Council Decision of 1 December 2014 concerning the notification of the United Kingdom of Great Britain and Northern Ireland of its wish to take part in some of the provisions of the Schengen acquis which are contained in acts of the Union in the field of police cooperation and judicial cooperation in criminal matters and amending Decisions 2000/365/EC and 2004/926/EC (2014/857/EU)

[F1 Council Decision

of 1 December 2014

concerning the notification of the United Kingdom of Great Britain and Northern Ireland of its wish to take part in some of the provisions of the Schengen acquis which are contained in acts of the Union in the field of police cooperation and judicial cooperation in criminal matters and amending Decisions 2000/365/EC and 2004/926/EC

(2014/857/EU)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Protocol No 36 on transitional provisions (hereinafter ‘Protocol No 36’), annexed to the Treaty on European Union, to the Treaty on the Functioning of the European Union and to the Treaty establishing the European Atomic Energy Community, and in particular to Article 10(5) thereof,

Having regard the Protocol No 19 on the Schengen acquis integrated into the framework of the European Union (hereinafter ‘the Schengen Protocol’), annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, and in particular to Article 4 thereof,

Having regard to the notification, under Article 10(4) of Protocol No 36, by the Government of the United Kingdom of Great Britain and Northern Ireland (hereinafter ‘the United Kingdom’), by its letter to the President of the Council of 24 July 2013,

Having regard to the notification, under Article 10(5) of Protocol No 36, by the Government of the United Kingdom, by its letter to the President of the Council and to the President of the Commission taking effect on 1 December 2014, of its wish to take part in some of the provisions of the Schengen acquis which are contained in acts of the Union in the field of police cooperation and judicial cooperation in criminal matters,

Whereas:

(1) Article 10(4) of Protocol No 36 allowed the United Kingdom, at the latest six months before the expiry of the five year transitional period after the entry into force of the Treaty of Lisbon, to notify to the Council that it does not accept, with respect to acts of the Union in the field of police cooperation and judicial cooperation in criminal matters which had been adopted before the entry into force of the Treaty of Lisbon, the powers of the Commission and of the Court of Justice as referred to in Article 10(1) of Protocol No 36.

(2) By letter to the President of the Council of 24 July 2013, the United Kingdom made use of the above possibility by notifying the Council that it did not accept the said powers of the Commission and of the Court of Justice, with the consequence that the relevant acts in the field of police cooperation and judicial cooperation in criminal matters would cease to apply to the United Kingdom on 1 December 2014.

(3) Article 10(5) of Protocol No 36 allows the United Kingdom to notify the Council of its wish to participate in the above acts, including those acts which are part of the Schengen acquis, in which case the relevant provisions of the Schengen Protocol should apply.

(4) By letter to the President of the Council and to the President of the Commission taking effect on 1 December 2014, the United Kingdom made use of the above possibility by notifying the Council of its wish to participate in some of the provisions of the Schengen acquis which are contained in acts of the Union in the field of police cooperation and judicial cooperation in criminal matters to which it was already taking part in accordance with Council Decision 2000/365/EC(1), Council Decision 2004/926/EC(2) and Article 5(1) of the Schengen Protocol.

(5) It is therefore necessary to identify the acts and provisions in the field of police cooperation and judicial cooperation in criminal matters which are part of the Schengen acquis in which the United Kingdom will continue to participate following the above notification of its wish to do so and therefore to amend Decision 2000/365/EC and Decision 2004/926/EC.

(6) Decision 2000/365/EC and Decision 2004/926/EC, as amended, will thus continue to apply, in particular concerning those provisions of the Schengen acquis in which the United Kingdom was authorised to take part and which are not acts and provisions in the field of police cooperation and judicial cooperation in criminal matters as referred to in Article 10(1) of Protocol No 36.

(7) Likewise, the United Kingdom will continue to participate in those acts and provisions of the Schengen acquis for which it was authorised to take part, which although they are acts and provisions in the field of police cooperation and judicial cooperation in criminal matters adopted before the entry into force of the Treaty of Lisbon, have been amended by an act, applicable to the United Kingdom, adopted after that entry into force and which therefore fall under Article 10(2) of Protocol No 36. This is the case with regard to the Decision of the Executive Committee of 16 September 1998(3) on the Schengen Evaluation Mechanism, which was amended by Council Regulation (EU) No 1053/2013(4), and to Articles 48 to 53 of the 1990 Convention implementing the Schengen Agreement of 14 June 1985 as well as the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union(5) and its Protocol(6), which were amended by Directive 2014/41/EU of the European Parliament and of the Council(7). This is also the case with regard to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation's association with the implementation, application and development of the Schengen acquis(8), which was amended by the Protocol on the accession of the Principality of Liechtenstein to that Agreement(9) (hereinafter ‘the Agreement of 2008 on Switzerland's association with the Schengen acquis’).

