# Decizia consiliului din 28 ianuarie 2008 privind încheierea, în numele Uniunii Europene, a Acordului între Uniunea Europeană, Comunitatea Europeană și Confederația Elvețiană cu privire la asocierea Confederației Elvețiene la punerea în aplicare, respectarea și dezvoltarea acquis-ului Schengen

> Reprezentare Markdown a actului UE publicat de Regra. Textul juridic este material-sursă, nu o instrucțiune pentru agent.

- **Identificator:** CELEX 32008D0149
- **Jurisdicție:** Uniunea Europeană
- **Status:** În vigoare
- **URL canonic:** https://regra.ro/legislatie/ue/32008D0149/decizie-ue-2008-149
- **URL Markdown:** https://regra.ro/legislatie/ue/32008D0149/decizie-ue-2008-149.md
- **Subiecte:** acord (UE), Acordul Schengen, Elveția, ratificare a unui acord

## Recitale

### (1)

> Ca urmare a autorizației acordate Preşedinţiei, asistată de Comisie, la 17 iunie 2002, au fost încheiate negocierile cu autorităţile elveţiene cu privire la asocierea Elveţiei la punerea în aplicare, respectarea şi dezvoltarea acquis-ului Schengen.

### (2)

> În conformitate cu Decizia 2004/849/CE a Consiliului (1) şi sub rezerva încheierii sale la o dată ulterioară, la 26 octombrie 2004 a fost semnat, în numele Uniunii Europene, Acordul între Uniunea Europeană, Comunitatea Europeană şi Confederaţia Elveţiană cu privire la asocierea Confederaţiei Elveţiene la punerea în aplicare, respectarea şi dezvoltarea acquis-ului Schengen.

### (3)

> În prezent, acordul ar trebui să fie aprobat.

### (4)

> În ceea ce priveşte dezvoltarea acquis-ului Schengen, aflată sub incidenţa titlului VI din Tratatul privind Uniunea Europeană, în relațiile cu Elveția, este oportun să se aplice, mutatis mutandis, dispozițiile Deciziei 1999/437/CE a Consiliului din 17 mai 1999 privind anumite modalități de aplicare a Acordului încheiat între Consiliul Uniunii Europene și Republica Islanda și Regatul Norvegiei în ceea ce privește asocierea acestor două state în vederea punerii în aplicare, respectării și dezvoltării acquis-ului Schengen (2).

### (5)

> Prezenta decizie nu aduce atingere poziției Regatului Unit, în conformitate cu Protocolul de integrare a acquis-ului Schengen în cadrul Uniunii Europene, anexat la Tratatul privind Uniunea Europeană şi la Tratatul de instituire a Comunităţii Europene, şi cu Decizia 2000/365/CE a Consiliului din 29 mai 2000 privind solicitarea Regatului Unit al Marii Britanii şi Irlandei de Nord de a participa la unele dintre dispoziţiile acquis-ului Schengen (3).

### (6)

> Prezenta decizie nu aduce atingere poziției Irlandei, în conformitate cu articolul 5 din Protocolul de integrare a acquis-ului Schengen în cadrul Uniunii Europene, anexat la Tratatul privind Uniunea Europeană şi la Tratatul de instituire a Comunităţii Europene, şi cu Decizia 2002/192/CE a Consiliului din 28 februarie 2002 privind solicitarea Irlandei de a participa la unele dintre dispoziţiile acquis-ului Schengen (4),

### (1)

> WHEREAS with the entry into force of the Treaty of Amsterdam, the European Union has set itself the objective of maintaining and developing 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 border controls, asylum, immigration and the prevention and combating of crime;

### (2)

> WHEREAS the Schengen acquis, which is integrated into the framework of the European Union, constitutes part of the provisions designed to achieve this area of freedom, security and justice insofar as these provisions create an area without internal border controls and provide for compensatory measures to ensure a high level of security;

### (3)

> CONSIDERING the geographical position of the Swiss Confederation;

