«A thesis submitted to the Department of Political Science and International Studies of the University of Birmingham for the degree of Doctor of ...»
“have done their best to push towards harmonization and to make existing harmonization as expansive as possible.”37 For example, as Boswell maintains, after 1997 the Commission has utilised its new powers and has put forward a number of proposals and has developed new methods for monitoring harmonisation. 38 Thus, regarding the first reading, the 33 Andrew Geddes, „International Migration and State Sovereignty in an Integrating Europe‟, International Migration, 39: 6 (2001), pp. 21-42, p. 28 34 Jef Huysmans, „The European Union and the Securitization of Migration‟, Journal of Common Market Studies, 38: 5 (2000), pp. 751-777, p. 759. Other studies make the same argument. See for example Jörg Monar, „The Dynamics of Justice and Home Affairs: Laboratories, Driving Factors and Costs‟, Journal of Common Market Studies, 39: 4 (2001), pp. 747-764 35 Jef Huysmans, „The European Union and the Securitization of Migration‟, Journal of Common Market Studies, 38: 5 (2000), pp. 751-777 36 Den Boer cited in Arne Niemann, Phillippe Schmitter, „Neofunctionalism‟ in Thomas Diez, Antje Wiener (eds), European Integration Theories (2nd ed.) (Oxford: Oxford University Press, 2009), pp. 45-66, p. 59 37
Geddes cited in Terri Givens, Adam Luedtke, „The Politics of European Union Immigration Policy:
Institutions, Salience and Harmonization‟, Policy Studies Journal, 32: 1 (2004), pp. 145-165, p. 151 38 Christina Boswell, European Migration Policies in Flux – Changing Patterns of Inclusion and Exclusion (Oxford: Blackwell, 2003), p. 110 91 Commission has a Janus-faced role in the field of border controls. On the one hand, it argues in favour of further harmonisation which contributes to the decreased importance of borders inside the EU. On the other hand, it accepts and promotes the argument that illegal movement happens primarily at the borders, which makes it to push towards strengthening the external borders of the Union. This leads to the erection of a new border at the outer edges of the EU. In the next section I present a detailed account of how the Commission discourse on border controls has articulated the assumptions that have guided the efforts under Schengen as well as its position on further harmonisation in this policy field. These are also the main articulations that configure borders. Following the distinction between EU/non-EU nationals, the presentation is also divided into interpreting documents dealing with EU citizens and documents dealing with non-EU nationals.
3.3. Decreased Importance of Intra-Community Borders and the Construction of the External Union Border through Commission Discourse on Border Controls The area of border controls is a unique one in comparison to the rest of the policy areas examined in this thesis because it is the only one that contains references to the EU‟s external border that construct it openly but maybe even more importantly it does so unapologetically. On the contrary, as I will show below, in this policy area, perhaps more than in any other one included in this thesis, the Commission discourse provides rational argumentation for the need of an external EU border. Therefore, in this chapter I examine the decreased salience of internal borders and the construction of the EU‟s external border in one section. In the field of border controls, both of these tendencies are easily noticeable from the Commission discourse. Therefore, in tune with the differentiation made in Chapter Two, I classify them as first reading.
3.3.1. De-bordering tendencies In this section I focus on examining in detail how the discourse of the European Commission has promoted the decreased salience of borders between the member states. In 92 doing this I build upon the above-discussed issues. I present the measures articulated in Commission discourse that are aimed at achieving in practice the establishment of the areas without internal frontiers and of freedom, security and justice. These are classified along the lines of the rights of EU citizens to movement and residence within the territory of another member state; the current regime for free movement of TNCs and the establishment of European identity. Also I show the grounds on which the Commission has advocated these policies. The rationale presented in its documents concurs with the arguments of Huysmans and Geddes that the Commission has promoted harmonisation as a way of achieving the goal of free movement of people in the EC/EU.
As I said above, one of the important reasons for the successful increase of cooperation in the field of border controls has been the functional spillover to this policy from the single market. The Commission discourse strongly promotes such thinking. This is articulated through linking the achievement in practice of the goals of the SEA with the abolition of intra-Community border controls. The rationale advanced in Commission documents has been that without lifting intra-Community border controls, the goals of the SEA cannot be achieved. For example, the Commission‟s stance has been that the achievement of the goal of establishing the single market requires all checks and formalities at internal Community borders to be abolished because: “the continued existence of just one of them would undermine the political objective laid down” 39 in the SEA. Thus, for the Commission: “One of the essential aspects of any internal market is the right of any person lawfully in that market to move freely to any point therein in order to obtain goods and receive services there. In other words, an internal market … cannot function properly if the movement of persons within it is hampered. It will be unable to offer all the economic benefits that can be expected of the integration of national markets … if some people are prevented from, or have difficulty in, moving in that market …But the economic disadvantages are just as tangible when the obstacles to movement within the internal market stem from legal disparities which lead to the introduction of procedures and controls
39 European Commission, Abolition of Border Controls, SEC (92) 877 final, 08.05.1992, p. 8
93 which in turn prevent or impede the movement of persons.” 40 The Commission interprets this concept as a Community-wide market that operates under conditions equivalent to those of a national market.41 Thus, the full benefits expected from the single market can only be achieved if everyone on the territory of the Union can move freely within the whole of it. The fulfilment of this requirement is only possible, however, if certain measures are undertaken in the area of border controls. Importantly, according to the Commission, the way to guarantee this is very specific. Allowing the single market to function along the provisions of national markets is: “an objective that goes beyond the mere easing of frontier controls”; it is a goal that necessitates internal frontier controls to be abolished. 42 This articulation is crucial because it promotes a radical change in the way the movement of production factors between the member states is regulated. It argues in favour of complete eradication of national border controls, which is a position that dents deeply into state sovereignty.
