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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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“will coordinate/ assist the competent services of Member States responsible for implementing Schengen acquis on control of persons at the external borders …”75 Importantly, at least for some of the above measures (such as FRONTEX), the initiative for their establishment was not with the Commission but with the Council.

However, as a study by Neal shows, in the case of FRONTEX the Commission has not only accepted and reiterated the aims that guided its establishment but also had important input during the process of negotiating the exact details of the envisaged body. 76 Nevertheless, as the research on FRONTEX shows, in the early stages of negotiating the 71 In European Commission, EURODAC Guarantees Effective Management of the Common Asylum System, MEMO/05/214, 21.06.2005, p.1, EURODAC is defined as the EU-wide fingerprint database for the comparison of the fingerprints of asylum seekers and illegal immigrants.

72 According to its web site, FRONTEX strengthens the freedom and the security of the citizens of the EU by complementing the national border management systems of the member states and actively promotes the cooperation among border related law enforcement bodies responsible for the internal security at EU level.

See http://www.frontex.europa.eu/more_about_frontex/, accessed on 21.04.2009 73 Some studies have focused on how different compensatory measures are framed as security issues, while others have argued that any such measures have limited ability to provide the sought-after complete security within the frontier-free area. See respectively Jef Huysmans, „European Identity and Migration Policies.

Socio-Economic and Security Questions in a Process of Europeanisation‟, paper prepared for the Annual BISA Conference held at the University of Durham, 16-18 December 1996 and Didier Bigo, „Frontiers and Security in the European Union: the Illusion of Migration Control‟ in Malcolm Anderson, Eberhard Bort (eds), The Frontiers of Europe (London: Pinter, 1998), pp. 148-164 74 European Commission, Proposal for a Regulation of the European Parliament and of the Council concerning the Visa Information System (VIS) and the Exchange of Information between Member States on Short Stay-Visas, COM (2004) 835 final, 28.12.2004, p. 1 75 European Commission, Basic Facts about the External Borders Agency, MEMO/05/230, p.1 76 Andrew Neal, „Securitization and Risk at the EU Border: the Origins of FRONTEX‟, Journal of Common Market Studies, 47: 2 (2009), pp. 333-356, esp. pp. 339-341 102 cooperation at the EU‟s external borders, the Commission was supporting operationally independent European Border Guard. Such a position is in tune with Neo-functionalists‟ expectations. This, however, was not the preference of the member states.77 In that respect, the establishment of FRONTEX is a good example of the merit of approaching Commission discourse as a result of complex interactions during which decisions are negotiated discussed in Chapter Two. Once a particular settlement is reached, it has wider repercussions, which in this case are related to the configuration of borders in Commission discourse. Therefore, I regard the Commission as being directly involved in (although maybe not always driving) the articulations of measures, which I interpret as contributing towards the creation of the supranational administration of the area of free movement. 78 The de-bordering trend in each of them as well as in their combination is in allowing to put in place an order that makes it possible to lift controls at national frontiers, thus establishing a unified space where people can move without having to face any formalities, delays or checks. This emergence of a supranational administration functions along two main lines.

Firstly, the databases (SIS, VIS, EURODAC) establish the conditions for exchange of information between the relevant authorities of the member states. Importantly, this still leaves the operational responsibilities primarily with the individual national authorities and the Commission continues to have limited involvement. Nevertheless, Commission discourse shows that it has promoted the establishment of these systems. According to former Commission Vice-President Frattini: “The Commission‟s role is to propose EU legislation corresponding to the needs of our common area of security and justice. Our aim is to give the relevant national services suitable tools for efficiently pursuing and 77 See for example, Johannes Pollak, Peter Slominski, „Experimentalist but not Accountable Governance? The Role of Frontex in Managing the EU‟s External Borders‟, West European Politics, 32: 5 (2009), pp. 904-924, pp. 908-909; Julien Jeandesboz, „Reinforcing the Surveillance of EU Borders. The Future Development of FRONTEX and EUROSUR‟, Challenge: Liberty and Security, Research Paper no. 11, August (2008), p. 12;

Helene Jorry, „Construction of a European Institutional Model for Managing Operational Cooperation at the EU‟s External Borders: is the FRONTEX a Decisive Step Forward?‟, Challenge: Liberty and Security, Research Paper no. 6, March (2007), p. 2.

78 Systems, such as VIS, SIS, etc. are important because as Huysmans has argued, the technologies of border controls are not simply instruments for controlling movement but also shape the particular modalities for conducting free movement in Jef Huysmans, „A Foucaldian View on Spill-over: Freedom and Security in the EU‟, Journal of International Relations and Development, 7: 3 (2004), pp. 294-318. A later version is

available in Jef Huysmans, The Politics of Insecurity – Fear Migration and Asylum in the EU (London:

Routledge, 2006), ch. 6 103 prosecuting … to set up frameworks for exchange of information. This is an area where action at the European level can bring clear benefits.” 79 Also a memorandum describes the development of SIS II as: “indispensable so that the new Member States can connect to the system and the Schengen area without internal border control can be extended …”80 Such articulations can be read as the Commission utilising the means at its disposal for harmonisation through promoting measures contributing to achieving its declared aim of abolishing internal border controls.

Secondly, measures such as the joint maritime patrols and FRONTEX provide opportunities for colleagues from different member states to work side-by-side. One outcome of such a practice can be the unification of working practices and the exchange of professional information and procedures. All of these in medium to long-term can contribute to the emergence of a common European space as a result of the decreasing internal differences within the EU. Also, importantly, these practices are different from the ways in which Commission discourse envisages the achievement of the diminished importance of national borders in other policy areas. For example, as I will show in Chapter Five, in social policy, the main way this is promoted is through establishing benchmarks and exchange of best practice. Arguably, the practices in the field of border controls can deliver results faster because they require a more direct and intense interaction between the professionals involved.

There is one significant difference in relation to the configuration of borders in these Commission documents and those decreasing the significance of borders for EU citizens. While, as I pointed out above, the provisions for the former are applicable to all member states and in that respect they result in affecting the whole territory of the EU, the latter do not apply in the same way on the whole area of the Union. The Commission provisions on border control-related documents for TCNs usually contain a clause devoted to the applicability to the UK, Ireland and Denmark. 81 This is a consequence of the 79 Franco Frattini, The Fight against Terrorism, SPEECH/05/474, 02.09.2005, p. 5 80 European Commission, Schengen: from SIS to SIS II, MEMO/05/188, p. 1 81 See for example European Commission, Proposal for a Regulation of the European Parliament and of the Council Concerning the Visa Information System (VIS) and the Exchange of Information between Member States on Short-Stay-Visas, COM (2004) 835 final, 28.12.2004, p. 3; European Commission, Proposal for a Council Directive Relating to the Conditions in which Third-Country Nationals Shall Have the Freedom to 104 constitution of cooperation in this policy area. As such, these in practice constitute an area of this policy, where internal borders have not been dismantled completely and therefore, there still are physical obstacles to the free circulation of people as a result of the persistent existence of border controls. Namely, the opt-outs allow the principle of non-discrimination on grounds of nationality for all categories of people, upheld by the Commission, to not be applied in its entirety, thus recreating previously existing divisions but changing the way they work for novel, different types of people. However, in distinction to other instances of the construction of borders by Commission discourse when the Commission was not the one that initiated a particular bordering articulation such as FRONTEX, on this issue the Commission has not promoted this situation. Thus, I do not discuss it in greater detail in the section devoted to the reconstruction of internal borders in this policy area by the Commission discourse. Despite the differences in the borders constructed by the Commission discourse on border controls towards EU citizens and TCNs, they share one important commonality – they contribute to the decreased salience of borders between the member states participating in Schengen and construct a common European space.

Besides de-bordering through the abolition of physical barriers, which is constructed by the above articulations, the undermining of internal EU frontiers is also achieved by articulations that construct European identity within the area without internal frontiers/ of freedom, security and justice. Although not as strong a line in the discourse in this policy field as in some others (social policy), there are still articulations that can be interpreted as contributing towards the emergence of a common identity. There are two major themes in the discourse that have this effect – the EU citizenship as promoting the feeling of belonging into the Union and the necessity to develop mutual trust and enhance cooperation between the member states as a prerequisite for the successful achievement of the aims of the areas of free movement. These can be illustrated with the following examples, respectively: “Guaranteed permanent residence for Union citizens who have 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, p. 8; 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, p. 13 105 chosen to settle long-term in another Member State strengthens the feeling of holding a common citizenship …”82; “… these rights are becoming an integral part of the legal heritage of every citizen of the European Union …”83 and “This implies reinforcing the existing mutual trust with Member States … For the fight against terrorism - and also organized crime – to be effective, the exchange of information between law enforcement authorities … between different Member States is vital.”84 The flip side of all the articulations examined so far, however, is that they simultaneously contribute to the construction of new external borders at the outer edges of the Union.

3.3.2. The construction of EU‟s external borders I said that Schengen is also directly associated with the so-called “fortress Europe”.

As Huysmans‟ and den Boer‟s studies have argued, this fortress has emerged because EU institutions have continuously maintained that the aims of the SEA and Tampere can only be achieved if they are accompanied by compensatory measures at the external borders of the EU.

The Commission has been no exception to that trend. In fact, this is a recurring articulation in its documents. I will illustrate the reasoning on which such thinking is based with the following two examples. According to a memorandum from 2005: “The creation of an area where people can circulate freely should never represent a loss in terms of

security for the Member States”.85 Another document provides more details on this logic:

“Free movement of persons within the Schengen area … requires action to counter security deficits caused by the abolition of border controls as perpetrators of criminal acts are 82 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 14 (emphasis added) 83 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 (emphasis added) 84 Franco Frattini, The Hague Programme: Our Future Investment in Democratic Stability and Democratic Security, SPEECH/05/377, 23.06.2005, p. 3 85 European Commission, SIS II: Commission Presents a Set of Proposals for Enlarging the Schengen Area to the New Member States, IP/05/651, 1.06.2005, p. 1 106 equally able to move as freely as law abiding citizens. Impunity caused by obstacles to cooperation must be removed.”86 Because of this perception of a loss of security, it is argued that the actual

achievement of the aim of free movement of people will not be possible without:

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