«A thesis submitted to the Department of Political Science and International Studies of the University of Birmingham for the degree of Doctor of ...»
111 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, p 6.
For other documents advancing measures towards this aim see European Commission, Building an Area of Freedom, Security and Justice, MEMO/07/271, 03.07.2007, p. 6; European Commission, The Hague Programme Ten Priorities for the next Five Years, MEMO/05/153, 10.05.2005, p. 6; European Commission, “Common Visa Application Centres” and Introduction of Biometrics in Visa Information System (VIS) will Reinforce Internal Security and Facilitate Legitimate Travelling to EU, IP/06/717,.02.06.2006; European Commission, Opening of a “Common Visa Application Centre” in Moldova, MEMO/ 07/153, 25.04.2007, p.
2. Common application centers are a result of the pooling together in one building of the staff of diplomatic posts and consular missions of two or more member states in order to receive the visa applications.
112 European Commission, Opening of a “Common Visa Application Centre” in Moldova, MEMO/07/153, 25.04.2007; European Commission, The First EU “Common Application Centre” Opens in Moldova, IP/07/561, 25.04.2007 112 policy field, given the concrete measures articulated in the Commission documents, it can be concluded that the external border is constructed mainly through putting in place modified physical obstacles to the entry of TCNs into the territory of the Union. As such, overall, the nature of most of the measures in question does not represent a qualitatively new development but is rather a modification of tools employed by individual nation-states.
An important exception from this rule, however, is the very intensive exchange of information under the VIS, SIS and EURODAC databases between the relevant authorities of the member states. It has as one of its aims: “to facilitate checks at external border checkpoints and within the territory of the Member States”. 113 To that end: “A joint list of persons to whom the Member States shall refuse entry to their territories shall be drawn up on the basis of national notifications…” 114 Without a doubt such information exchange has become possible as a result of the technological advances in the last few decades. However, it can be quite safely guessed that the scale of the information transferred, in terms of the number of countries involved in the exercise as well as the amount of data loaded, is going to be at levels higher than the average rate for international exchange of information on security-related issues. Such density will not only be an indication for the decreased importance of intra-Community borders but will also contribute to the construction of the Union‟s external border in two main ways. Firstly, through marking the area beyond which such intensive co-operation does not occur. Secondly, through a clear dividing line between those individuals that do not need their details to be uploaded into the databases (EU citizens, TCN - members of the family of EU citizen, TCNs that do not need visa to enter the territory of the Union) and those that do. The category of TCNs (those that need visa to enter the EU) is also the one that most clearly feels the newly constructed EU external border as difficult to penetrate from the outside. This is the main reason why the 113 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 ShortStay Visas, COM (2004) 835 final, 28.12.2004, p. 7. For similar thinking see also European Commission, EU‟s Biometric Database Continues to Ensure Effective Management of the Common European Asylum System, IP/07/1347, 18.09.2007, p. 1; European Commission, Eurodac: a European Union-wide Electronic System for the Identification of Asylum-seekers, MEMO/06/334, 19.09.2006; European Commission, Schengen: from SIS to SIS II, MEMO/05/188, 01.06.2005 114 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, p. 27 113 overwhelming majority of existing studies on Schengen, as the Literature Review has shown, refer to the new regime as creating the “fortress Europe”.
As this discussion has shown, the major contribution by the Commission towards the construction of the EU‟s external border in the field of border controls has been twofold. On the one hand it has been promoting greater harmonisation of the existing practices: “The Commission considers that the various provisions in force on the movement of third-country nationals in the territory of the Member States need an overall approach to establish general consistency and guarantee that the requirements for the various categories of third country-nationals are interpreted in the same way.” 115 On the other hand, it has been supporting and facilitating more cooperation between the relevant authorities of the member states. One example of this is the Commission‟s proposal (adopted by the Council in October 2006)116 on the establishment of a mutual information procedure on national measures taken in the areas of asylum and immigration that can affect other member states.