(8) As recalled in Decision 2000/365/EC, the United Kingdom has a special position in respect of matters covered by Title V of Part Three of the Treaty on the Functioning of the European Union (TFEU), as recognised in the Schengen Protocol, as well as in Protocol No 20 on the application of certain aspects of Article 26 of the TFEU to the United Kingdom and to Ireland (hereinafter ‘Protocol No 20’) and Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of Freedom, Security and Justice (hereinafter ‘Protocol No 21’), annexed to the Treaty on European Union and to the TFEU. Due to this special position, the Schengen Protocol provides for the possibility of the United Kingdom to participate in some of the provisions of the Schengen acquis.

(9) In accordance with Article 10(5) of Protocol No 36, the participation of the United Kingdom in some of the provisions of the Schengen acquis which are contained in acts of the Union in the field of police cooperation and judicial cooperation in criminal matters as provided in this Decision re-establishes the widest possible measure of participation of the United Kingdom in the Schengen acquis of the Union in the area of freedom, security and justice without seriously affecting the practical operability of the various parts thereof, while respecting their coherence.

(10) As recalled in Decision 2000/365/EC, the Schengen acquis was conceived and functions as a coherent ensemble which has to be fully accepted and applied by all States supporting the principle of the abolition of checks on persons at their common borders.

(11) The implementing power to adopt the decisions under Articles 5(1) and 6(1) of Decision 2000/365/EC, whereby the Schengen acquis will be applied to the Channel Islands and the Isle of Man and the relevant acquis on the Schengen Information System will be put into effect for the United Kingdom, should be conferred on the Council. This is in view of the specific role entrusted to the Council by the Schengen Protocol when it comes to unanimously agreeing on new participants into the Schengen acquis, but also in view of the high level of mutual trust between the Member States which is required when examining that the preconditions for the implementation of the provisions on the Schengen Information System have been fulfilled and when taking the subsequent decision by which those provisions will be put into effect for the United Kingdom. The Council should act with the unanimity of its members referred to in Article 1 of the Schengen Protocol and of the representative of the Government of the United Kingdom.

(12) In accordance with Article 2 of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway on the establishment of rights and obligations between Ireland and the United Kingdom of Great Britain and Northern Ireland, on the one hand, and the Republic of Iceland and the Kingdom of Norway, on the other, in areas of the Schengen acquis which apply to these States(10), the Mixed Committee established pursuant to Article 3 of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latters' association with the implementation, application, and development of the Schengen acquis(11) has been consulted in accordance with Article 4 thereof about the preparation of this Decision.

(13) In accordance with Article 5 of the Agreement of 2008 on Switzerland's association with the Schengen acquis, the Mixed Committee established pursuant to Article 3 thereof has been informed about the preparation of this Decision,

HAS ADOPTED THIS DECISION:]

Textual Amendments

F1 Decision revoked (31.12.2020) (in so far as relates to Arts. 39, 46-49, 51 of the 1990 Schengen Convention) by The Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/742), regs. 1, 99(c) (as amended by S.I. 2020/1408, regs. 1, 29); 2020 c. 1, Sch. 5 para. 1(1); and revoked (31.12.2020) (in so far as relates to the Schengen information system) by S.I. 2019/742, regs. 1, 119(1)(c); 2020 c. 1, Sch. 5 para. 1(1)

Article 1 U.K.

[F1 As from 1 December 2014, the United Kingdom shall continue to participate in the provisions of the Schengen acquis as provided in this Decision, including in accordance with Decision 2000/365/EC and Decision 2004/926/EC, as amended by this Decision.

This Article shall be without prejudice to acts and provisions of the Schengen acquis adopted since 1 December 2009 by which the United Kingdom is bound in accordance with Article 5(1) of the Schengen Protocol and Article 8(2) of Decision 2000/365/EC.]

Textual Amendments

F1 Decision revoked (31.12.2020) (in so far as relates to Arts. 39, 46-49, 51 of the 1990 Schengen Convention) by The Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/742), regs. 1, 99(c) (as amended by S.I. 2020/1408, regs. 1, 29); 2020 c. 1, Sch. 5 para. 1(1); and revoked (31.12.2020) (in so far as relates to the Schengen information system) by S.I. 2019/742, regs. 1, 119(1)(c); 2020 c. 1, Sch. 5 para. 1(1)

Article 2 U.K.