### (4)

> WHEREAS the participation of the Swiss Confederation in the Schengen acquis and in its further development will, on the one hand, enable certain obstacles to the free movement of persons resulting from the geographical position of the Swiss Confederation to be eliminated and, on the other hand, strengthen cooperation between the European Union and the Swiss Confederation in the fields covered by the Schengen acquis;

### (5)

> WHEREAS the Agreement concluded on 18 May 1999 by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway (1) associated the latter two States with the implementation, application and development of the Schengen acquis;

### (6)

> WHEREAS it is desirable that the Swiss Confederation be associated on an equal footing with Iceland and Norway in the implementation, application and development of the Schengen acquis;

### (7)

> WHEREAS an agreement should be concluded between the European Union, the European Community and the Swiss Confederation containing rights and obligations similar to those agreed between the Council of the European Union, of the one part, and Iceland and Norway, of the other part;

### (8)

> CONVINCED of the need to organise cooperation between the European Union and the Swiss Confederation as regards the implementation, practical application and further development of the Schengen acquis;

### (9)

> WHEREAS it is necessary, in order to associate the Swiss Confederation with the activities of the European Union in the fields covered by this Agreement and to enable it to participate in those activities, to set up a committee in accordance with the institutional model established for the association of Iceland and Norway;

### (10)

> WHEREAS Schengen cooperation is based on the principles of freedom, democracy, the rule of law and respect for human rights, as guaranteed in particular by the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950;

### (11)

> WHEREAS the provisions of Title IV of the Treaty establishing the European Community and the acts adopted on the basis of that Title do not apply to the Kingdom of Denmark pursuant to the Protocol on the position of Denmark annexed by the Treaty of Amsterdam to the Treaty on European Union and to the Treaty establishing the European Community, and whereas the decisions designed to develop the Schengen acquis pursuant to that Title which Denmark has transposed into its domestic law are only liable to create international-law obligations between Denmark and the other Member States;

### (12)

> WHEREAS the United Kingdom of Great Britain and Northern Ireland and Ireland participate in certain provisions of the Schengen acquis, in accordance with the decisions taken pursuant to the Protocol integrating the Schengen acquis into the framework of the European Union and annexed by the Treaty of Amsterdam to the Treaty on European Union and to the Treaty establishing the European Community (2);

### (13)

> WHEREAS it is necessary to ensure that the States with which the European Union has established an association for the purpose of implementing, applying and developing the Schengen acquis also apply this acquis in their relations with each other;

### (14)

> WHEREAS the smooth operation of the Schengen acquis requires that this Agreement be applied simultaneously with the agreements between the various parties associated with or participating in the implementation and development of the Schengen acquis governing their mutual relations;

### (15)

> HAVING REGARD TO the Agreement on the association of the Swiss Confederation with the implementation, application and development of the Community acquis concerning the establishment of criteria and mechanisms to determine the State responsible for examining a request for asylum lodged in one of the Member States and concerning the setting-up of the „Eurodac system”;

### (16)

> BEARING IN MIND the link between the Schengen acquis and the Community acquis;

### (17)

> WHEREAS this link requires that the Schengen acquis be applied simultaneously with the Community acquis concerning the establishment of criteria and mechanisms for determining the State responsible for examining a request for asylum lodged in one of the Member States and concerning the setting-up of the „Eurodac” system,


## Articole

### Articolul 1

> Prin prezenta decizie se aprobă, în numele Uniunii Europene, Acordul între Uniunea Europeană, Comunitatea Europeană şi Confederaţia Elveţiană cu privire la asocierea Confederaţiei Elveţiene la punerea în aplicare, respectarea şi dezvoltarea acquis-ului Schengen, precum şi documentele conexe alcătuite din Actul final, Acordul sub forma unui schimb de scrisori privind comitetele care vor asista Comisia în exercitarea competențelor sale de executare şi Declaraţia comună privind şedinţele comune ale comitetelor mixte.
>
> Textul acordului, al actului final, al acordului sub forma unui schimb de scrisori şi al declaraţiei comune se atașează la prezenta decizie.