According to Franco Frattini this mechanism: “will enhance trust among Member States and will facilitate, through mutual information, the adoption of coordinated approaches to solve questions of mutual interest.”117 Therefore, according to the Commission: “The purpose of this exchange of views is to facilitate the identification of problems of common interest …”118 The above clearly shows that in the field of border controls, the Commission often makes references to the EU‟s external borders. Although a side effect of the decreased salience of borders inside the Union is the construction of its external borders, in the field of border controls, the discourse of the Commission does that in a very explicit way. This sets it apart from the discourses in other policy fields. As I will show in the next chapters, in other policy areas the construction of external borders comes as a result of the 115 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. 4 116 See European Council, Decision on the Establishment of a Mutual Information Mechanism Concerning Member States‟ Measures in the Areas of Asylum and Immigration, 2006/688/EC, 05.10.2006 117 European Commission, Commission Proposes a Better Exchange of Information on National Migration and Asylum Policies in the Union, IP/05/1251, 12.10.2005, p.1 118 Ibid.
114 interrelation and inconsistency in the way issues in different policy areas are tackled (like in the ENP) or has to be deducted from the Commission discourse on the policy area in question (social policy). In the field of border controls, however, as the above discussion shows, the Commission very often explicitly makes references to the “external border/s” of the Union. In that respect, the construction of these borders is going to be contained in any attempt to recreate the discourse of the Commission in this field. Thus, I have classified it as belonging to the first reading, according to the methodological differentiation made in Chapter Two. This leaves only the analysis of the construction of internal borders in the EU by the Commission discourse on border controls for the second reading, which is presented in the next section.
3.4. The Construction of Internal Borders in the EU through Commission Discourse on Border Controls Despite these configurations of borders in the Commission discourse on border controls, an analysis of its documents reveals that the opposite trend that contributes to the reconstruction of internal borders in the EU is still present. Below I present a detailed account of how this takes place. As in the other policy areas examined in this thesis, internal borders are reconstructed through the existence of contradictions and silences in the Commission discourse. In this policy area, three things stand out in particular. Firstly, the examined silences and contradictions contribute to the construction of border controls for one specific group of people, TCNs and do not affect EU nationals. Secondly, the reconstruction of internal territorial borders in the EU through Commission discourse in this policy area is a result of the limitations for the Commission in the institutional structure of the EU rather than a product of its own pursuits. As I explained in section 3.2.1., the intergovernmental nature of cooperation on border controls lasted until mid-2000s during which time particular patterns of solving border controls issues were established. These established approaches have tended, on certain issues, to emphasise the role of member states, which is normal for intergovernmental cooperation. However, because of pathdependency they still determine the trajectory of cooperation on border controls. As 115 Lavenex argues: “Although the Treaty of Amsterdam has shifted asylum and immigration from the intergovernmental third pillar to the Community pillar … intensive transgovernmentalism still prevails … limiting the scope for defining a common European asylum system”.119 This has left the Commission with little space for manoeuvring and has meant that over the years, its discourse has had to reproduce the agreed upon solutions, and as such contribute, to the reconstruction of internal borders in the EU. Thirdly, following the differentiation of types of internal borders outlined in section 2.2.1., the internal border articulated in this policy field is along the old dividing lines demarcating national divisions between the member states of the EU.
3.4.1. Absences from the discourse: common visa policy is for short-stay visas only The first main way in which Commission discourse is involved in the reconstruction of internal borders in the EU is through the articulation of provisions that envisage the harmonisation of conditions for issuing visas for entry into the EU‟s territory only for short stays.120 Therefore, the common visa policy, which as I argued above contains a number of measures that imply de-bordering, in fact has the shortcoming that overall, it only deals explicitly with stays for up to three months. Thus, it does not tackle openly the issuing of visas for entering EU territory for longer stays. This was the case especially during the period prior to the signing of the Treaty of Amsterdam. Hence, although the articulations on this matter that I examined above have made significant contributions towards abolition of border controls in the EU for TCNs, currently not all border controls for TCNs are completely unified. The conditions for issuing visas for long stays into the territory of the member states remain by and large a prerogative of the relevant authorities of the state in question. This creates the conditions for the re-emergence in Commission discourse of references to “member states‟ national legislation”. On one level, this clashes directly with the aims of the common visa policy because it goes against the proclaimed aim of 119 Sandra Lavenex, „The Europeanization of Refugee Policies: Normative Challenges and Institutional Legacies‟, Journal of Common Market Studies, 39: 5 (2001), pp. 851-874, p. 854 120 As Bigo and Guild clarify, the issue of long stay visas is only in the process of incorporation into the EU law. Thus, they also follow this division of visas into long and short stay ones in Didier Bigo, Elspeth Guild, „Policing at a distance: Schengen Visa Policies‟ in Didier Bigo, Elspeth Guild (eds), Controlling Frontiers: