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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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Furthermore, these developments also indicated the growing importance of Union cooperation on issues traditionally dealt with by Interior Ministries. This was confirmed by the meeting of EU leaders in Tampere in 1999, which was devoted exclusively to discussing JHA matters. It “signalled the member states‟ political commitment to achieving real progress in the areas of asylum and immigration policy, border controls, and police and judicial cooperation.” 17 It was at the Tampere meeting that the idea of the creation of an “area of freedom, security and justice” envisaged by the Amsterdam Treaty was given a more concrete essence. Furthermore, together with the earlier articulations of the establishment of an “area without internal frontiers where the freedom of movement is 16 See for example European Commission, Area of Freedom, Security and Justice: Assessment of the Tampere Programme and Future Orientations, COM (2004) 401 final, 02.06.2004, pp. 3-4; European Commission, Strengthening Freedom, Security and Justice in the European Union: Report on the Implementation of the Hague Programme for 2005, MEMO/06/252, 28.06.2006, pp. 1-2; European Commission, Implementing the Hague Programme: the Way Forward, MEMO/06/254, 28.06.2006, p. 6; European Commission, From SIS to SIS II, MEMO/05/188, 01.06.2005, p.1 17

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

Palgrave Macmillan, 2005), p. 572

–  –  –

3.2.2. Two main bordering articulations in the Commission discourse on border controls and policies stemming from them The establishment of an area without internal frontiers was the dominant articulation used in Commission discourse on border controls in relation to the configuration of borders in the period from the mid 1980s to the adoption of the Treaty of Amsterdam. As we saw above, it stems from the efforts towards the establishment of the internal market in the EC/EU. However, as I discuss in detail in the next section, it was repeatedly linked in Commission discourse with the undertakings in the field of border controls. Nevertheless, given the delicate nature of the issues at hand as well as the way

cooperation on the matter has developed, the Commission has adopted the position that:

“Community legislation in this field [is to] be applied only to those cases where the legal security and uniformity provided by Community law constitutes the best instrument to achieve the desired goal. This would mean therefore that large scope would be left, at this stage, to cooperation among Member States notwithstanding the fact that the Commission should be permitted to participate, even on an informal basis … with a view of ensuring compliance with the before mentioned objectives.”18 This position reflects the powers the Commission had at the time in this field. This is the main reason why during that period, some of the important policy decisions were negotiated at intergovernmental forums, where the Commission did not have significant input.

The most prominent examples of undertakings in the area of border controls during the period in question are the Dublin Convention on Asylum and the External Borders Convention. Although characterised by lengthy ratification procedures, these Agreements managed to put some of the important foundations of European level cooperation in the areas concerned. Despite the limited role given to the Commission at that time, within the 18 European Commission, Communication on the Abolition of Controls of Persons at Intra-Community Borders, COM (88) 640 final, 7.12.1988, p. 6 87 scope provided for it by the Schengen Convention and the EC Treaties, there were still some important proposals it made. These are dealing with the following main issues: the abolition of border controls at intra-community borders19 and the establishment of the right to travel freely within the Community, 20 as well as the right to reside in another member state for EU citizens, 21 the establishment of a uniform format for Community visas, 22 and the Community policy on immigration. 23 These allow summarising the main areas related to border controls as measures directed towards implementing the provisions of freedom of movement of persons and residence within the EC/EU, immigration and asylum policy, common visa policy, border control and management.

The second major period in the development of border controls–related issues starts with the adoption of the Treaty of Amsterdam in 1997. At that point a new main articulation that configures borders was advanced – the establishment of “an area of freedom, security and justice”, which was added as a new objective of the EU. 24 The way in which this articulation configures borders follows the same logic as the one of the area without internal frontiers, which I explained above. In tune with the meaning given to the establishment of “an area without internal frontiers”, the Presidency Conclusions of the Tampere European Council define the newly proclaimed area of freedom, security and justice as one where the right to move freely throughout the Union is ensured. 25 However, 19 European Commission, Communication on the Abolition of Controls of Persons at Intra-Community Borders, COM (88) 640 final, 07.12.1988; European Commission, Abolition of Border Controls, SEC (92) 877 final, 08.05.1992 20 European Commission, Proposal for a Regulation Determining the Third Countries whose Nationals Must be in Possession of a Visa when Crossing the External Borders of the Member States, COM (93) 684 final, 10.12.1993; European Commission, Proposal for a Council Directive on the Right of Third-Country Nationals to Travel in the Community, COM (95) 346 final, 12.07.1995 21 European Commission, Proposal for a Council Directive on Voting Rights for Community Nationals in Local Elections in their Member State of Residence, COM (88) 371 final, 11.07.1988; European Commission, Amended Proposal for a Council Directive on Voting Rights for Community Nationals in Local Elections in their Member State of Residence, COM (89) 524 final, 17.10.1989 22 European Commission, Proposal for a Council Regulation Laying Down a Uniform Format for Visas, COM (94) 287 final, 13.07.1994 23 European Commission, Policies on Immigration and the Social Integration of Migrants in the European Community, SEC (90) 1813 final, 28.09.1990 24 Article 1, point 5 of the Treaty of Amsterdam Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts, p. 7, available at http://www.europarl.europa.eu/topics/treaty/pdf/amst-en.pdf, accessed on 29.07.2008 25

