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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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An analysis of the documents of the European Commission shows that it has achieved further progress towards implementing its understanding. This is evident in the position of the Commission that free movement of persons must not be confined only to workers from another member state, but has to encompass non-economically active nationals of the Community as well as citizens of non-member countries. 49 Over the years, the Commission has made some important proposals that have contributed towards the implementation in practice of the basic principles advanced by it, thus contributing towards the dismantlement of physical borders between the member states and the de-bordering of the EU territory. These include a variety of proposals on concrete measures that concern the freedom to travel within the Schengen territory of TCNs and the rights of residence anywhere in the EU of its citizens.

A good illustration of how this is done in respect to EU nationals can be provided with three Commission documents on the issue.50 As I said above, in the years following the SEA the set of rights conferred to nationals of the member states as well as the scope of people that enjoy them expanded. More specifically: “These extended rights are contained in three Directives adopted on 28 June 1990 on the right of residence of students, retired persons and other non-economically-active persons.”51 Importantly, the Commission Report on the Implementation of the Directives on the Right of Residence deals with the transposition process and measures of the three Directives of all the member states, including those that have negotiated opt-outs (UK, Ireland and Denmark) from their participation in certain Schengen measures. As such, this discourse contributes to the decreased salience of the national borders of all the member states and constructs a borderIbid., p. 10 50 I do not provide here an analysis of a higher number of Commission documents because the right to residence, which is articulated together with the right to movement within the territory of the EU is intrinsically related to the issue of free movement of people. As such, I will provide a detailed analysis of the configuration of borders of Commission documents on these matters in the next chapter.

51 European Commission, Report on the Implementation of Directives 90/364, 90/365, 93/96 (Right of Residence), COM (1999) 127 final, 17.03.1999, p. 2 97 free area encompassing the whole territory of the EU. As I show later, this is not the case with respect to the abolition of internal Union borders, if they are crossed by TCNs.

Despite this de-bordering discourse of the Commission, according to the Report of the High-Level Panel on the Free Movement of Persons, there are still: “persistent obstacles to the right to move and reside freely in the territory of the Member States,” which are of the following main types: “continued existence of checks at internal frontiers, shortcomings in administrative practices and legislative deficiencies.” 52 Furthermore, according to the Commission the: “step-by-step extension has meant … that beneficiaries have been compartmentalized in a way that is no longer in keeping with modern forms of mobility or with the establishment of citizenship of the Union.”53 In order to address these obstacles and thus reduce further the existing border controls over EU citizens within its territory, the Commission has sought to develop: “a single set of rules on free movement”.54 To that end in 2001 it adopted a proposal that aimed to review and facilitate the exercise of the right of free movement for EU nationals and their family members. The Council and the Parliament subsequently adopted this proposal in April 2004.55 The clauses of the proposal contribute to the de-bordering in the Union in two main ways. Firstly, these clearly show the Commission‟s aim to continue to promote free movement for these categories of people that were not entitled to it under the initial provisions of the Treaty of Rome: “The development of mobility of students, researchers, those undertaking training, volunteers, teachers and trainers is recognized as a political priority of the European Union.” 56 Secondly, it introduces a number of important innovations with regard to previously existing law. One of them is the codification of a complex corpus of legislation and extensive case law of the ECJ into a single, simple legal instrument. This makes the right to free movement more transparent and easier to apply.

52 The quotation and the typology are from European Commission, Communication on the Follow-up to the Recommendations of the High-Level Panel on the Free Movement of Persons, COM (1998) 403 final, 01.07.1998, p. 2 53 Ibid., pp. 8-9 54 Ibid., p. 2 55 http://ec.europa.eu/prelex/detail_dossier_real.cfm?CL=en&DosId=165821#364809, accessed on 21.04.2009 56 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, Preamble, point 4 98 The other modifications are the creation of a single legal regime for free movement and residence for all categories of Union citizens, the improvement and facilitation of the exercise of the right of residence through the extension of family reunification rights, the introduction of autonomous right of residence for family members, or the reduction of administrative formalities. 57 All in all, these provisions will contribute to further reduction of previously existing formalities at the borders, hence leading to less border controls.

Thus, these articulations of the European Commission clearly contribute to the decreased salience of borders inside the territory of the Union. Furthermore, importantly, they show that the Commission has consistently aimed to promote and implement its interpretation of the areas without internal frontiers and freedom, security and justice. It does that by extending the provisions for free movement to cover an ever-wider number of categories of people.

This trend is continued in the second main category of Commission documents that promote decreasing importance of internal borders. These are the undertakings in the field of establishing the right of TCNs to travel freely inside the EU through abolishing controls at the internal borders. This is directly related to the Commission understanding, presented above, that if the political objectives of the internal market are to be achieved, it will be necessary to go beyond mere easing of border controls and instead create an area where people can circulate freely irrespective of their nationality. This requires actions at EC/EU level that allow physical controls of TCNs previously exercised at national borders of member states to be disposed of. There are two major fields in which the Commission has undertaken actions that contribute to this aim – the establishment of a EU regime for entry into its territory and the undertaking of measures that will ensure the security of this area.

These have led to the creation of common visa policy, the establishment of EU-level information systems (Visa Information System – VIS and Schengen Information System – SIS) and in more recent years a more pronounced trend towards common management of the external Union borders.