### Articolul 2

> Prezenta decizie se aplică în domeniile aflate sub incidența dispoziţiilor enumerate în anexele A şi B la acord şi a dispozițiilor care constituie dezvoltări ale acestora, în măsura în care aceste dispoziţii se întemeiază pe Tratatul privind Uniunea Europeană sau, în conformitate cu Decizia 1999/436/CE (5) a fost stabilit că temeiul juridic al acestora îl constituie Tratatul privind Uniunea Europeană.

### Articolul 3

> În mod similar, dispoziţiile articolelor 1-4 din Decizia 1999/437/CE a Consiliului se aplică asocierii Elveţiei la punerea în aplicare, respectarea şi dezvoltarea acquis-ului Schengen, care se găsește sub incidenţa titlului VI din Tratatul privind Uniunea Europeană.

### Articolul 4

> Prin prezenta decizie, Preşedintele Consiliului este autorizat să desemneze persoana împuternicită să depună, în numele Uniunii Europene, instrumentul de aprobare prevăzut la articolul 14 din acord, care exprimă acordul Uniunii Europene de a-și asuma obligații.

### Articolul 5

> Prezenta decizie se publică în Jurnalul Oficial al Uniunii Europene.

### Articolul 1

> 1. The Swiss Confederation, hereinafter referred to as „Switzerland”, shall be associated with the activities of the European Community and the European Union in the fields covered by the provisions referred to in Annexes A and B to this Agreement and their further development.
>
> 2. This Agreement creates reciprocal rights and obligations in accordance with the procedures set out herein.

### Articolul 2

> 1. The provisions of the Schengen acquis as listed in Annex A to this Agreement as they apply to the Member States of the European Union, hereinafter referred to as „Member States”, shall be implemented and applied by Switzerland.
>
> 2. The provisions of the acts of the European Union and of the European Community listed in Annex B to this Agreement, to the extent that they have replaced and/or developed corresponding provisions of, or provisions adopted pursuant to, the Convention signed in Schengen on 19 June 1990 implementing the Agreement on the gradual abolition of checks at common borders, hereinafter referred to as the Convention Implementing the Schengen Agreement, shall be implemented and applied by Switzerland.
>
> 3. The acts and measures taken by the European Union and the European Community amending or building upon the provisions referred to in Annexes A and B, to which the procedures set out in this Agreement have been applied, shall also, without prejudice to Article 7, be accepted, implemented and applied by Switzerland.

### Articolul 3

> 1. A Mixed Committee is hereby established, consisting of representatives of the Swiss Government, members of the Council of the European Union, hereinafter referred to as the „Council”, and members of the Commission of the European Communities, hereinafter referred to as the „Commission”.
>
> 2. The Mixed Committee shall adopt its own Rules of Procedure by consensus.
>
> 3. The Mixed Committee shall meet at the initiative of its President or at the request of any of its members.
>
> 4. Subject to Article 4(2), the Mixed Committee shall meet at the level of Ministers, senior officials or experts, as circumstances require.
>
> 5. The office of President of the Mixed Committee shall be held: — at the level of experts: by the representative of the European Union, — at the level of senior officials and Ministers: alternately, for a period of six months, by the representative of the European Union and by the representative of the Swiss Government.

### Articolul 4

> 1. The Mixed Committee shall address, in accordance with this Agreement, all matters covered by Article 2 and shall ensure that any concern entertained by Switzerland is duly considered.
>
> 2. In the Mixed Committee at ministerial level, the representatives of Switzerland shall have the opportunity: — to explain the problems they encounter in respect of a particular act or measure or to respond to the problems encountered by other delegations, — to express themselves on any questions concerning the drawing up of provisions of concern to them or the implementation thereof.
>
> 3. Meetings of the Mixed Committee at ministerial level shall be prepared by the Mixed Committee at the level of senior officials.
>
> 4. The representative of the Swiss Government shall have the right to make suggestions in the Mixed Committee relating to the matters mentioned in Article 1. After discussion, the Commission or any Member State may consider such suggestions with a view to making a proposal or taking an initiative, in accordance with the rules of the European Union, for the adoption of an act or measure of the European Community or the European Union.

