Security Versus Freedom?: A Challenge for Europe's Future

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SECURITY VERSUS FREEDOM?

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Security Versus Freedom? A Challenge for Europe’s Future

Edited by THIERRY BALZACQ University of Namur, Belgium and Sciences Po Paris, France and SERGIO CARRERA Centre for European Policy Studies (CEPS), Belgium

© Thierry Balzacq and Sergio Carrera 2006 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior permission of the publisher. Thierry Balzacq and Sergio Carrera have asserted their moral right under the Copyright, Designs and Patents Act, 1988, to be identified as the editors of this work. Published by Ashgate Publishing Limited Gower House Croft Road Aldershot Hampshire GU11 3HR England

Ashgate Publishing Company Suite 420 101 Cherry Street Burlington, VT 05401-4405 USA

Ashgate website: http://www.ashgate.com British Library Cataloguing in Publication Data Security versus freedom? : a challenge for Europe’s future 1. National security – Government policy – European Union countries 2. National security – European Union countries 3. Human rights – European Union countries 4. European Union 5. European Union countries – Emigration and immigration 6. European Union countries – Foreign relations – 21st century I. Balzacq, Thierry II. Carrera, Sergio 325.4 Library of Congress Cataloging-in-Publication Data Security versus freedom? : a challenge for Europe’s future / edited by Thierry Balzacq and Sergio Carrera. p. cm. Includes index. ISBN-13: 978-0-7546-4832-1 ISBN-10: 0-7546-4832-X 1. European Union countries -- Foreign relations. 2. National security -- European Union countries. 3. Justice, Administration of -- European Union countries. I. Balzacq, Thierry. II. Carrera, Sergio. JZ1570. S42 2006 355'.03304--dc22 2006013337 ISBN-10: 0 7546 4832 X ISBN-13: 978-0-7546-4832-1

Printed and bound in Great Britain by MPG Books Ltd. Bodmin, Cornwall.

Contents Notes on Contributors Acknowledgements 1.

The Hague Programme: The Long Road to Freedom, Security and Justice Thierry Balzacq and Sergio Carrera

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1

Freedom 2.

3.

4. 5.

6.

Liberty, whose Liberty? The Hague Programme and the Conception of Freedom Didier Bigo

35

Asylum Legislation in the European Community and the 1951 Convention: Key Concerns regarding Asylum Instruments Adopted in the ‘First Phase’ of Harmonization Madeline Garlick

45

The Bitter Fruits of a Common Asylum Policy Elspeth Guild

61

Aspects of Compatibility of Substantive EU Immigration Acquis with International and European Human Rights Law Nicholas Sitaropoulos

77

Integration of Immigrants Versus Social Inclusion: A Typology of Integration Programmes in the EU Sergio Carrera

87

Security 7.

The Treaty of Prüm and EC Treaty: Two Competing Models for EU Internal Security Thierry Balzacq, Didier Bigo , Sergio Carrera and Elspeth Guild

115

vi

8.

9. 10. 11. 12.

13.

Security Versus Freedom?

Data Surveillance and Border Control in the EU: Balancing Efficiency and Legal Protection Evelien Brouwer

137

Integrated Border Management at the EU Level Peter Hobbing

155

Negotiating the EU External Border Laura Corrado

183

The Outsiders: The European Neighbourhood Policy Karen E. Smith

205

No Constitutional Treaty? Implications for the Area of Freedom, Security and Justice Sergio Carrera and Elspeth Guild

223

CFSP after the Constitutional Treaty: The Stakes for the Future Udo Diedrichs and Funda Tekin

241

Justice 14.

15.

16.

Transparency, Justice and Territoriality: The EU Border Challenge Juliet Lodge

257

Trust-building Measures in the European Judicial Area in Criminal Matters: Issues of Competence, Legitimacy and Inter-institutional Balance Valsamis Mitsilegas

279

The Development of JHA: Policy Recommendations Thierry Balzacq and Sergio Carrera

291

References Name Index Subject Index

297 307 311

Notes on Contributors Thierry Balzacq is Research Fellow in the Justice and Home Affairs Unit in CEPS and Associate Professor of Political Science at the University of Namur in Belgium. He holds a doctorate in International Relations from the University of Cambridge, where he wrote his PhD thesis on “Constructivism, Pragmatism, and Security Studies”. Then, he carried out post-doctoral work at Harvard University in the field of International Relations. He works primarily on: the pragmatic (re)-conceptualisation of security; international relations theories; border management and EU security. His articles have appeared or are forthcoming in European Journal of International Relations, Review of International Studies, la Revue internationale et stratégique, Annuaire français des relations internationales, Security Dialogue and International Review of Sociology. Thierry Balzacq is also Expert to the European Parliament and teaches security studies at Sciences Po Paris. Didier Bigo is Professor of International Relations at Sciences-Po, the Institut d’Etudes Politiques de Paris and researcher at CERI/FNSP. He is also Director of the Centre for the Study of Conflict and Editor of the quarterly journal, Cultures et Conflits, published by 1’Harmattan. Didier Bigo’s research interests include the study of internal security at the European level, including the roles of the police and the military, the sociology of conflict and political violence, and international relations theory. Among his most recent publications we may highlight: Bigo D. and Guild E. (eds.) (2005), Controlling Frontiers: Free Movement into and within Europe, Aldershot: Ashgate Publishing. Bigo, D., ‘Reassuring and protecting, internal security implications of French participation in the coalition against terrorism’ in Eric Hershberg and Kevin W Moore, Terrorism and the International Order: contesting September 11 and its aftermath, The New Press, 2002; Bigo, D., ‘Border Regimes and Security in an Enlarged European Community: Police Co-operation with CEECs: between trust and obligation’, in Jan Zielonka Europe unbound : enlarging and reshaping the boundaries of the European Union, Routledge, 2002, pp. 213-240; Bigo, D; ‘La participation des militaires aux questions de sécurité intérieure: Royaume Uni, Irlande du Nord’ rapport du CERI pour la DAS, avec la participation d’Andy Smith et Emmanuel Guittet, 2002; Bigo, D; ‘Security and immigration, toward a critique of the governmentality of Unease’ in Alternatives, vol 27 supplement, Feb 2002, Lynne Riener editor, pp. 63-92. Evelien Brouwer is researcher at the Centre for Migration Law, Radboud University Nijmegen. She is writing a dissertation on the availability and the scope of legal

