EU:Europe's highest court has ruled that the EU can exclude the Republic and the UK from the shaping of measures designed to protect Europe's borders.
The decision by the European Court of Justice (ECJ) is a disappointment for the Government, which is now likely to lose influence over a raft of new justice legislation being developed in Brussels. It also highlights the potentially negative implications of Taoiseach Bertie Ahern's decision to retain Irish opt-outs over justice in the EU reform treaty.
"The United Kingdom and Ireland may take part in the adoption of measures developing the Schengen acquis only to the extent that they already take part in their provisions on which the measures are based," the court said in its ruling yesterday.
The Schengen acquis is the body of EU law that creates the legal base for the EU border system, which is known as the Schengen system. Ireland and Britain have both opted out of the core element of this legislation, which relates to the protection of borders, but they have opted in to take part in measures to boost police co-operation.
The case decided by the European Court of Justice arises from a legal challenge by Britain, which sought to annul EU regulations agreed by member states in 2004 that created an EU border agency called Frontex and a new system of biometric passports.
London informed the Council of Ministers in February 2004 that it wanted to take part in the adoption of the regulation establishing the Frontex agency. It also sought to become involved in the drafting of the regulation establishing standards for security features and biometrics in passports without opting in to the full Schengen system.
Its request was rejected by those other EU states at the Council of Ministers that have fully opted in to Schengen. They want to stop states with opt-outs being able to help shape new legislation which they may later choose to opt out of when implemented.
Britain was joined by Ireland and Slovakia when it lodged its appeal against the council's decision, while Spain and the Netherlands intervened to support the council.
In its ruling, the court concluded that Britain and Ireland could only take part in the adoption of new measures in connection with Schengen when they had already opted in to the original Schengen legislation.
This means both countries can continue to take part in police co-operation initiatives such as sharing DNA samples across borders, but they will not be automatically granted the option of taking part in border measures.
Fine Gael MEP Gay Mitchell said the ruling highlighted the dangers posed by the Government negotiation of opt-outs in the new EU reform treaty in the justice field. "These opt-outs seemed a good idea at the time but if we opt out we can't expect to be involved in shaping new laws," he said.
"It is also dangerous for Ireland - because we are a small member state we have less influence that a state such as Britain, which can probably afford to opt out of measures and still retain influence at EU level."
The decision could also have practical implications for the fight against terrorism and illegal immigration, as Schengen states are not legally obliged to share the biometric data in the common EU biometric passport system with either Britain or Ireland.
However, a spokesman for the council said yesterday that standardised passport systems were likely to be established between Schengen states and those outside the system. On December 21st the Schengen zone extends to Poland, Estonia, Lithuania, Latvia, Hungary, Slovenia, Slovakia, Malta and the Czech Republic.
The Government said it would study the judgment before commenting.