FECL 21 (December 1993/January 1994):
The Dutch experts note that the SEC which will function as the administrative body of 'Schengen', "can issue European legislation necessary for the application of the Implementing Agreement, and thus establish the body of a European aliens law and of large parts of European criminal law".
Furthermore, "it can interpret and supplement European alien laws and criminal law, and at the highest instance".
"To what extent is [the SEC] competent to operate under secrecy and without control?" is the central question asked by the Standing Committee of Experts.
The paper's findings are disquieting.
The SEC has powers unique in the field of international organisations, because they are sweeping in three ways, namely: the nature and extent of the subject matter on which it can make binding decisions; the absence of international parliamentary and judicial control; and the kind of people to which those decisions can be addressed: individuals, mainly aliens and persons subject to criminal law.
The Implementing Agreement can entail all matters related to the "free circulation of goods, persons, services and capital" (article 8a, EC-Treaty), in as far as they are not regulated by Community law. As the circulation of goods, services and capital is already embodied in EC-law, the Schengen Implementing agreement Agreement chiefly concerns persons.
According to the Schengen Implementing Agreement, The SEC is empowered with "the implementation of this Convention". It can make binding decisions as to the entire subject matter covered by the agreement, i.e. it can make binding rules that are law for the Schengen-States.
According to prevailing texts neither the EC Court of justice, nor any other international judge is competent to judge the lawfulness of the agreement's application by one of the Schengen-States or the SEC itself. The European Parlaiment has no powers to control the Executive Committee.
The Standing Committee of Experts underlines that "the agreement in the first place addresses the rights and duties of individuals and not the rights and duties of states which perhaps have less need of protection by an international parliament and an international court". Everywhere else in Europe where similar structures were made to some extent, the application of the rules was placed under the control of an international court and an international parliament (e.g. the European Court of Human Rights and the Parliamentary Assembly of the Council of Europe).
According to the text of the draft Rules of Procedure of the SEC, an international organisation is created with bodies, by means of those rules, and powers are assigned to those bodies. "That is very remarkable indeed", it says in the Dutch paper. "Usually, international organisations are constructed by a treaty, not only as to their establishment itself, but also as to the establishment of their bodies. Thereby parliamentary control of that construction is possible. That construction cannot be changed without a change of treaty. However, according to these draft rules [regulating the SEC] this will be possible now.
According to the draft, the SEC will be composed of
According to article 11 of the draft rules "The Central Group, composed of high-ranking officers of the Contracting Parties, prepares the work of the Executive Committee...". As for the latter, it consists of the ministers "responsible for the implementation of this Convention", according to article 132 of the Schengen Implementing Agreement.
The SEC shall make its decisions unanimously , but it is the Central Group, i.e. the "high-ranking officers" who decide on the submission of draft decisions to the Executive Committee.
As the Dutch experts very accurately underline "the drafters of the draft rules" [presumably the "high-ranking officers" themselves] thereby "casually grant the Central Group a competence which is essential in any international organisation: the competence to decide on submitting or not submitting certain draft decisions to the highest authority (in this case the Executive Committee) of the organisation".
This also implies the choice of the moment at which a draft decision will be presented to the SEC, i.e. the ministers.
This draws harsh criticism from the Standing Committee of Experts: "It seems undesirable to grant a body, composed of persons from the administration of the Contracting Parties who are politically unaccountable to any parliament (the "Central Group") such fundamental powers.
In most European states rule-making and policy making in the field covered by the Schengen Agreement is public. In obvious contrast to this presumption of openness, the draft rules of procedure of the SEC state that the "meetings of the Executive Committeee are not public, except for a different decision of the Executive Committee" and that "deliberations of the Executive Committee fall under secrecy, except for a different decision of the executive Committee" (article 12.1 of the draft rules).
Are the documents produced within the framework of the SEC public or secret? "Will the consequence of introducing international cooperation in the field at issue result in the abolition of public administration in that field?", the Dutch experts wonder and they claim that if "a national parliament is not allowed to dispose of the documents the Executive Committee needs to reach its decision, then that national parliamentary control cannot be performed effectively and it will not be well-informed".
The draft rules of the SEC leave most of these questions unanswered, the Standing Committee of Experts notices. "But the presumptions of secrecy point in the direction of authoritarian and unverifiable international administration.
Besides ample documentation, effective parliamentary control depends of a reasonable amount of time enabling the parliament to carry out its task.
Article 132.2 of the Schengen Implementing Agreement states that the final decision-making on a draft decision may be postponed upon request of a minister in the Executive Committee "until no more than two months after the submission of a draft". But, according to article 12 of the draft rules of the SEC, it would be the Central Group of officers and not the Executive Committee of ministers that fixes the start of the term during which the decision-making meant in article 132 of the agreement may be postponed. In the view of the expert committee, the term for parliamentary control can therby be considerably reduced in practice.
According to the draft rules of the SEC, the provisional agenda for a meeting of the Executive Committee of ministers, together with the accompanying documentation, has to be forwarded to the ministers "at least twenty-one days before the beginning of the meeting". Thus ministers are expected to decide on submitting or not submitting a request for postponement of decision-making after a term of only three weeks for receiving, handling, and if desired, discussing in parliament the forwarded documents.
This is "much too short a period" the Standing Committee of Experts remarks.
Well-informed decision-making by a parliament, the paper stresses, namely concerning international rule-making, requires "at least as much time as decision-making on a national law. The draft rules should be amended accordingly".
The presumption of secrecy is contrary to the declarations of the European Council of Edinburgh (1992) and Copenhague (1993) emphasising more "openness" from the Community, "the need for national parliaments to be more closely involved" and "the principle of citizens having the fullest possible access to information".
In the field within its competence the SEC may take decisions that are binding for the Schengen-States. By doing so the SEC takes over powers that up till now are executed in that field (of aliens law and criminal law) in each Schengen-State by the national government and its national parliament jointly. While the national governments are represented in the SEC, this is not the case of the parliaments.
As a conclusion the Standing Committee of experts calls for a change of certain articles of the draft Rules of Procedure of the SEC that reduce the "great loss of parliamentary influence and public [open] administration...to the smallest possible proportions".
The experts' detailed proposals for a reformulation of some sections of the draft Rules of Procedure of the SEC are presented in the second part of the paper.
Source: Permanente commissie van deskundigen in internationaal vreemdelingen-, vluchtlingen- en strafrecht (Standing Committee of Experts on International Immigration, Refugee and Criminal Law): Paper regarding the Rules of Procedure of the executive Committee of Schengen, CM93-207, Utrecht, 25.8.93, 12 p. in English. Available at the Standing Committee's secretariat: Postbus 638, NL-3500 AP Utrecht, Netherlands, Tel: +31/30 963900, Fax: +31/30 944410.