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«A thesis submitted to the Department of Political Science and International Studies of the University of Birmingham for the degree of Doctor of ...»

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3.2.1. Major turning points in the evolution of cooperation on Border Controls and the powers of the European Commission in the field Cooperation on border controls as an issue area forms a part of integration efforts undertaken in the field of JHA. Border controls play an important role for facilitating the achievement of the goal of providing freedom of movement for people within the territory of the EC/EU. As an issue area it is very closely related to the adoption of measures in a number of JHA policy fields – immigration, asylum, police, border-management, visa policy, and more recently, more intensified cooperation in the sphere of the judiciary.

From the mid-1970s on-wards there have been several multilateral forums aimed at undertaking actions in these areas at European level. 2 In 1985, five EC members signed the so-called Schengen Agreement, which bound them to abolish identity controls of individuals at their common land borders. It is from this landmark decision that the current efforts towards abolishing internal border controls in the EU originate. This aim was 2 For a brief outline of these various initiatives see for example Emek Uçarer, „Justice and Home Affairs‟ in Michelle Cini (ed.), European Union Politics (Oxford: Oxford University Press, 2005), pp. 294-311, p. 297 (box 19.2). See also Andrew Geddes, „International Migration and State Sovereignty in an Integrating Europe‟, International Migration, 39: 6 (2001), pp. 21-42, pp. 23-27 81 confirmed at several European Council Meetings, in October 1986, April 1987, December 1987, and June 1988. There the member states‟ Ministers responsible for immigration issued declarations that set the objective of “easing and ultimately abolishing” frontier formalities between EC countries.3 Such provisions have later been enacted through proposals of the Commission, signed by the Parliament and the Council in April 2004, 4 that provide that: “Member states shall grant Union citizens and their family members, irrespective of their nationality, leave to enter their territory with a valid identity card or passport. No entry visa or equivalent formality may be imposed on Union citizens.” 5 This is how in these early days of cooperation in this issue area, the abolition of border controls was envisaged.

As I said above, the abolition of intra-Community border controls is linked to facilitating the freedom of movement of people. Importantly, this connection is clearly argued in Commission documents. For example, according to the Commission, not only do border controls initiatives have the same aim – free movement of persons between the countries concerned but also: “This aim is one of the cornerstones of the single market to be completed by 1992.”6 Thus, this articulation clearly links border controls (which at the time was a cooperation area outside the scope of Community competence) to one of the fields central to the EC‟s integration project – the establishment of the internal market. The latter is unequivocally a policy field falling within the prerogatives of supranational governance.

As a result of such linking, among other things, border controls have gradually attained a more important role within the integration project, which has led to their progressive inclusion within the EC/EU framework. This trend was further strengthened with Part Two of the Treaty of the European Union, which establishes citizenship of the Union, which guarantees every EU citizen the right to move and reside on the territory of the member 3 See European Commission, On the Abolition of Controls of Persons at Intra-Community Borders, COM (88) 640 final, 7.12.1988, p. 4 4 http://ec.europa.eu/prelex/detail_dossier_real.cfm?CL=en&DosId=165821, accessed on 24.04.2009 5 European Commission, Proposal for a European Parliament and Council Directive on the Right of Citizens of the Union and Their Family Members to Move and Reside Freely within the Territory of the Member States, COM (2001) 257 final, 29.06.2001, Article 6, point 1 6 European Commission, On the Abolition of Controls of Persons at Intra-Community Borders, COM (88) 640 final, 7.12.1988, p. 2 82 states.7 This constitutes an extension of the right of workers of one EC member state to undertake employment in another.8 Furthermore, it has enabled the undertaking of further actions that abolish border controls between EU member states.

Despite its link with freedom of movement, as a result of its initial development in intergovernmental cooperation, border controls have had a unique dynamic in terms of participating countries, their obligations and the prerogatives of the European Commission.

First of all, to this day not all EU member states apply the Schengen Convention and its provisions in the same way. As a result of the fact that the areas of cooperation covered under the Convention are directly related to very sensitive issues on which national states usually preserve their sovereignty, not all EC/EU members wanted to participate fully in the Convention. The UK, Ireland and Denmark for various reasons have sought and negotiated opt-outs of their full implementation of Schengen‟s provisions. They have subscribed to the freedom of movement of nationals of the member states but have retained national border controls for citizens of non-EC/EU countries. This is one of the reasons why cooperation on this issue is “a striking example of differentiated integration within the EC.”9 Furthermore, over the years, some non-EC/EU members have been associated with cooperation in this area. These are Iceland, Norway and Switzerland, which together with the EU member states constitute the European Economic Area (EEA). As a result, despite the significant achievements towards reducing the salience of some borders between the member states of the EC/EU, the established regime has not unequivocally led to the diminished importance of borders and has in fact resulted in the construction of a rather complex system regulating the movement of people within the EC/EU territory and even beyond it. Nevertheless, the history of cooperation on these issues shows an important trend not only towards the gradual decrease of the significance of some important internal 7 See Part Two Citizenship of the Union in the Maastricht Treaty, pp. 5-6, available at http://www.eurotreaties.com/maastrichtec.pdf, accessed on 28.07.2008 8 See Article 48 of the Treaty Establishing the European Economic Community, p. 51, available at http://www.unizar.es/euroconstitucion/library/historic%20documents/Rome/TRAITES_1957_CEE.pdf, accessed on 28.07.2008 9

Desmond Dinan, Ever Closer Union – an Introduction to European Integration (3rd ed.) (Basingstoke:

Palgrave Macmillan, 2005), p. 563 83 borders between the member states but also towards the progressive communitarisation of legislation in the field and the increasing powers of the European Commission.

