, in particular as it
was supplemented by the Single European Act (Trb. 1 986, 63), and
was agreed between those Member States, which form the so-called
"Schengen-countries" in their agreement of June 14, 1985.
Although the Council of State can support these efforts, the way
in which and the context within which these efforts have now been
translated into concrete regulations and measures have
encountered some objections in the Council. As will be explained
below, in the view of the Council there must be serious doubts
whether the proposed system of regulations and measures can be
carried out effectively while still maintaining all the presently
prevailing legal guarantees such as those, among others, set out
in the Convention on Refugees, unless policies in the Schengen
countries in a number of fields covered by the Implementing
Agreement are brought into line with each other beforehand, and
the prevailing rules and procedures harmonized. The Council
cannot overcome the impression that, in this respect, the
Implementing Agreement has come too early. On the other hand, the
question arises whether, in view of the target date for
implementation which has meanwhile been changed to 1992, it comes
too late to be useful as a precursor of a Community proposal. A
Community proposal offers the significant advantage that it would
include Community, or at least harmonized, regulations, whose
interpretation and application could be ensured via the Court of
Justice. Only recently, the Cabinet itself, in connection with
another matter, referred in the note "Innovation in Continuity"
to the advantages of supranational constructions above strictly
intergovernmental frameworks in those areas of international
cooperation which lend themselves to this.
2. The Schengen Framework
While the Schengen process took place outside the Community
framework, thus far it has received the approval of the European
Commission and the European Parliament. The Commission has
described this initiative as "a dynamic element in the completion
of the internal market and has qualified the political commitment
by the Member States concerned as an "especially positive
element" (Commission report concerning the removal of controls
on persons at the internal frontiers of the Community, COM (88)
640 fin. of January 16, 1989). Furthermore, it has declared that
the removal of controls on persons in the Schengen agreement
should be considered as a testbed for what will have to happen
before the end of 1992 (Reply to written que