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remedies for third country nationals reported for the purpose of refusal of entry in the Schengen Information System (SIS). She has written different publications on data surveillance, the development of EU data bases, and the legal protection of individuals. Among her most recent list of publication the followings can be highlighted: E. Brouwer, Effective Remedies for Third Country Nationals in EU Law: Justice Accessible to All? European Journal of Migration and Law 7: 219-236, 2005; E. Brouwer, A Changing Dynamic. Legal and Practical Developments in the EU in Response to the Terrorist Attacks of 11.09, in European Journal of Migration and Law 4: 399-424, 2003; E. Brouwer, Eurodac: its Limitations and Temptations, European Journal of Migration and Law 4: 231-247, 2002; E. Brouwer, P. Catz, E. Guild, Immigration, Asylum and Terrorism. A Changing Dynamic in European Law, Reeks Recht & Samenleving nr. 19, Nijmegen 2003 Sergio Carrera is a Research Fellow at the Centre for European Policy Studies (CEPS). He is also an external expert on ‘Freedom, Security and Justice’ for the European Economic and Social Committee and on ‘immigration and integration’ the European Parliament (DG IPOL). He is also PhD candidate in the Faculty of Law of the University of Maastricht, where previously he obtained an LL.M on “European, International and Comparative Law”. He is also involved in the management and coordination of various trans-European and international projects such as ELISE (European Liberty and Security – Fifth Framework Programme of DG Research (European Commission) and CHALLENGE (Changing Landscape of European Liberty and Security) Sixth Framework Programme of DG Research. His most recent publications are: Carrera, S. (2005), ‘What does free movement mean in theory and practice in an enlarged EU?’ European Law Journal, Vol. 11, Number 6, November 2005, pp. 699-721; Carrera, S. (2005), ‘Integration as a process of inclusion of migrants? The case of long-term residents in the EU’, in H. Schneider (ed.), Migration, Integration and Citizenship: A Challenge for Europe’s Future, Collective Volume 11, Forum Maastricht: the Netherlands, pp. 109-137; Carrera, S. & T. Balzacq, Migration, Borders and Asylum: Trends and Vulnerabilities in EU policy, CEPS Monograph, July 2005; Carrera, S. & J. Apap, ‘Progress and obstacles in the Area of Justice & Home Affairs in an enlarging Europe’, in Justice and Home Affairs in the EU: Liberty and Security Issues after Enlargement, Edward Elgar Publishing, March 2004. Laura Corrado has been working since May 2001 as Administrator at the European Commission, in Directorate General ‘Justice, Freedom and Security’, where she has been dealing with a variety of issues covering EU visa policy and border management, as well as other Schengen-related matters. She graduated in International Law at the University of Perugia (Italy) and obtained afterwards a ‘Master in European Political and Administrative Studies’ at the College of Europe in Bruges (Belgium). Before joining the Commission, she worked first as Assistant in International Law and International Organisation at the University of Perugia and then as Researcher and Trainer at the European Institute of Public Administration

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in Maastricht (The Netherlands). During her career, she was involved in various researches and published several articles related to Justice and Home Affairs issues, and in particular on Schengen matters, visa, borders and migration policy: ‘La politique communautaire en matière de visas’, L’Observateur de Bruxelles, Délégation des barreaux de France, n° 49, October 2002; ‘Italy and the 1996 IGC: From the “Hard Core” to Flexible Integration’, in F. Laursen (ed.), The Amsterdam Treaty. National Preference Formation, Interstate Bargaining and Outcome, Odense University Press, 2002; ‘Vers une politique européenne commune en matière d’asile et de migration’ (with Claudia Faria), EIPASCOPE, 2001/2, pp. 2-15. Udo Diedrichs is working as a senior research fellow and project coordinator at the Department for Political Science of the University of Cologne. He is an expert on EU external policy, particularly on European foreign, security and defence policy. Recent publications include: ‘Between Kosovo and Iraq: changing paradigms of German foreign and security policy?’, in: Osvaldo Croci/Amy Verdun (Hrsg.): The Transatlantic Divide. Foreign and security policies in the Atlantic Alliance from Kosovo to Iraq, Manchester/New York 2006; ‘The European Parliament in CFSP: More than a Marginal Player?’, The International Spectator, Nr. 2, 2004, S. 31-46. ‘Explaining the EU’s Military Dimension: Theoretical and Conceptual Approaches to ESDP’, in: Ralph Rotte/ Tanja Sprungala (Hrsg.): Probleme and Perspektiven der Europäischen Sicherheits- and Verteidigungspolitik (ESVP), Münster 2004, S. 34-57. Funda Tekin finished her studies of economics with special reference to political science at the University of Cologne in summer 2004 writing her diploma thesis on the politico-administrative change and the Europeanisation of Turkey. She enriched her study experiences by spending considerable time in London, Paris (Institut d’études Politiques) and Turkey as ERASMUS student for educational purposes and as young researcher conducting interviews and gathering information for the diploma thesis for research purposes. Funda Tekin had worked as student assistant at the Jean Monnet Chair of Prof. W. Wessels at University of Cologne for two years before she became a research assistant in September 2004 as part of the FP5 ‘Foreign Policy Governance in Europe Research Network’ (FORNET) and of the FP6 Project ‘The Changing Landscape of European Liberty and Security’ (CHALLENGE). Currently Funda Tekin is also the project and financial manager of the Network of Excellence ‘Wider Europe deeper integration? Constructing Europe network’ (EU-CONSENT), since November 2005. Her research focuses are European integration, Common Foreign and Security Policy and European Security and Defence Policy, the European Union as international actor, EU and Turkey relations. Among her most recent publication we may highlight the followings: Entscheidungsverfahren, in: Weidenfeld, Werner/ Wessels, Wolfgang (eds.), Europa von A bis Z, Taschenbuch der Europaischen Integration, Bonn, 9. edition (2005) (in cooperation with Prof. Wessels); Three virtual e-learning units, European Political Science Network (epsNet).