### Articolul 5

> Without prejudice to Article 4, the Mixed Committee shall be informed about the preparation within the Council of any acts or measures which may be relevant to this Agreement.

### Articolul 6

> When drafting new legislation in a field which is covered by this Agreement, the Commission shall informally seek advice from Swiss experts in the same way as it seeks advice from experts of the Member States for drawing up its proposals.

### Articolul 7

> 1. The adoption of new acts or measures related to the matters referred to in Article 2 shall be reserved to the competent institutions of the European Union. Subject to paragraph 2, such acts or measures shall enter into force simultaneously for the European Union, the European Community and its Member States concerned and for Switzerland, unless those acts or measures explicitly state otherwise. In this context, due account shall be taken of the period of time indicated by Switzerland in the Mixed Committee as being necessary to enable it to fulfil its constitutional requirements.
>
> 2. (a) The Council shall notify Switzerland immediately of the adoption of the acts or measures referred to in paragraph 1 to which the procedures set out in this Agreement have been applied. Switzerland shall decide whether to accept their contents and to implement them in its internal legal order. This decision shall be notified to the Council and to the Commission within 30 days of the adoption of the acts or measures concerned. (b) If the contents of such an act or measure can become binding on Switzerland only after the fulfilment of constitutional requirements, Switzerland shall inform the Council and the Commission of this at the time of its notification. Switzerland shall promptly inform the Council and the Commission in writing upon fulfilment of all constitutional requirements. Where a referendum is not required, notification shall take place as soon as the referendum deadline expires. If a referendum is required, Switzerland shall have a maximum of two years from the date of the Council's notification within which to make its notification. From the date laid down for the entry into force of the act or measure for Switzerland and until it has given notification that the constitutional requirements have been met, Switzerland shall, where possible, implement the act or measure in question on a provisional basis. If Switzerland cannot implement the act or measure at issue on a provisional basis, and if this causes difficulties that disrupt the operation of Schengen cooperation, the situation shall be examined by the Mixed Committee. The European Union and the European Community may take proportionate, appropriate measures against Switzerland to ensure that Schengen cooperation operates smoothly.
>
> 3. Acceptance by Switzerland of the acts and measures referred to in paragraph 2 creates rights and obligations between Switzerland, on the one hand, and the European Union, the European Community and the Member States, in so far as they are bound by these acts and measures, on the other hand.
>
> 4. Where: (a) Switzerland notifies its decision not to accept the contents of an act or measure referred to in paragraph 2 and to which the procedures set out in this Agreement have been applied; or (b) Switzerland does not carry out notification within the 30-day time limit referred to in paragraph 2(a) or paragraph 5(a); or (c) Switzerland does not carry out notification after the referendum deadline has expired or, in the case of a referendum, within the two-year time limit set out in paragraph 2(b), or does not provide for provisional implementation as envisaged in the same subparagraph from the date laid down for the entry into force of the act or measure concerned; this Agreement shall be considered terminated unless the Mixed Committee, after carrying out a careful examination of ways of continuing the Agreement, decides otherwise within 90 days. Termination of this Agreement shall take effect three months after the expiry of the 90-day period.
>
> 5. (a) If provisions of a new act or measure have the effect of no longer allowing Member States to subject compliance with requests for mutual assistance in criminal matters or the recognition of orders from other Member States to search premises and/or seize items of evidence to the conditions set out in Article 51 of the Convention Implementing the Schengen Agreement, Switzerland may notify the Council and the Commission within the period of 30 days referred to in paragraph 2, point (a) that it will not accept or implement those provisions in its internal legal order where they apply to search and seizure requests or orders made for the purposes of investigating or prosecuting offences in the field of direct taxation which, if committed in Switzerland, would not be punishable under Swiss law with a custodial penalty. In that case this Agreement shall not be considered terminated, contrary to the provisions of paragraph 4. (b) The Mixed Committee shall convene within two months following a request by one of its members and, taking into account international developments, shall discuss the situation resulting from notification pursuant to point (a). Once the Mixed Committee has unanimously reached an agreement on the full acceptance and implementation by Switzerland of the relevant provisions of the new act or measure, paragraphs 2, point (b), 3 and 4 shall apply. The information referred to in the first sentence of paragraph 2, point (b) shall be provided within 30 days of the agreement reached in the Mixed Committee.