Tampere European Council, Presidency Conclusions, p. 2, available at

http://www.europarl.europa.eu/summits/tam_en.htm, accessed on 08.07.2008 88 according to the Commission, the new concept enshrined in the Amsterdam Treaty goes beyond the previous goals. It: “aims to give “freedom” a meaning beyond free movement of people across internal borders. It is also freedom to live in a law-abiding environment in the knowledge that public authorities are using everything in their individual and collective power (nationally, at the level of the Union and beyond) to combat and contain those who seek to deny or abuse that freedom.” 26 These aims can be read as a result of the gradual inclusion of new policy areas in the first pillar and of the increase of the number of areas in which the Commission has the power of legislative initiative. However, they can also be regarded as an expression of spillover effects, where integration and the decreased salience of internal borders move to new fields. As a result, the Commission discourse on JHA in this period often contains documents that are not directly linked to undertaking measures directed towards the establishment of the free movement of persons (which is concerned mainly with the freedom and security part of the area envisaged) but which are dealing instead with dismantling borders in the sphere of justice. Although there is a clear link between the first two and the third issue, the Commission documents aimed at creating the area of justice overall do not talk about border controls. Therefore, I have not examined in detail these articulations in the chapter.

The increased number of areas of concern is evident in the priorities outlined in the Commission documents. These are contained in the bi-annual Scoreboards, in which the Commission reviews the progress achieved on the Tampere Programme towards the establishment of the area of freedom, security and justice. 27 For example, the Scoreboard from the second half of 2003 enlists the following main areas of action: common EU asylum and immigration policy, genuine European area of justice, Union-wide fight against crime, policy on internal and external borders, visas, implementation of Article 62 of the EC Treaty, converting the Schengen acquis, citizenship of the Union, cooperation against drugs, stronger external action. 28 After the expiration of this Programme, a new one was 26 European Commission, Towards an Area of Freedom, Security and Justice, COM (1998) 459 final, 14.07.1998, p. 5 27 For a Table containing the full details of the Scoreboards issues until 2007 see http://ec.europa.eu/justice_home/doc_centre/wai/scoreboard_en.htm, accessed on 30.11.2007 28 European Commission, Biannual Update of the Scoreboard to Review the Progress on the Creation of an Area of “Freedom, Security and Justice” in the European Union, COM (2003) 812 final, 30.12.2003 89 adopted – the Hague Programme, which formulates some of the policy areas slightly differently in comparison to the 2003 Scoreboard.29 The detailed examination of the way in which Commission discourse configures borders in the areas listed in this document is presented in the next two sections. Although it spans documents related to a variety of these priorities, the issues most heavily related to border controls are the implementation of EU citizenship rights in practice, the fight against crime and terrorism, asylum and immigration, border management and visas. Therefore, my main focus has been to examine the configuration of borders in the documents on these issues.

As the presentation of the main policy areas related to border controls shows, an important distinction that arises from the discourse on these issues is the differentiation between nationals of EC/EU member states and nationals of non-EC/EU states.30 This division can be traced even in the documents predating the Treaty of the European Union but with its adoption it became formalised and even more widespread. This is due to the establishment of the EU citizenship (referred to above), which confers certain rights to individuals holding the nationality of one of the Union‟s member states. A by-product of this, however, is the inevitable construction of another category of people, usually referred to as Third Country Nationals (TCNs) who because of their lack of EU citizenship cannot enjoy certain rights.31 Importantly, it is exactly the developments at EC/EU level that have created this situation. This is significant because it has allowed the Union member states to employ restrictive measures over border controls at its outer edges.32 Thus, the development of EU level cooperation allowed member states to achieve their domestic policy objectives while 29 See European Commission, The Hague Programme: Ten Priorities for the Next Five Years. The Partnership for European Renewal in the Field of Freedom, Security and Justice, COM (2005) 184 final, 10.05.2005, pp. 4-7 30 The latter are referred to as Third Country Nationals (TCNs) in the rest of the thesis.

31 A notable exception in this respect is the category of TCNs, who are family members of an EU citizen. This category of people enjoys a number of rights, including in the area of free movement within the territory of the EU. Another type of TCNs that have rights coming closer to these conferred upon EU citizens are TCNs who are long-term residents in one of the EU member states. I look into these in more detail in the next chapter, Free Movement of People.

32 For arguments along these lines see for example Gallya Lahav, Immigration and Politics in New Europe – Reinventing Borders (Cambridge: Cambridge University Press, 2004); Andrew Geddes, „International Migration and State Sovereignty in an Integrating Europe‟, International Migration, 39: 6 (2001), pp. 21-42 90 avoiding the legal and political constraints that they would have faced at the national level. 33 Huysmans attributes the emergence of this restrictive regime to the two core assumptions that have guided the cooperation at EC/EU level, namely that illegal movements (including of people) happen primarily at the border and that the free movement of people is constituted by abolishing intra-Community border controls.

According to him both assumptions are contestable. 34 Nevertheless, they have informed policy-making, which unsurprisingly under these circumstances has meant that under the process of European integration, migration is constructed as a security question. 35 As a result of such assumptions, the efforts at EU level have been towards fortifying the borders through the adoption of restrictive measures at the external edges of the Union.

As den Boer argues this occurred because the Commission and the member states‟ governments accepted and reproduced this thinking. Eventually, this resulted in these ideas acquiring the status of knowledge beyond the realm of the contestable. 36 This claim is significant for the present study because it indicates a logic opposing the one that has inspired the efforts for the single market. In tune with the developments anticipated by Neo-functionalists, it implicates the Commission in the blatant construction of EU‟s

external borders. At the same time, according to Geddes, the supranational institutions:

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