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Elspeth Guild is Professor of European Migration Law at the Radboud University, Nijmegen. She is also Senior Research Fellow at the Centre for European Policy Studies, Brussels and a partner at the London law firm Kingsley Napley. Her most recent monograph is entitled The Legal Elements of European Identity Kluwer Law International, 2004. She lectures widely on EU law and recently acted as special advisor to the UK House of Lords Inquiry into EU economic migration. Peter Hobbing is a CEPS Associate Research Fellow in JHA matters since 2003. He obtained his PhD (Dr.iur.) at the University of Freiburg/DE for a comparative thesis on European and Latin American drugs law. His professional experience includes practical assignments as commander of a border surveillance unit in German customs as well as 20 years service in various border and criminal law-related departments of the European Commission (Customs and Indirect Taxation, Justice and Home Affairs). In recent years, his interest focused on the European concept for the integrated management of borders. Juliet Lodge is Director of the Jean Monnet European Centre of Excellence, Institute of Communication Studies, University of Leeds, UK. Her current research is on egovernment, ethics, transparency and accountability in the EU. She co-chairs the Ethics and Technology committee on eGovernment, and has participated in expert groups on biometrics and governance in the EU and JRC. Recent publications include: The 2004 Elections to the European Parliament (London, Palgrave, 2005 editor); ‘eJustice, Security and Biometrics: the EU’s Proximity Paradox’, European Journal of Crime and Criminal Law and Criminal Justice, 13(2005); ‘EU Homeland Security : Citizens or Suspects?’ Journal of European Integration 26(2004), ‘Will eDemocracy make Europe more Open?’ Las Technologias de la informacion y la e-Democracia EIPA & Eusko Legebiltzarra Bilbao, 2003; Britain and the EU: Exit,Voice and Loyalty- or a great British sulk?’ M. Baimbridge (ed.) The UK and Europe (forthcoming, Academic, 2006). Les elections européennes au Royaume-Uni et en Irlande’ in P.Delwit et P Poirier (Eds), Parlement puissant, electeurs absents?, Editions Université de Bruxelles, 2005 ; ‘The European Union and Security: How Terrorism Deepened Integration and Politicized the EU,’ in Editors: Russell A. Miller & Peer C. Zumbansen The Annual Of German & European Law (AGEL) Berghahn Books Valsamis Mitsilegas is currently Senior Lecturer in law at Queen Mary, University of London. From 2001 to 2005 he was legal adviser to the House of Lords European Union Committee. His interests and expertise lie primarily in the area of EU law, in particular EU Justice and Home Affairs. He is also an expert in the field of national and international legal responses to transnational organised crime, money laundering and terrorism. He is currently member of a team of experts advising the European Parliament Civil Liberties Committee on security issues.Valsamis has published widely in these areas, in the form of authored and co-authored books, essays in edited volumes and articles in academic journals including the European Law

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Review, the European Foreign Affairs Review, the Journal of Ethnic and Migration Studies and Cultures et Conflits. His books include: Money Laundering CounterMeasures in the EU (Kluwer Law International/Aspen, 2003); The EU and Internal Security (co-authored with J. Monar and W. Rees), (Palgrave/Macmillan 2003), and EU Criminal Law (forthcoming, Hart Publishing). Nicholas Sitaropoulos is a lawyer at the Department for the Execution of Judgments of the European Court of Human Rights, Council of Europe. He holds a PhD in Law from the University of London, University College London, has been a member of the Athens Bar since 1996 and Legal Officer at the Greek National Commission for Human Rights from 2000-2004. He has published widely on subjects relating to international and European human rights, international humanitarian law, immigration and refugee law, as well as nationality and antidiscrimination law. Dr Sitaropoulos is the author, inter alia, of Judicial Interpretation of Refugee Status, Ant. N. Sakkoulas Publishers/Nomos Verlagsgesellschaft, 1999 and of Immigration Law and Management in Greece, Ant. N. Sakkoulas Publishers/CIEEL, 2003. Karen E. Smith is Reader in International Relations and Director of the European Foreign Policy Unit at the London School of Economics. Her recent publications include The European Union at the United Nations: Intersecting Multilateralisms (co-edited with Katie Verlin Laatikainen; Palgrave, 2006), ‘Beyond the civilian power EU debate’, Politique Européenne 17 (2005), and ‘The EU and Central and Eastern Europe: the absence of inter-regionalism.’ Journal of European Integration 27, no. 3 (2005). She is the editor of CFSP Forum, an online newsletter about European Union foreign policy (www.fornet.info).

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Acknowledgements The editors would like to thank the contributors for the work that they have put into the manuscript during the various stages of its completion. Special thanks are due to Elspeth Guild who has made suggestions on almost all of the chapters in order to improve the overall quality of the book even further. The editors remain, however, solely responsible for its content. We are grateful to Ashgate for its comments and suggestions. Finally, we would like to acknowledge the support of Nicoletta Pusterla in formatting the chapters and Leonardo Colucci in compiling the thematic index at the end of the volume. This work falls within CHALLENGE – The Changing Landscape of European Liberty and Security – a research project funded by the Sixth Framework Programme of the European Commission’s Directorate-General for Research (www.libertysecurity.org).

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Chapter 1

The Hague Programme: The Long Road to Freedom, Security and Justice Thierry Balzacq and Sergio Carrera

1. Introduction In Justice and Home Affairs, the second multi-annual programme on Freedom, Security and Justice, the so-called ‘the Hague Programme’ has become a milestone.1 Yet, the issues included under the heading ‘Freedom, Security and Justice’ are not comparable to any other EU policies. Instead they are probably the most dynamic, sensitive and hotly contested. Indeed, forming an essential part of the traditional concept of national sovereignty, these areas are fraught with national fears, rival ideologies and competing political sensitivities. These problems partly explain why common and effective policy responses are hard to achieve and maintain. Moreover, this difficulty is exacerbated by the fact that decisions in these fields have mainly developed through an intergovernmental method of co-operation and have been subject to a strict unanimity voting rule at the Council of Ministers. Finally, a political struggle between national sovereignty and EU competence is still simmering away as the EU develops a common Area of Freedom, Security and Justice (AFSJ) in an enlarged Union. The aim of this chapter is to put developments in the AFSJ in context. We do this in two ways. First, we examine the main achievements in Freedom, Security and Justice. Second, we discuss the level of policy convergence reached in these three dimensions as well as some of the most relevant policies being proposed or expected to come on the agenda during the Hague Mandate. By policy convergence we mean not only the degree of harmonisation or level of ‘Europeanisation’ based on the number of legal instruments that have been adopted at the EU level, but also to the discretion left to member states in the application of a wide range of provisions incorporated in the EU laws examined. In other words, convergence is achieved when member states agree to abide by the rules they have enacted. By contrast, there is a lack of convergence when a set of provisions contained in the rules agreed grant wide powers to the member states. In this context, taking the Hague Programme as a landmark, our analysis does not attempt to present an exhaustive list of all the 1 European Council, The Hague Programme: Strengthening Freedom, Security and Justice in the European Union, 2005/C53/01, OJ C53/1, 3.3.2005.