Thus, these Commission articulations clearly promote the adoption of ideas that, if accepted, will require a higher involvement and importance of the EU-level institutions.
Hence, such articulations increase the relative powers of the supranational institutions. As a result, this position was bound to encounter resistance from the member states. This resistance is not completely overcome even at the time of writing because as I said above, some member states have opted-out of certain Schengen provisions on border controls.
Nevertheless, as the discussion below shows, the Commission has over the years managed to secure acceptance and implementation of some of its radical interpretations.
Another way in which the European Commission has advocated the decreased salience of internal borders for movement of persons in recent years, is on the grounds of the increased importance EU citizens attach to issues related to it and their understanding that action undertaken at EU level provides the appropriate way to respond. According to Commissioner Franco Frattini: “… we have expectations from our very own EU citizens to 40 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, p. 4 (emphasis in the original) 41 European Commission, Abolition of Border Controls, SEC (92) 877 final, 08.05.1992, p. 8 42 European Commission, Communication on the Abolition of Controls of Persons at Intra-Community Borders, COM (88) 640 final, 07.12.1988, p. 5 94 fulfil. “Eurobarometers” and other polls continue to indicate that if there is one policy area in which EU citizens … are in favour of a common, an EU, approach, than it is that of combating organized crime and terrorism … It is therefore … our citizens expectation that the prevention and the fight against such cross-border organized crime can no longer be tackled merely at the national level, but instead can only be addressed effectively with a cross-border, common EU approach: indeed this is an area in which Europe not only can but should make the difference!”43 Importantly, this articulation also promotes explicitly action at supranational level, which is the level where the Commission has greatest leverage. The increased importance of border controls-related issues in recent years is further reflected in the following data: 17 per cent of all legislative proposals of the Commission are in the area of freedom, security and justice 44 and according to Commission Vice-President Frattini: “Almost one in five of all major Commission initiatives concern Justice, Freedom and Security.” 45 As such, the main themes in the rationales for decreasing the importance of borders between EU member states boil down to economic reasons and popular requirements. By themselves these are not unique for this policy area alone because similar reasons are used to justify action towards diminishing the significance of borders in other policy areas, as the analysis in the other empirical chapters of this thesis shows. What is distinctive about this particular policy area, however, is the specific way in which the de-bordering trend is articulated in the discourse of the European Commission. In contrast to the social policy, where the decreased importance of internal EU borders is attained primarily through the construction of a common European identity, in the area of border controls the de-bordering tendencies in the Commission discourse are articulated predominantly through formulation 43 Franco Frattini, Speech at the Inauguration of Mr Ratzel as Director of Europol, SPEECH/05/297, 24.05.2005, p. 2 (emphasis in the original).
For other documents containing similar ideas see for example:
Franco Frattini, Inauguration Speech of the Frontex Agency, SPEECH/05/401, 30.06.2005, p. 2; Franco Frattini, Declaration on Terrorism, SPEECH/05/487, 07.09.2005, p. 2; European Commission, Commission Presents Comprehensive Counter-Terrorism Package, IP/05/1166, 21.09.2005, p. 2; Franco Frattini, Responses to the Threat of Terrorism and Effects on Communities, SPEECH/05/718, 24.11.2005, p. 2 44 European Commission, From Tampere to Tampere: Commission Responds to EU Citizen‟s Demands to Build up Europe as an Area of Freedom, Security and Justice, IP/06/848, 28.06.2006, p. 1 45 European Commission, The Hague Programme – Scoreboard Shows for 2006 Both Good Progress and Unacceptable Delays in Area of Freedom, Security and Justice, and Underpins the Need to End EU-Pillar Structure in This Area, IP/07/1005, 03.07.2007, p. 1 95 of measures removing the existing obstacles to movement (i.e. the need to attain visa or the necessity to pass through customs and police formalities at the borders of a member state).
As such, they facilitate movement on the territory of the EU by dismantling previously existing physical borders between the member states.
The Commission understanding of physical borders can be derived from the following quotation: “If the Community is to become a genuine internal market and if this market is to operate under the same conditions as a national market, physical frontiers must be abolished. This means the abolition of all controls, formalities, procedures, checks, examinations, inspections, etc. … at internal frontiers, just as there are no border controls
between regions in national markets.”46 The Commission advocates that this will dismantle:
“… all obstacles to the operation of the common market arising from the existence of internal frontiers [which] must be eliminated by 31 December 1992 at the latest”.47 The articulations of the Commission on the abolition of physical borders contribute to the further undermining of previously existing divisions. They acknowledge that the achievement of a genuine area allowing for the free movement of people will not be possible if within it member states continue to make a differentiation in the nationality of the person exercising their right of free movement within the EC/EU: “The complete abolition of physical frontiers for individuals exercising their right of freedom of movement necessarily implies the complete abolition of controls on all individuals who cross internal borders, irrespective of their nationality.” 48 This formulation is not only an expression of the Commission‟s understanding of how the political objective of creating the internal market is to be achieved but importantly, it is also one that implies that the formal distinction between member states‟ nationals and TCNs when they exercise their right of free movement within the Schengen territory should be made redundant. In turn this undermines the national borders of the participating member states because they lose their previously existing ultimate control over the entries to and exits from their territories if the persons crossing the border come from a Schengen-participating member state.
46 European Commission, Abolition of Border Controls, SEC (92) 877 final, 08.05.1992, p. 9 47 Ibid.
48 Ibid., p. 12 96 Importantly, this also concurs with the Commission understanding presented above of how the internal market should function in terms of free movement of people.