«A thesis submitted to the Department of Political Science and International Studies of the University of Birmingham for the degree of Doctor of ...»
“Solidarity, mutual trust and shared responsibility between Member States [which] is a key requirement in an area without internal borders …”87 As a result of such thinking, the Commission has come to promote the idea that the efforts towards the establishment of the area without internal frontiers and subsequently of the area of freedom, security and justice should be accompanied directly by a: “flanking measure to the free movement of persons with respect to external border controls”. 88 In the Commission‟s view such measures should: “provide the legislative base for establishing the agreed rules for crossing the external borders in which all Member States can have confidence.” 89 Thus, the construction of the external EU border is grounded on the security perception that there are dangers to the common European space, which can be addressed if the necessary steps are taken at the external edges of the Union. 90 Although there has not been substantial change in the way these dangers are formulated, there have been slight alterations in the accents. While 15-20 years ago the aim was sometimes formulated more generally, as: “to enable threats to public policy and public security to be eliminated in the Member States”,91 currently, the most prominent threats, according to the documents of the Commission, are terrorism, organised crime and illegal immigration.
Such articulations contribute to the construction of the external border of the Union because they promote the understanding that as a result of the commonality of the problems, a common response is necessary. Commission documents tap into this to promote the idea that: “The creation of an area of freedom, security and justice requires all Member States to effectively apply common rules. The common security system is only as strong as its weakest point.”96 This understanding promotes the construction of the external EU border in two important ways – through constructing a common identity and through providing a rationale for common action at the Union level. The construction of common identity comes about as a side effect of internalising the understanding of mutual dependence that leads to the development of a feeling of solidarity, a “we-feeling”, which in turn constructs a common European identity. The latter, establishes the ground on which the perception that: “the creation of an area in which persons may move freely should be accompanied by measures with respect to external border controls, asylum and 92 European Commission, Building an Area of Freedom, Security and Justice, MEMO/07/271, 03.07.2007, p.
1 (emphasis added). For other Commission documents referring to these threats see for example European Commission, Strengthening the European Union as an Area of Freedom, Security and Justice, available at http://ec.europa.eu/justice_home/fsj/intro/fsj_intro_en.htm, p.2, accessed on 08.07.2008; European Commission, Towards an Area of Freedom, Security and Justice, COM (1998) 459 final, 14.07, 1998, p. 7;
European Commission, Proposal for a Framework Decision on Exchange of Information under the Principle of Availability, MEMO/05/367, 12.10.2005, p. 1; European Commission, A Strategy on the External Dimension of the Area of Freedom, Security and Justice, COM (2005) 491 final, 12.10.2005, pp. 4-5 93 European Commission, Implementing the Hague Programme: the Way Forward, MEMO/06/254, 28.06.2006, p. 4 94 European Commission, On Policy Priorities in the Fight against Illegal Immigration of Third Country Nationals, COM (2006) 402 final, 19.07.2006, p. 2 95 European Commission, On a Common Policy on Illegal Immigration, COM (2001) 672 final, 15.11.2001, p. 25 96 Ibid., p. 10 108 immigration”97 is advanced. The adoption and implementation of measures on these matters has led to the construction of a new regime that is enacted through putting in place physical obstacles to the free crossing of the external borders. The discourse of the Commission on this matter has two important features that are significant in terms of the thrust of this research – the first is related to the way the external border operates and the second to the way it is constructed within the Commission discourse.
The construction of the EU‟s external border in the field of border controls is closely related to the establishment of Union citizenship. This citizenship defines a new area, the EU territory, as a place where certain rights, including freedom of movement without border controls can be exercised. The limit of applicability of these rights is where the external border lies. As explained above, every EU citizen has the right to enter the territory of the Union. Non-EU citizens, however, do not have the same right, even when possessing a visa.98 It is this distinction in rights as well as the concrete measures undertaken for regulating the regime for entry into the EU territory that has constructed the external border of the Union.
As I pointed out above, the Commission has had limited ability to exercise independently any significant influence due to the particular way in which the cooperation in this issue area has evolved and to the powers it has commanded. However, I also said that the Commission as one of the supranational institutions of the Union has consistently promoted, within its powers, further harmonisation and as extended as possible cooperation. For example, in 1992 in a Communication subsequently examined by the Council and the European Parliament, 99 the Commission points out the problems that the intergovernmental framework creates and puts forward its position on the issue of abolition of border controls for individuals: “The work undertaken in the intergovernmental framework creates a problem of coherence with that carried out in the Community framework … For the Commission this ambiguity could not bring into question the scope 97 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. 36 98 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. 17 99 From http://ec.europa.eu/prelex/detail_dossier_real.cfm?CL=en&DosId=103668#113617, accessed on 24.04.2009 109 of Article 8 A which imposes itself on the text of an intergovernmental convention … Article 8a provides for the effective abolition by 31 December 1992 of all controls applied at internal frontiers … the Commission as guardian of the Treaty, will have to ensure that this obligation is fulfilled and hereby declares that it is resolutely determined to use all legal and political means at its disposal to ensure that the work program stemming from Article 8a is carried out in full.” 100 In a similar way more recently, the Commission has referred to the length and difficultness of the decision-making process in JHA as an impediment to successful action101 and has argued in favour of the abolition of the pillar structure and the extension of the Community method to the whole JHA under the Constitutional Treaty. 102 Through their references to the complications posed by intergovernmental cooperation, these clearly indicate a position advocating further integration and determination to utilise all the competences at its disposal to achieve this. However, one of the outcomes of such undertakings is the emergence of external EU borders. For example, the documents of the European Commission promote this thinking: “A frontier-free area demands a common policy on freedom to travel in the territory of the Member States … There is accordingly a need for a Community provision relating to persons who plan on moving within the frontier-free area …”103 Consequently, the control exercised over the crossing into the territory of the member states constitutes the establishment of the external border of the Union. Besides EU citizenship, this is achieved through measures in a number of other fields – visa, asylum application or border management – “… the creation of an area in which persons may move freely should be accompanied by measures with respect to external border controls, asylum and immigration.”104 100 European Commission, Abolition of Border Controls, SEC (92) 877 final, 08.05.1992, p. 6 101 Franco Frattini, The Fight against Terrorism, SPEECH/05/474, 02.09.2005, p. 5 102 European Commission, Area of Freedom, Security and Justice: Assessment of the Tampere Programme and Future Orientations, COM (2004) 401 final, 02.06.2004, p. 3 and p. 5. For a similar argument see also Antonion Vitorino, Migration as a Resource to be Managed for the Mutual Benefit of Sending and Receiving Countries, SPEECH/03/417, 18.09.2003, esp.
p. 5 103 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, p. 5 104 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. 36 110 The undertakings in these different fields share the aim of establishing the concrete conditions for entry into the territory of the Schengen-participating states and hence constitute the border controls exercised at the newly established external territorial borders of the EU. For example, according to the Commission, the common visa policy has to establish a body of common legislation. Among other things it should assure the harmonised application at operational level of practices and procedures to be followed by the diplomatic missions and consular posts of the member states when processing visa applications.105 One of the overarching goals of the efforts in the field of common asylum policy is to establish standards applicable throughout the Union: “The purpose of the proposal for a directive on minimum standards on procedures in Member States for granting and withdrawing refugee status is to establish in the short term a minimum level of harmonisation of the rules applicable in the matter in the Community … At a second stage, the definition of a common procedure implies restricting the possibilities for options in the areas where the first stage allows a degree of flexibility or the possibility of derogating from certain provisions.” 106 The articulations of the Commission show that common legislation and procedures in both policy areas have to address very similar problems, termed respectively “visa shopping”107 and “secondary movement”108 – the opportunity for TCNs to exploit any existing differences in national regimes for entry into the territory of a member state and from there through using the frontier-free area in the EU to move to the territory of other Union members whose national legislation would not have allowed them entry. This is well 105 Ibid., p. 38 106 European Commission, Communication to the Council and the European Parliament Towards a Common Asylum Procedure and a Uniform Status, Valid Throughout the Union, for Persons Granted Asylum, COM (2000) 755 final, 22.11.2000, p. 8 107 See for example 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, p. 2 and European Commission, Proposal for a Regulation of the European Parliament and of the Council Concerning the Visa Information System (VIS) and the Exchange of Data between Member States on Short-Stay Visas, COM (2004) 835 final, 28.12.2004, p. 1 108 See for example European Commission, Communication to the to the Council and the European Parliament Towards a Common Asylum Procedure and a Uniform Status, Valid Throughout the Union, for Persons Granted Asylum, COM (2000) 755 final, 22.11.2000, p. 7 111 exemplified with the following statement from the common visa policy: “Member States could not be expected to recognize visas granted by each other without a minimum harmonization. Otherwise the Member States would lay themselves open to the abusive practice of “visa shopping”.