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measures that have been adopted, but instead offers an overview of the main and most recent legal steps and initiatives towards a common EU policy. This chapter is divided up into five sections. The first introduces the reader to the defining problem of the AFSJ, i.e. the division of competence between the EC first and the EU third pillars. Section two presents the main provisions of the Hague Programme under ‘Strengthening Freedom’. Section three examines ‘Strengthening Security’, whereas section four analysis ‘Strengthening Justice’. Finally, section five gives the plan of the volume. 2. Formulating a Common Strategy for Freedom, Security and Justice The journey started with the entry into force of the Treaty of Amsterdam. In May 1999, policies on immigration, asylum and free movement of persons were moved to the realm of Community competence under the EC first pillar, i.e. Title IV of the EC Treaty, ‘Visas, asylum, immigration and other policies related to free movement of persons’.2 In addition to the commitment to abandon the unanimity voting rule within a period of five years after the entry into force of the Treaty of Amsterdam,3 the Council was required to adopt, inter alia, measures on asylum (Art. 63.1 EC Treaty), refugees and displaced persons (Art. 63.3 EC Treaty), immigration policy (Art. 63.2 EC Treaty), and instruments defining the rights as well as conditions under which non EU-nationals residing legally inside the Union might move in another member state (Art. 63.3 EC Treaty). While all the other policies that are part of Title IV of the EC Treaty already benefit from the use of qualified majority voting (QMV), the field of legal immigration as included in Art. 63.3.a EC Treaty continues to be subject to the unanimity rule and falls outside the co-decision procedure as provided by Art. 251 EC Treaty.4 In addition to the evident lack of efficiency,5 the unanimity rule is the direct expression 2 With the entry into force of the Treaty of Amsterdam ‘Visas, asylum, immigration and other policies related to the free movement of persons’ came under the EC’s first pillar, see Arts 61-69 EC Treaty. 3 Art. 67.1 EC Treaty provides that ‘During a transitional period of five years following the entry into force of the Amsterdam Treaty, the Council shall act unanimously on a proposal from the Commission or on the initiative of a Member State and after consulting the European Parliament’. Moreover, in para. 2, Art. 67.1 holds that ‘After this period of five years the Council shall take a decision with a view to providing for immigration and asylum to be governed by the co-decision procedure established in Art. 251 EC Treaty and qualified majority vote’. 4 Following Art. 63.3.a of the EC Treaty, regular immigration can be understood as ‘conditions of entry and residence, and standards on procedures for the issue by Member States of long term visas and residence permits, including those for the purpose of family reunification’. 5 It is obvious that in an ever-enlarging EU the veto power given to every member state (unanimity rule) within the Council seriously affects the working method and the outcome of the negotiations.

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of questionable maintenance of individual sovereignty powers within the Council of Ministers. To make the best of the situation, the Council agreed on 22 December 2004 to act by QMV for measures under Arts. 62.1.2.a and 3 EC Treaty, which include abolishing internal border controls on persons, establishing standards for checks on persons at internal borders and freedom to travel within the EU for three months for third-country nationals.6 In addition, it applies QMV to Arts. 63.2.b. and 3.b EC Treaty, concerning burden-sharing among member states with regard to asylum-seekers and illegal immigration, and the repatriation of illegal residents.7 However, none of the other fields of immigration, such as legal migration-related issues, are included. By the same token, the areas enshrined in member states justice and security policies were not transferred to the ‘Community Method’ and remained within the scope of the EU third pillar or Title VI of the Treaty on European Union (TEU), ‘Provisions on Police and Judicial Cooperation in Criminal Matters’.8 The EU third pillar has different goals as well as institutional and decision making mechanisms to those in the EC first pillar.9 The goals of the EU third pillar are stipulated in Art. 29 TEU, which provides that ‘The Union’s objective shall be to provide citizens with a high level of safety within an area of freedom, security and justice by developing common action [for]…closer cooperation between police forces, customs authorities and other competent authorities in the member states’. The article goes on to highlight that this objective shall be achieved through enhanced co-operation between national security agencies (such as police) and judicial authorities ‘by preventing and combating crime, organised or otherwise, in particular terrorism, trafficking in persons and offences against children, illicit drug trafficking and illicit arms trafficking, corruption and fraud’. Nonetheless, all cooperation in this vast sphere continues to be based on ‘intergovernmentalism’, or, in Peers’s words, ‘black-market integration’.10 Competence for these policies remains largely in the hands of the ministers of justice and interior of the EU member states. The existing tools under the EC first pillar are the usual regulations, directives, recommendations, decisions and opinions. Under the umbrella of the EU third pillar, instead we find conventions, common positions and framework decisions. 6 Council Decision providing for certain areas covered by Title IV of Part Three of the Treaty establishing the European Community to be governed by the procedure laid down in Art. 251 of that Treaty of 22 December 2004, 2004/927/EC, OJ L 396/45. 7 See S. Peers, ‘Transforming decision-making on EC immigration and asylum law’, European Law Review, Vol. 30, No. 2, April 2005, pp. 285-96. 8 See Arts. 29-42 TEU. About the evolution of the EU Third Pillar in an institutional perspective, see P. J. Kuijper, ‘The Evolution of the Third Pillar from Maastricht to the European Constitution: Institutional Aspects’, Common Market Law Review, 41, 2004, pp. 609-626. 9 P. de Hert (2004), ‘Division of Competences between National and European Levels with regard to Justice and Home Affairs’, in J. Apap (ed), Justice and Home Affairs in the EU: Liberty and Security Issues after Enlargement, Cheltenham: Edward Elgar. 10 S. Peers (2000), EU Justice and Home Affairs Law, London: Longman, p. 81.