[F1 Decision 2000/365/EC is amended as follows:

(1)

Article 1 is amended as follows:

(a)

point (a) is amended as follows:

(i)

in point (i):

• the reference to Article ‘27’ is replaced by ‘27(1)’;

• the words ‘except for Article 47(2)(c)’ are replaced by ‘except for Article 47(2)(c) and (4)’;

(ii)

points (ii) and (iii) are replaced by the following:

‘(ii) the following provisions concerning the Schengen Information System:

• Council Decision 2007/533/JHA of 12 June 2007 on the establishment, operation and use of the second generation Schengen Information System (SIS II)(12);

• Commission Decision 2007/171/EC of 16 March 2007 laying down the network requirements for the Schengen Information System II (3rd pillar)(13);’;

(b)

in point (b), points (i) to (v) are deleted and points (vi), (vii) and (viii) are replaced by the following:

‘(i)

the Agreement signed on 19 December 1996 on Accession of the Kingdom of Denmark: Article 6;

(ii)

the Agreement signed on 19 December 1996 on Accession of the Republic of Finland: Article 5;

(iii)

the Agreement signed on 19 December 1996 on Accession of the Kingdom of Sweden: Article 5;’;

(c)

in point (c), points (i) and (ii) are replaced by the following:

‘SCH/Com-ex (94) 28 rev (certificate provided for in Article 75 for transport of drugs and/or psychotropic substances);

SCH/Com-ex (98) 26 def (setting up the Schengen implementing Convention Standing Committee), subject to an internal arrangement specifying the modalities of participation of United Kingdom experts in missions carried out under the auspices of the relevant Council Working Party.’;

(d)

point (d) is deleted.

(2)

Articles 2, 3 and 4 are deleted.

(3)

Article 5 is amended as follows:

(a)

in paragraph 1, in the second sentence, the words ‘A decision on this request shall be taken by the Council …’ are replaced by ‘An implementing decision on this request shall be taken by the Council …’;

(b)

paragraph 2 is amended as follows:

(i)

in point (a):

• the reference to Article ‘27’ is replaced by ‘27(1)’;

• the words ‘except for Article 47(2)(c)’ are replaced by ‘except for Article 47(2)(c) and (4)’;

(ii)

in point (b), points (i) to (v) are deleted and points (vi), (vii) and (viii) are replaced by the following:

‘(i)

the Agreement signed on 19 December 1996 on Accession of the Kingdom of Denmark: Article 6;

(ii)

the Agreement signed on 19 December 1996 on Accession of the Republic of Finland: Article 5;

(iii)

the Agreement signed on 19 December 1996 on Accession of the Kingdom of Sweden: Article 5.’;

(iii)

in point (c), the list of acts is replaced by the following:

‘SCH/Com-ex (94) 28 rev (certificate provided for in Article 75 for transport of drugs and/or psychotropic substances).’;

(iv)

point (d) is deleted.

(4)

Article 6 is amended as follows:

(a)

paragraphs 1 and 2 are replaced by the following:

‘1. The provisions referred to in Article 1(a)(ii), as well as the other relevant provisions concerning the Schengen Information System adopted since 1 December 2009, but not yet put into effect, shall be put into effect, between the United Kingdom and the Member States and other States for which these provisions have already been put into effect, when the preconditions for the implementation of those provisions have been fulfilled, by an implementing decision taken by the Council.’;

(b)

paragraphs 3, 4 and 5 are renumbered as 2, 3 and 4, respectively;

(c)

in paragraph 4, renumbered 3, the words ‘Any decision under paragraphs 1, 2 and 3’ are replaced by ‘Any implementing decision under paragraphs 1 and 2’.

(5)

In Article 7, paragraph 1 is deleted and paragraph 2 becomes a single paragraph.]

Textual Amendments

F1 Decision revoked (31.12.2020) (in so far as relates to Arts. 39, 46-49, 51 of the 1990 Schengen Convention) by The Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/742), regs. 1, 99(c) (as amended by S.I. 2020/1408, regs. 1, 29); 2020 c. 1, Sch. 5 para. 1(1); and revoked (31.12.2020) (in so far as relates to the Schengen information system) by S.I. 2019/742, regs. 1, 119(1)(c); 2020 c. 1, Sch. 5 para. 1(1)

Article 3 U.K.