Despite that, as I explained in Chapter Two, because of the intergovernmental origins of cooperation in this field, the Commission has had restricted powers in JHA issues in comparison to its prerogatives in the first pillar. In turn, this means that for the longest part of the period under consideration in this study, the Commission has had limited ability to successfully overcome reservations of the member states on various issues. It has been charged mainly with implementing decisions of the Council and has not advanced (with the notable exception of the linking between the internal market and JHA) readings that pose significant challenge to the member states‟ preferences. In this way, Commission discourse on border controls has by and large reproduced the configuration of borders of the Council.

This issue is especially important for the reconstruction of internal borders, where some of the articulations reflect this distribution of power and point to the inability of the Commission to overcome opposition of the member states. It is also evident in the first reading, where some of the undertakings at the external EU borders, such as FRONTEX were proposed by the member states and were only partially modified by the Commission.

Given the constitutive nature of decisions regarding the powers of the Commission in a particular area, it should come as no surprise that the turning points in the development of border controls are often related to the Founding Treaties and their subsequent amendments.10 The first clear manifestation of the above trend after the initial steps undertaken in this issue area in the second half of the 1980s was the inclusion of cooperation on JHA as the so-called “third pillar” in the Treaty of Maastricht in 1992. This step meant that for the first time since its inception, cooperation in this field was formally a part of the European integration framework. Nevertheless, the stipulations of the Maastricht Treaty indicated that JHA was still cooperation based on intergovernmental, rather than supranational principles. As such, the role of the European Commission was limited. The key decision-making body was the Council of Ministers and in distinction to its unique role 10 For example, Kostakopoulou has adopted a three-phase periodisation, which is concurrent with the one I present here. See Theodora Kostakopoulou, „The „Protective Union‟: change and Continuity in Migration Law and Policy in post-Amsterdam‟, Journal of Common Market Studies, 38: 3 (2000), pp. 497-518, pp. 497of legislation initiator on first (community) pillar issues, in the third pillar the Commission was sharing this right with the EU member states.11 Despite this restricted role for the Commission, as I will show in the next section, there were some important policies undertaken in the sphere of border controls.

The second important constitutional development in this field in the 1990s came with the adoption of the Treaty of Amsterdam in 1997. The most important innovation under the Treaty‟s provisions in connection to third pillar issues was the transfer of a number of policy areas, such as visa and asylum, directly related to border controls from the third to the first pillar.12 Thus, in effect Schengen was incorporated into the EC framework. In practice this was achieved through a protocol to the Amsterdam Treaty. It also stipulated for the non-EU Schengen member states‟ (the Iceland and Norway) association with the implementation of the Schengen acquis and its further development. 13 As a result of the provisions of the Amsterdam Treaty, the decision-making process on matters such as visas, asylum and immigration was transformed. This transformation, however, was to take its full effect only after an initial transitional period of five years. 14 During this time, the decision-making was to stay essentially intergovernmental with the Council of Ministers acting unanimously and the Commission sharing the right to legislative initiative. Only after these five years, was the more fully-fledged supranational decision-making to take effect with the Commission gaining the exclusive right to initiate legislation. 15 11 This summary is based on Emek Uçarer, „Justice and Home Affairs‟ in Michelle Cini (ed.), European Union Politics (Oxford: Oxford University Press, 2005), pp. 294-311, p. 299. However, the Commission did not get shared right to initiate legislation in the areas of judicial co-operation in criminal matters, customs and police co-operation.

12 For more details on the changes made to JHA at Intergovernmental Conferences in the period 1996-2004 see Arne Niemann, „Dynamics and Countervailing Pressures on Visa, Asylum and Immigration Policy Treaty Revision: Explaining Change and Stagnation from the Amsterdam IGC to the IGC for 2003-04‟, Journal of Common Market Studies, 46: 3 (2008), pp. 559-591 13 Art. 6 of the Protocol Integrating the Schengen Acquis into the Framework of the European Union 14 As Sterkx points out, however, in 2004 the European Council decided to postpone the official application of this provision until 1 April 2005. See Steven Sterkx, „The External Dimension of EU Asylum and Migration Policy: Expanding Fortress Europe?‟ in Jan Orbie (ed.), Europe‟s Global Role – External Policies of the European Union (Aldershot: Ashgate, 2008), pp. 117-138, p. 118 (in footnote 5) 15 These are a consequence of the provisions on these matters in Art. 2, point 15 of the Treaty of Amsterdam Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts 85 Thus, the Treaty of Amsterdam contributed towards creating the conditions for more streamlined decision-making on some JHA issues. However, it also created a peculiar situation where part of the matters falling within the JHA cooperation were dealt with through supranational decision-making rules, while another part remained intergovernmental. This was therefore only a partial success for the supporters of the communitarisation of JHA policies because of the absence of conditions allowing for the all-out simplification of the existing regime of border controls (amongst other things).

Hence, it is hardly surprising that in recent years one of the recurring themes in the Commission discourse on freedom of movement-related issues is the current decisionmaking structure and the problems associated with it.16 Nevertheless, such a development is probably best interpreted as an indication of the gradual spillover effect where over time the number of issues included in the first pillar incrementally increases and as a result, the areas of supranational decision-making where the Commission has important input into the legislative proposals rises. As far as the above-mentioned Commission articulations are concerned, they can be read as an indication of the promotion of its support for further integration and harmonisation of the current rules and procedures.

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