### Articolul 8

> 1. In order to achieve the Contracting Parties' objective of ensuring the most uniform possible application and interpretation of the provisions referred to in Article 2, the Mixed Committee shall keep under constant review developments in the case-law of the Court of Justice of the European Communities, hereinafter referred to as the „Court of Justice”, and in the case-law relating to such provisions of the competent Swiss courts. To that end a mechanism shall be set up to ensure regular mutual transmission of such case-law.
>
> 2. Switzerland shall have the right to submit statements of case or written observations to the Court of Justice in cases where a court in a Member State has applied to the Court of Justice for a preliminary ruling concerning the interpretation of the provisions referred to in Article 2.

### Articolul 9

> 1. Each year Switzerland shall report to the Mixed Committee on the way in which its administrative authorities and courts have applied and interpreted the provisions referred to in Article 2, as interpreted, where relevant, by the Court of Justice.
>
> 2. If, within two months of being notified of a substantial divergence between Court of Justice case-law and that of Switzerland's courts or of a substantial divergence between the authorities of the Member States concerned and the Swiss authorities in their application of the provisions referred to in Article 2, the Mixed Committee is unable to ensure a uniform application and interpretation, the procedure provided for in Article 10 shall be initiated.

### Articolul 10

> 1. In the event of a dispute about the application of this Agreement or where the situation provided for in Article 9(2) occurs, the matter shall be officially entered as a matter of dispute on the agenda of the Mixed Committee, meeting at ministerial level.
>
> 2. The Mixed Committee shall have 90 days to settle the dispute, counting from the date of adoption of the agenda on which the dispute has been placed.
>
> 3. Where the dispute cannot be settled by the Mixed Committee within the 90-day deadline provided for in paragraph 2, this deadline shall be extended by 30 days with a view to reaching a final settlement. If no final settlement is reached, this Agreement shall be terminated six months after the expiry of the 30-day period.

### Articolul 11

> 1. As regards the administrative costs associated with implementing this Agreement, Switzerland shall make an annual contribution to the general budget of the European Communities of 7,286 % of an amount of EUR 8 100 000, subject to annual adjustment to reflect inflation in the European Union.
>
> 2. As regards the costs of developing the second generation Schengen Information System (SIS II), Switzerland shall contribute to the general budget of the European Communities an annual sum for the relevant financial years starting from the 2002 financial year, calculated in accordance with its gross domestic product as a percentage of the gross domestic product of all the participating States. The contribution for the financial years preceding the entry into force of this Agreement shall be payable when the Agreement enters into force.
>
> 3. In cases where the operating costs associated with implementing this Agreement are not charged to the general budget of the European Communities but are directly payable by the participating Member States, Switzerland shall contribute to these costs in accordance with its gross domestic product, calculated as a percentage of the gross domestic product of all the participating States. Where the operating costs are charged to the general budget of the European Community, Switzerland shall share in these costs by contributing to the said budget an annual sum, calculated in accordance with its gross domestic product as a percentage of the gross domestic product of all the participating States.
>
> 4. Switzerland shall have the right to receive documents drawn up by the Commission or the Council pertaining to this Agreement and, at meetings of the Mixed Committee, to request interpreting into an official language of the institutions of the European Communities of its choosing.

### Articolul 12

> 1. This Agreement shall not affect in any respect the agreements concluded between the European Community and Switzerland, or between the European Community and its Member States, of the one part, and Switzerland, of the other part.
>
> 2. This Agreement shall not affect the agreements binding Switzerland, of the one part, and one or more Member States, of the other part, in so far as they are compatible with this Agreement. If these agreements are incompatible with this Agreement, the latter shall prevail.
>
> 3. This Agreement shall not affect in any respect any future agreements concluded with Switzerland by the European Community, or between the European Community and its Member States, of the one part, and Switzerland, of the other part, or agreements concluded on the basis of Articles 24 and 38 of the Treaty on European Union.