57 As summarised in European Commission, Enhancement of Free Movement and Residence Rights for EU Citizens: a New Milestone in EU Integration Process, IP/06/554, 02.05.2006 and European Commission, The Directive on the Right to Move and Reside Freely in the Union/ Seven Million European Citizens Already Live in Another Member State, MEMO/06/179, 02.05.2006 99 A brief outline of the Commission discourse in each of the above will show that the aims pursued straightforwardly abolish border controls between Schengen-participating member states. Prior to the entry into force of the Schengen Agreement in 1995, the right of entry and residence of TCNs even for a short period was: “governed by Member States‟ domestic laws, which are neither harmonized nor coordinated.” 58 This is a situation that clearly clashes with the principles of the internal market upheld by the Commission.

Therefore, it adopted a Directive proposal that stipulates that: “Member States shall grant third-country nationals … the right to travel in the territories of the other Member States …”.59 In order to enable the implementation of this right, in the same proposal the Commission advocated the acceptance of the principle of equivalence between residence permits issued by member states and visas and the principle of mutual recognition of visas.

The latter, however, can only be applied if there are “harmonized criteria applicable to the issue of visas, that is to say to visas valid for the whole Community.” 60 Thus, according to the Commission: “the objective of Article 100c(1) of the EC Treaty [is the] complete harmonization of visa policies.” 61 The Commission, however, eventually withdrew this proposal. 62 Despite that, several Commission documents envisaged different measures contributing to the achievement of its aim. There has been a proposal for a regulation that sets out the uniform format for the visas issued by the member states,63 a Communication that listed the TCNs who need a visa when crossing the external borders of the Union and those that are exempted from this requirement,64 a proposal for a Directive establishing a 58 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. 5 59 Article 1, point 1 in Ibid., p. 21 60 The quotation and the principles are from Ibid., p. 6 61 Ibid., p. 18 62 European Commission, Withdrawal of Commission Proposals, COM (2001) 763 final/2, 21.12.2001, p. 30 63 European Commission, Proposal for a Council Regulation Laying Down a Uniform Format for Visas, COM (94) 287 final, 13.07.1994; European Commission, Proposal for a Regulation of the European Parliament and of the Council Amending the Common Consular Instructions on Visas for Diplomatic Missions and Consular Posts in Relation to the Introduction of Biometrics Including Provisions on the Organization of the Reception and Processing of Visa Applications, COM (2006) 269 final, 31.05.2006 64 European Commission, „Communication in Application of Council Regulation (EC) No 539/2001 of 15 March 2001 Listing the Third Countries Whose Nationals Must be in Possession of Visas when Crossing the External Borders and Those whose Nationals are Exempted from that Requirement‟, Official Journal of 100 general consistency of the provisions regulating the free movement of TCNs within the EU and guaranteeing the same interpretation of the requirements for the various categories of TCNs across the member states,65 and a proposal establishing a Community Code on visas.66 The first of these proposals was adopted in April 1995, 67 the Commission in March 2006 withdrew the third one,68 the second one has been accepted but the list of countries has changed several times since the initial proposal was made and the last one is still pending final decision at the time of writing. 69 Despite this mixed overall success on the acceptance of Commission proposals on these matters, in general the Commission has managed to attain an acceptance of the main principles it has supported. Nowadays, as a result of various provisions, even TCNs can travel within the territory of Schengenparticipating countries with much fewer formalities. This is a sign that over the years the Commission as the representative of the common interests has managed to secure agreement on practical issues, such as the common lists of TCNs that need visas when entering the territory of Schengen. 70 These make some of the aims of SEA and Tampere a reality, thus establishing a common space between the territories in question.

Another strand of measures that imply a similar configuration of borders are those adopted by the Commission with the objective of ensuring the abolition of intraCommunity border controls at a high level of security. The most prominent amongst them European Communities, C 363/21, 19.12.2001, pp. 21-30. This List has subsequently been amended but has retained the same principles.

65 European Commission, Proposal for a Council Directive Relating to the Conditions in which ThirdCountry Nationals Shall Have the Freedom to Travel in the Territory of the Member States for Periods not Exceeding Three Months, Introducing a Specific Travel Authorization and Determining the Conditions of Entry and Movement for Periods not Exceeding Six Months, COM (2001) 388 final, 10.07.2001 66 European Commission, Proposal for a Regulation of the European Parliament and of the Council Establishing a Community Code on Visas, COM (2006) 403 final, 19.07.2006 67 See http://ec.europa.eu/prelex/detail_dossier_real.cfm?CL=en&DosId=101280, accessed on 21.04.2009 68 European Commission, Outcome of the Screening of Legislative Proposals Pending before the Legislator, COM (2005) 462 final, 27.09.2005, p. 9. The Communication does not make the reason for the withdrawal of this proposal explicit, thus it is not possible to establish what exactly the grounds on which it was deemed inconsistent with the Lisbon objectives are.

69 See http://ec.europa.eu/prelex/detail_dossier_real.cfm?CL=en&DosId=194509, accessed on 21.04.2009 70 For more details on the initial stage of developing Commission proposals on common visas see 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, esp. p. 751 101 have been the proposals in relation to the VIS and SIS I and II, EURODAC 71 as well as the gradual establishment of common management of the external borders of the Union through FRONTEX72 or the joint maritime patrols in the Mediterranean Sea. In Commission discourse the various information exchange systems are articulated as an expression of compensatory measures necessary for the improvement of cooperation and coordination between the authorities of the member states in order to guarantee the internal security in the area of free movement. 73 VIS, for example: “shall improve the administration of the common visa policy, the consular cooperation and the consultation between central consular authorities …”74, while the External Agency for the Management

of Operational Cooperation at the External Borders of the Member States (FRONTEX):

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