[F1 Decision 2004/926/EC is amended as follows:

(1)

In Article 1, the following paragraph is added:

‘As from 1 December 2014, the United Kingdom shall continue to apply the provisions referred to in Articles 1(a)(i), (b) and (c) and 5(2) of Decision 2000/365/EC, as amended by Council Decision 2014/857/EU(14), as well as the provisions of the acts listed in Annexes I and II to this Decision, as amended by Decision 2014/857/EU.’.

(2)

In Annex I:

(a)

point 4 is deleted;

(b)

the following points are added:

‘8.

Council Framework Decision 2008/977/JHA of 27 November 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters (OJ L 350, 30.12.2008, p. 60).

9.

Council Decision 2008/149/JHA of 28 January 2008 on the conclusion on behalf of the European Union of the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation's association with the implementation, application and development of the Schengen acquis (OJ L 53, 27.2.2008, p. 50).

10.

Council Decision 2011/349/EU of 7 March 2011 on the conclusion on behalf of the European Union of the Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation's association with the implementation, application and development of the Schengen acquis, relating in particular to judicial cooperation in criminal matters and police cooperation (OJ L 160, 18.6.2011, p. 1).’.]

Textual Amendments

F1 Decision revoked (31.12.2020) (in so far as relates to Arts. 39, 46-49, 51 of the 1990 Schengen Convention) by The Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/742), regs. 1, 99(c) (as amended by S.I. 2020/1408, regs. 1, 29); 2020 c. 1, Sch. 5 para. 1(1); and revoked (31.12.2020) (in so far as relates to the Schengen information system) by S.I. 2019/742, regs. 1, 119(1)(c); 2020 c. 1, Sch. 5 para. 1(1)

Article 4 U.K.

[F1 This Decision shall enter into force on 1 December 2014.]

Textual Amendments

F1 Decision revoked (31.12.2020) (in so far as relates to Arts. 39, 46-49, 51 of the 1990 Schengen Convention) by The Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/742), regs. 1, 99(c) (as amended by S.I. 2020/1408, regs. 1, 29); 2020 c. 1, Sch. 5 para. 1(1); and revoked (31.12.2020) (in so far as relates to the Schengen information system) by S.I. 2019/742, regs. 1, 119(1)(c); 2020 c. 1, Sch. 5 para. 1(1)

[F1 Done at Brussels, 1 December 2014.

For the Council

The President

S. Gozi]

(1)

Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis (OJ L 131, 1.6.2000, p. 43).

(2)

Council Decision 2004/926/EC of 22 December 2004 on the putting into effect of parts of the Schengen acquis by the United Kingdom of Great Britain and Northern Ireland (OJ L 395, 31.12.2004, p. 70).

(3)

Decision of the Executive Committee of 16 September 1998 setting up a Standing Committee on the evaluation and implementation of Schengen (SCH/Com-ex (98) 26 def.) (OJ L 239, 22.9.2000, p. 138).

(4)

Council Regulation (EU) No 1053/2013 of 7 October 2013 establishing an evaluation and monitoring mechanism to verify the application of the Schengen acquis and repealing the Decision of the Executive Committee of 16 September 1998 setting up a Standing Committee on the evaluation and implementation of Schengen (OJ L 295, 6.11.2013, p. 27).

(5)

Convention established by the Council in accordance with Article 34 of the Treaty on European Union, on Mutual Assistance in Criminal Matters between the Member States of the European Union (OJ C 197, 12.7.2000, p. 3).

(6)

Protocol established by the Council in accordance with Article 34 of the Treaty on European Union to the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union (OJ C 326, 21.11.2001, p. 2).

(7)

Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters,(OJ L 130, 1.5.2014, p. 1).

(8)

OJ L 53, 27.2.2008, p. 52.

(9)

Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation's association with the implementation, application and development of the Schengen acquis (OJ L 160, 18.6.2011, p. 3).

(10)

OJ L 15, 20.1.2000, p. 2.

(11)

OJ L 176, 10.7.1999, p. 36.

(12)

OJ L 205, 7.8.2007, p. 63.

(13)

OJ L 79, 20.3.2007, p. 29.’

(14)

Council Decision 2014/857/EU of 1 December 2014 concerning the notification of the United Kingdom of Great Britain and Northern Ireland of its wish to take part in some of the provisions of the Schengen acquis which are contained in acts of the Union in the field of police cooperation and judicial cooperation in criminal matters and amending Decisions 2000/365/EC and 2004/926/EC (OJ L 345, 1.12.2014, p. 1).’