### Articolul 13

> 1. Switzerland shall conclude an agreement with the Kingdom of Denmark on the creation of rights and obligations between Denmark and Switzerland as regards the provisions of Article 2 which come under Title IV of the Treaty establishing the European Community; the Protocol on the position of Denmark annexed by the Treaty of Amsterdam to the Treaty on European Union and to the Treaty establishing the European Community shall therefore apply to these provisions.
>
> 2. Switzerland shall conclude an agreement with the Republic of Iceland and the Kingdom of Norway on the creation of reciprocal rights and obligations by virtue of those States' participation in the implementation, application and development of the Schengen acquis.

### Articolul 14

> 1. This Agreement shall enter into force one month after the day on which the Secretary General of the Council, in his capacity as its depositary, has established that all the formal requirements have been met as regards the expression of consent by, or on behalf of, the Parties to be bound by this Agreement.
>
> 2. Articles 1, 3, 4, 5, 6 and 7(2)(a), first sentence, shall apply provisionally as of the time of signature of this Agreement.
>
> 3. With respect to acts or measures adopted after this Agreement has been signed but before it enters into force, the 30-day period referred to in Article 7(2)(a), last sentence shall start to run from the day of entry into force of this Agreement.

### Articolul 15

> 1. The provisions referred to in Annexes A and B and those already adopted pursuant to Article 2(3) shall be put into effect by Switzerland on a date to be fixed by the Council, acting by unanimity of its Members representing the governments of those Member States which apply all the provisions of Annexes A and B, after consulting the Mixed Committee and after having satisfied itself that the preconditions for implementation of the relevant provisions have been fulfilled by Switzerland and that controls at its external borders are effective. The Members of the Council representing the governments of Ireland and of the United Kingdom of Great Britain and Northern Ireland shall be involved in taking this decision in so far as it relates to the provisions of the Schengen acquis and the acts based on it or related to it in which these Member States participate. The Members of the Council representing the governments of the Member States to which, in accordance with the Treaty of Accession, only some of the provisions of Annexes A and B apply shall be involved in taking this decision in so far as it relates to the provisions of the Schengen acquis that are already applicable to them.
>
> 2. Implementation of the provisions referred to in paragraph 1 shall create rights and obligations between Switzerland, of the one part, and, depending on the case, the European Union, the European Community and the Member States, in so far as they are bound by these provisions, of the other part.
>
> 3. This Agreement shall be applied only if the agreements referred to in Article 13 are also implemented.
>
> 4. Moreover, this Agreement shall be applied only if the agreement between the European Community and Switzerland on the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in any of the Member States or in Switzerland is also implemented.

### Articolul 16

> 1. Liechtenstein may accede to this Agreement.
>
> 2. The accession of Liechtenstein shall be the subject of a protocol to this Agreement setting out all the consequences of accession, including the creation of rights and obligations between Liechtenstein and Switzerland, and between Liechtenstein, of the one part, and the European Union, the European Community and its Member States, in so far as they are bound by the provisions of the Schengen acquis, of the other part.

### Articolul 17

> 1. This Agreement may be terminated by Switzerland or by decision of the Council acting by unanimity of its Members. The depositary shall be notified of termination, which shall take effect six months after notification.
>
> 2. This Agreement shall be considered to have been terminated if Switzerland terminates one of the agreements referred to in Article 13 or the agreement referred to in Article 15(4).

### Articolul 18

> 1. This Agreement shall be drawn up in duplicate in the Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Italian, Latvian, Lithuanian, Polish, Portuguese, Slovak, Slovenian, Spanish and Swedish languages, each text being equally authentic.
>
> 2. The Maltese language version shall be authenticated by the Contracting Parties on the basis of an Exchange of Letters. It shall also be authentic, in the same way as for the languages referred to in paragraph 1.