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The latter, which are binding on member states in their entirety and do not require national ratification, do not have direct effect. 11 The negative effects that the division between the two pillars creates have often been pointed out.12 To start with, the EU third pillar remains far from being the best democratic practice for the EU. For example, the European Court of Justice (ECJ) does not have full competence to review and interpret legal instruments dealing with judicial co-operation in criminal matters and police cooperation. At present, following Art. 35 TEU, member states can make a declaration recognising the jurisdiction of the Court in Luxembourg in these policies.13 As Chapter 8 of this volume argues, it is striking to see that only two of the ten new Member States have recognised the competence of the ECJ over third pillar-related issues. On the other hand, the European Parliament is not sufficiently included in the decision-making process due to the non-applicability of Art. 251 EC Treaty. The lack of democratic checks and judicial accountability under the EU third pillar has been commonly referred to by the literature as a ‘democratic and judicial deficit’.14 Finally, there is a lack of transparency, efficacy and a high degree of inefficiency owing to the existence of the two pillars. As regards transparency, the EU third pillar places contested political issues among the Member States into a highly technical, obscure and ambiguous legal matrix. This makes the role of the ECJ even more relevant as regards the final judicial interpretation of the legal complexities thereby adopted. The duality of pillars equally creates uncertainty as to the precise legal effects of each of the juridical acts being used under each pillar as well as in terms of their material scope.15 This also presents dangers for individual citizens. 11 According to Art. 34 of the TEU, ‘Framework Decisions shall be binding upon the Member States as to the result to be achieved but shall leave to the national authorities the choice of form and methods. They shall not entail direct effect.’ On the other hand, Art. 249 EC Treaty establishes that ‘A Directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods’. Directives may be addressed to any one member state and do not have to be addressed to all. Even though this article implies that the provisions contained in a directive are not directly applicable, the ECJ has ruled otherwise: an individual can rely on the provisions of a directive against a defaulting state after the time limit for implementation has expired. For an in-depth study of the legal instruments that are being used to develop EU policy, see P. Craig and G. de Búrca, EU Law: Text, cases and materials, Oxford: Oxford University Press, 2000. 12 See T. Balzacq and S. Carrera, Migration, Borders and Asylum: Trends and Vulnerabilities in EU Policy, CEPS, Brussels, July 2005. 13 Following Art. 35.2 TEU, ‘By a declaration made at the time of signature of the Treaty of Amsterdam or at any time thereafter, any Member State shall be able to accept the jurisdiction of the Court of Justice to give preliminary rulings as specified in paragraph 1’. 14 M. den Boer (2004), ‘The European Convention and its Implications for Justice and Home Affairs Cooperation’, in J. Apap (ed.), Justice and Home Affairs in the EU: Liberty and Security Issues after Enlargement, Cheltenham: Edward Elgar. 15 For an analysis of the concept of efficiency in relation to Justice and Home Affairs policies, see M. Anderson and J. Apap, Striking a Balance between Freedom, Security and Justice in an Enlarged European Union, CEPS, Brussels, 2002, pp. 25-28.

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Based on the foundations provided by the Amsterdam Treaty, the Tampere European Council of 15 and 16 October 1999 provided the political impetus for the gradual development of an AFSJ.16 The Council conclusions of the Finnish Presidency sought to set out a roadmap leading to the establishment of a ‘Union of Freedom, Security and Justice’.17 This was set in the framework of a five-year programme (1999-2004) that aimed at setting in stones a proper balance between freedom, security and justice. It also presented a timetable, the so-called Tampere Scoreboard, which specified deadlines and structured the political agenda. Point 1 of The Tampere Programme provided that the AFSJ should be ‘firmly rooted in a shared commitment to freedom based on human rights, democratic institutions and the rule of law’. Tampere conclusions were often subject to various criticisms regarding the unsatisfactory implementation process and for failing to meet the deadlines originally agreed.18 But before the lessons of the Tampere conclusions were set out, a second multi-annual programme, ‘the Hague Programme’, was set in motion. The Hague Programme was agreed by the European Council on 4-5 November 2004. It sets a new policy agenda for the next five years (2004-2009).19 By and large, the Hague Programme addresses pretty well the same topics. However, if we compare the guiding common values of the Tampere and Hague Programmes, the latter seems to shift the balance between ‘freedom’ and ‘security’ in a very critical way. There has been a significant change in the values on which the EU’s AFSJ is being built. In fact, the ‘shared commitment to freedom based on human rights, democratic institutions and the rule of law’, as set out at Tampere, is not a cornestone of its successor. The Council now gives a high priority to security, meaning: ‘the development of an area of freedom, security and justice, responding to a central concern of the peoples of the States brought together in the Union’. ‘The central concern of the peoples of the States’ is thus translated into a security-led approach which dominates the Programme. In other words, it is as if ‘the security of the State’ predates the liberty of the individual. Substantial sections of the programme emphasise provisions relating to ‘strengthening security’ (such as the improvement of exchange of information to counter terrorism). It is also surprising that many security-related measures are found in the sections of ‘strengthening freedom’ (for instance border checks, the fight against illegal immigration, biometrics and information systems). By contrast, protection of fundamental rights, fair treatment of third country nationals, the role 16 See the Presidency Conclusions of the Tampere European Council, 15-16 October 1999, SN 200/99, Brussels. See P. Boeles (2001), ‘Introduction: Freedom, Security and Justice for All’, in E. Guild and C. Harlow (eds.), Implementing Amsterdam: Immigration and Asylum Rights in EC Law, Hart Publishing: Oxford Portland. 17 See the Presidency Conclusions of the Tampere European Council (op. cit.), par. 1027. 18 J. Apap and S. Carrera, ‘Progress and Obstacles in the Area of Justice and Home Affairs in an Enlarging Europe’, in J. Apap (ed.), Justice and Home Affairs in the EU: Liberty and Security Issues after Enlargement, Cheltenham: Edward Elgar, 2004, pp. 1-24. 19 European Council, The Hague Programme: Strengthening Freedom, Security and Justice in the European Union, 2005/C53/01, OJ C53/1, 3.3.2005.

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and powers of the newly proposed Fundamental Rights Agency and the role of the European Court of Justice are dealt with very briefly.20 To take the Hague Programme forward, the European Commission agreed on an Action Plan implementing the Hague Programme 2005/184 on 10 May 2005 (hereafter referred to as the Action Plan).21 The Action Plan identifies ten strategic objectives or priority areas. The actual translation of the Hague Programme’s milestones into concrete legal instruments is located in the annex of the Action Plan, which specifically lists the key actions and measures to be taken over the next five years as well as the deadlines for them to be adopted. The ten policy priorities that will prevail in the AFSJ for the next five years are presented thus: 1. Fundamental rights and citizenship – creating fully-fledged policies. 2. The fight against terrorism – working towards a global response. 3. A common asylum area – establishing an effective harmonised procedure in accordance with the Union’s values and humanitarian tradition. 4. Migration management – defining a balanced approach. 5. Integration – maximising the positive impact of migration on our society and economy. 6. Internal borders, external borders and visas – developing an integrated management of external borders for a safer Union. 7. Privacy and security in sharing information – striking the right balance. 8. Organised crime – developing a strategic concept. 9. Civil and criminal justice – guaranteeing an effective European area of justice for all. 10. Freedom, security and justice – sharing responsibility and solidarity. 3. Strengthening Freedom 3.1. European citizenship and the freedom of movement Respect for the fundamental rights of the individual and the rule of law should be the core pillars and general philosophy of the Union’s AFSJ. Under the heading ‘Strengthening Freedom’, the Hague Programme brings together a wide number of policies ranging from citizenship of the Union to asylum, migration and borders. The goal of progressively establishing an AFSJ entails a series of processes that call for a common strategy and policy framework on the freedom of movement as being closely tied to the status of European Citizenship and the sort of human 20 UK Parliament, House of Lords Select Committee on the European Union, The Hague Programme: A Five-year Agenda for EU Justice and Home Affairs, Report with Evidence, 10th Report, HL Paper 84, Session 2004-05, London, 23 March 2005, pp. 11-13 and p. 34. 21 European Commission, Communication on 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, Brussels, 10.5.2005.

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7

mobility by non-EU nationals labelled as ‘immigration and asylum’. The processes of Europeanisation have rapidly changed perceptions about national sovereignty. The abolition of border controls at internal frontiers and the consolidation of freedom of movement for European citizens are key challenges to the monopoly of states’ power to decide, through the enactment and enforcement of laws, ‘who is included’ (citizen) and ‘who is excluded’ (foreigner). While leading to a partial denationalisation of policies and more of a distribution of powers, these elements also foster strong transnational linkages at economic, political and societal levels. The introduction by the Treaty on European Union (TEU) of the concept of European citizenship is a milestone in the process of political integration of the Union. This Treaty attached the right for EU citizens to move and reside freely to other member states and, while doing so, not to suffer unequal treatment and discrimination.22 But the power to decide ‘who is’ or ‘who is not’ an EU citizen remained in the hands of the Member States’ authorities. In fact, Art. 17.1 EC Treaty confers the title of citizen of the Union to every person holding the nationality of a member state. In particular, this provision states that ‘Citizenship of the Union is hereby established. Every person holding the nationality of a member state shall be a citizen of the Union. Citizenship of the Union shall complement and not replace national citizenship’.23 In addition, Art. 18.1 EC Treaty provides that ‘Every citizen of the Union shall have the right to move and reside freely within the territory of the member states, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect’. Thus EU citizenship generates a new concept of ‘citizenship’ no longer based exclusively on a feeling of belonging to a national community, but to a larger community of liberal democracies based on a common set of values the European Union. The Hague Programme makes reference to an important policy development that has revisited rights of free movement and, indirectly, EU citizenship, i.e. the Directive 2004/38/EC on the rights of citizens of the Union and their family members to move and reside freely within the territory of the member states.24 The Directive establishes conditions and rules for the exercise of the right of free movement and residence within the EU by Union citizens and their family members.25 It marks a 22 E. Guild (2004), The Legal Elements of European Identity: EU Citizenship and Migration Law, The Hague: European Law Library, Kluwer Law International, pp. 35-50. 23 See De Groot, G.R. (1998), ‘The relationship between the nationality legislation of the Member States of the European Union and European Citizenship’, Chapter VI, in La Torre, M. (ed.), European Citizenship: An Institutional Challenge, The Hague: Kluwer International Law. 24 See Directive 2004/38/EC of the European Parliament and the Council of 29 April 2004, on the right of citizens of the Union and their family members to move and reside freely within the territory of the member states amending Regulation (EEC) No. 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, OJ L 158/77, 30 April 2004. 25 The member states have been asked to transpose it onto their national legislations by 30 April 2006.

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Security Versus Freedom?

major legislative step forward as it replaces, integrates and supplements the existing sets of secondary legislation dealing separately with the freedom of movement of workers, self-employed persons, students and other economically inactive groups.26 Moreover, it codifies the main principles recognised and developed by the case laws of the European Court of Justice. The Hague Programme calls the European Commission ‘to submit in 2008 a report to the Council and the European Parliament for allowing EU citizens to move within the European Union on similar terms to national of a Member State moving around or changing their place of residence in their own country’. In this regard, the European Commission’s Action Plan implementing the Hague Programme establishes as one of the ten ‘Strategic Objectives’ in an AFSJ, ‘Fundamental rights and citizenship: creating fully fledged policies’. This objective is, we assume, based on the need to guarantee ‘the full development of policies monitoring and promoting the respect for fundamental rights for all people and policies enhancing citizenship’. As the Commission says inside the Action Plan, ‘Citizenship of the Union entails a number of crucial rights such as free movement’. Further, the Plan also states that ‘the European Commission will pursue its actions to combat discrimination in all its forms’. These official statements raise a number of questions when it comes to the EU enlargement. Enlargement has profound effects in most recent waves of redrawing EU’s common external borders and what has been dubbed an EU identity along with the expansion of the status of being an EU citizen.27 The latest and ongoing enlargement processes provoke a differentiation of categories of European citizens. The enlargement of the Union that took place on 1st May 2004 has created a ‘variable geometry’ for the citizens of the Union as regards their freedom to move and reside for employment purposes. As a consequence, there are now two classes of EU citizenship. Citizens of most of the new Member States have been allocated a different set of rights and liberties whist also being called EU citizens.

26 The new Directive amends the Council Regulation on freedom of movement for workers within the Community, 1612/68/EEC of 15 October 1968, and repeals among others the following laws: the Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of member states and their families; the Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of member states with regard to establishment and the provision of services; the Council Directive 75/34/EEC of 17 December 1974 concerning the right of nationals of a member state to remain in the territory of another member state after having pursued therein an activity in a self-employed capacity; the Council Directive 90/365/EEC of 28 June 1990 on the right of residence for employees and self-employed persons who have ceased their occupation activity; the Council Directive 90/364/EEC of 28 June 1990 on the right of residence; and the Council Directive 93/96/EEC of 29 October 1993 on the right of residence for students. 27 See A. Górny and P. Ruspini (eds.) (2004), Migration in the New Europe: East-West Revisited, Basingstoke: Palgrave.

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9

The Treaty of Accession signed on 16 April 2003 gave EU-15 member states the option to introduce transitional arrangements for nationals moving for job purposes from the ten new Member States, except for the particular cases of Cyprus and Malta.28 These arrangements substantially limit the rights and liberties of workers and service providers from these countries to move and reside freely across and inside the borders of the EU-15 member states. These transitional periods draw the line between fully inclusive EU citizenship and second class citizenship which does not confer ‘equal rights and benefits’ in an AFSJ. The transitional periods are divided into three different stages, which have been officially called the ‘2+3+2 formula’.29 After the first two years of their application (by May 2006), the Treaty of Accession declared that the Council, on the basis of a report prepared by the Commission, ‘shall review the functioning of the transitional measures’. Following that call for action, the European Commission published in February 2006 a Report on the Functioning of the Transitional Arrangements set out in the 2003 Accession Treaty (period 1 May 2004-30 April 2006). The Commission’s report offers data on labour movement from new to old EU Member States since enlargement and recommends that the Member States ‘carefully consider whether the continuation of these restrictions is needed, in the light of the situation of their labour markets and of the evidence of this report’. It is uncertain however whether the report will duly convince all the Member States to lift their transitional arrangements and open their labour markets. It is our view that all the nationals of the EU Member States should be granted without delay all the established rights and freedoms directly linked with the status of EU citizen. In short, the transitional period should be lifted as it is an unnecessary obstacle to the free movement of persons and the achievement of non-discrimination on the grounds of nationality as recognised by Article 12 EC Treaty.30 3.2. Immigration and asylum: A common policy in the EU? The development of a common immigration and asylum policy has been constantly referred to at official level as a decisive priority for the Union’s future. However, these are areas where political statements and goals do not necessarily match the policy reality at hand. The lack of a truly common immigration and asylum policy continues to dog the EU. While it is true that Member States continue to exercise the main competences in immigration and asylum fields, and that the Europeanisation

28 Carrera, S. and A. Turmann (2004), Towards the Free Movement of Workers in an Enlarged EU?, CEPS Commentary, CEPS, Brussels, April. 29 A. Adolfini, ‘Free movement and access to work of citizens of the new Member States: The transitional measures’, Common Market Law Review, Vol. 42, No. 2, April 2005, pp. 469-98. 30 See S. Carrera, ‘What does free movement mean in theory and practice in an enlarged EU?’, European Law Journal, Vol. 11, No. 6, November 2005, pp. 699-721.

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process in these is in its infancy, some substantial legislative steps have nonetheless been taken at EU level. The meeting of the European Council at Tampere represented a turning point following the communitarisation (i.e. the transfer to the competence of the European Community) of these areas by the Amsterdam Treaty.31 Among the package of objectives and deadlines presented in the Tampere milestones, fair treatment of third-country nationals and the establishment of a common asylum system were pinpointed as essential objectives for the AFSJ to become a reality. In line with the Tampere agenda, the European Commission started to take the necessary steps towards establishing a common policy framework. While some progress has been reached in areas where few would have expected it a decade ago, the level of policy convergence since Amsterdam has been rather low.32 The Hague Programme has tried to breathe new life into the agenda. The Hague Programme places ‘immigration’ (regular and irregular) under the heading of ‘Strengthening Freedom’. The programme highlights the need for the EU to develop ‘a comprehensive approach, involving all the stages of migration, with respect to the root causes of migration, entry and admission policies and integration and return policies’. Based on that, the Commission Communication 2005/184 implementing the Hague Programme has identified as two of the ten strategic priorities for the next five years ‘Migration Management: Defining a balanced approach’ and ‘A Common Asylum Area: Establish an Effective Harmonized Procedure in accordance with the Union’s Values and Humanitarian Tradition’.33

31 European Council (1999), Tampere European Council, 15-16 October 1999, Presidency Conclusions, SN 200/99, Brussels. The Treaty of Amsterdam entered into force in May 1999. ‘Visas, asylum, immigration and other policies related to the free movement of persons’ came under the EC’s First Pillar (i.e. Community governance/method); see Arts. 61-69 EC Treaty. It is worth noting that Denmark, Ireland and the UK have negotiated special protocols (‘opt out clauses’) attached to the Amsterdam Treaty that allow them to remain outside the measures adopted under the umbrella of Title IV of the EC Treaty. Ireland and the UK may, however, opt into any legal instrument dealing with these matters on a case-by-case basis. As discussed in this analysis, these countries tend to adopt most proposals concerning asylum and irregular migration, but opt out on matters dealing with regular migration. 32 The lack of progress has been shown by the latest European Commission’s biannual report or ‘scoreboard’ assessing the progress made until the first half of 2004 shows the low level of policy convergence achieved in the field of ‘immigration’. European Commission (2004a), Communication, Area of Freedom, Security and Justice: Assessment of the Tampere Programme and Future Orientations, COM(2004) 4002 final, Brussels, 2.6.2004. See also, European Commission (2004), The Area of Freedom, Security and Justice: Assessment of the Tampere programme and future orientations – List of the most important instruments adopted, Commission Staff Working Paper, COM(2004) 401 final, Brussels, 2.6.2004. 33 Communication from the 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, Brussels, 10.5.2005.

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11

The Hague Programme organises the field of regular immigration in two parts: Legal migration and the integration of immigrants. Let us start with legal migration. The European Council now clearly states that ‘the determination of volumes of admission of labour migrants is a competence of the Member States’ and invites the European Commission ‘to present a policy plan on legal migration including admission procedures’.34 It is regrettable that the Council did not take this unique opportunity to adopt a more ambitious position (i.e. by calling for a proposal for binding legislation) in determining the objectives for the next five years for an AFSJ.35 A stronger position in The Hague Programme concerning the field of regular migration would have represented a real push towards the strengthening of freedom and justice in an enlarging EU. Following the provisions contained in the Hague Programme, the European Commission presented a Policy Plan on Legal Migration on December 2005, which sets out a roadmap for the period 2006-2009 and provides a list of actions and legislative proposals that it intends to take.36 As to the degree of harmonisation and the European Commission’s definitive approach, the latter will present by 2007 a general framework proposal for a Directive aiming at guaranteeing a common framework of rights to all immigrants in legal employment already admitted in the territory of a Member State. It will also draw up four specific directives (sectoral approach) dealing with, respectively, highly skilled workers, seasonal workers, intracorporate transferees and paid trainees. The first two are expected to be presented between 2007 and 2008, and the last two by 2009.37 The low level of policy convergence in the field of regular immigration has often been criticised.38 In addition to the restricted number of policy measures adopted, the quality of some of these acts has been seriously challenged. An in-depth examination of some of their provisions reveals surprisingly low minimum standards (which might put international and European human rights commitments at risk), wide discretion for Member States’ application and substantial exceptions even to core elements (rights and freedoms), which allow for wide practical differences between Member 34 See European Council, The Hague Programme: Strengthening Freedom, Security and Justice in the European Union, 2005/C53/01, OJ C53/1, 3.3.2005, point 1.4. 35 See H. Schneider, ‘Towards a European Migration Policy: From Maastricht to Amsterdam, from Tampere to The Hague’ in H. Schneider (ed.), Migration, Integration and Citizenship: A Challenge for Europe’s Future, Vol. II, Forum Maastricht: The Netherlands, 2005. 36 Commission Communication, Policy Plan on Legal Migration, COM(2005) 669 final, SEC(2005) 1680, Brussels, 21.12.2005. 37 See UK House of Lords, European Union Committee, Economic Migration in the EU, 14th Report of Session 2004-2005, Report with Evidence, Published by the Authority of the House of Lords, HL Paper 58, 16 November 2005 38 See UK House of Lords, European Union Committee, The Hague Programme: A Five Year Agenda for EU Justice and Home Affairs, 10th Report of Session 2004-2005, Report with Evidence, Published by the Authority of the House of Lords, HL Paper 84, 23 March 2005, Chapter 5: Migration, point 25.

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Security Versus Freedom?

States. Among the few EU legal measures adopted by the Council of Ministers, the two most important for immigrants are the Council Directives on the right to family reunification 2003/86 and the Council Directive on the status of third country nationals who are long term residents 2003/109. The integration of immigrants has become particularly important within the Hague Programme.39 The Council points out that ‘it is essential to develop effective policies, and to prevent isolation of certain groups’ and ‘call for the creation of equal opportunities to participate fully in society’. The Hague Programme argues ‘for greater coordination of national integration policies and EU initiatives in this field’, and proposes a list of common basic principles (CBPs) on which a ‘coherent European framework on integration’ needs to be established. The European Commission’s Action Plan implementing the Hague Programme reconfirmed integration as one of the top ten strategic priorities for the creation of an Area of Freedom, Security and Justice in the EU. To substantiate this view, the European Commission presented a Communication in September 2005 on A Common Agenda for Integration,40 in order to implement CBPs into a number of actions to be taken at both national and EU levels. The Communication calls for an enhanced role for the National Contact Points on integration and paves the way for the second edition of the handbook on integration, the setting up of an integration website and European Integration Forum which will give a wide range of stakeholders a voice about this controversial issue. In summary, the most relevant policy measures and legally binding instruments dealing with regular migration adopted, are: • •

Council Recommendation 2005/762/EC of 12 October 2005 to facilitate the admission of third-country nationals to carry out scientific research in the European Community.41 Council Directive 2004/114/EC of 13 December 2004 on the conditions of admission of third-country nationals for the purposes of studies, pupil

39 S. Carrera, ‘Integration as a Process of Inclusion for Migrants? The Case of Longterm Residents in the EU’, in H. Schneider (ed.), Migration, Integration and Citizenship: A Challenge for Europe’s Future, Forum Maastricht, Maastricht University, 2005(b), pp. 10938. 40 See the European Commission’s Communication, A Common Agenda for Integration – Framework for the Integration of Third Country Nationals in the European Union, COM(2005) 389 final, Brussels, 1.9.2005(b). In the words of the Commission, this Communication represents the Commission’s first response to the invitation of the European Council to establish a coherent European framework for integration. The cornerstones of such a framework are proposals for concrete measures to put the CBPs into practice, together with a series of supportive EU mechanisms. Taking into account existing EU policy frameworks, the Communication provides new suggestions for action both at EU and national level. 41 Council Recommendation 2005/762/EC of 12 October 2005 to facilitate the admission of third-country nationals to carry out scientific research in the European Community, OJ L 289/26, 3.11.2005.

The Hague Programme: The Long Road to Freedom, Security and Justice

• • •

13

exchange, unremunerated training or voluntary service.42 Council Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the member states.43 Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents.44 Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification.45

The development of a common EU policy on irregular migration has become a major priority in the progressive establishment of an AFSJ.46 The Hague Programme insists on ‘the establishment of an effective removal and repatriation policy based on common standards for persons to be returned in a humane manner and with full respect for their human rights and dignity’. Few would disagree, however, that there is no common definition of ‘illegal immigration’. Indeed, there are serious conceptual problems in the definition of this category of migration. Before a person can be an illegal immigrant, s/he must find him/herself within a state that provides the legislation defining her/his presence as ‘illegal’. As Guild has rightly pointed out, there are profound conceptual and legal problems in the definition of what ‘illegal immigration’ is in the EU. She puts it thus: ‘the unspoken assumption is that there is no substantive difficulty in defining who is an illegal immigrant’.47 Therefore,

42 Council Directive 2004/114/EC of 13 December 2004 on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service, OJ L 375, 23.12.2004. 43 Council Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the member states, amending Regulation (EEC) No. 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/ EEC, OJ L 158/77, 30.4.2004. 44 Council Directive 2003/109/EC of 25 November 2003 concerning the status of thirdcountry nationals who are long-term residents, OJ L 16/44, 23.1.2004. 45 Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, OJ L 251/12, 3.10.2003. 46 This chapter uses the concept of ‘irregular immigration’ instead the one of ‘illegal immigration’. The negative brand of ‘illegal immigrant’ might ascribe to the person involved a social status that entails suspicion (leading to the person becoming a suspect). The disapproving connotations that accompany use of this term, alongside ‘the fight against illegal immigration’ (which together create a dangerous link between this status and an act of criminality) might be partly overcome by instead using a rather neutral term such as irregular for this type of immigrant or immigration. 47 E. Guild, ‘Who is an irregular migrant’, in B. Bogusz, R. Cholewinski, A. Cygan and E. Szyszczak, Irregular Migration and Human Rights: Theoretical, European and International Perspectives, Leiden: Martinus Nihjoff, 2004, pp. 3-28. As Guild shows, the national law of the Member States seems to avoid defining directly who is an illegal immigrant.

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an individual cannot be said to be illegal migrant before even entering the country involved.48 The Hague Programme treats return and readmission policy as one of the fundamental elements in the so called ‘external dimension of asylum and immigration’. The Treaty establishing the European Community (TEC) provides, since its Amsterdam revision, for Community competence in adopting measures concerning what has been officially called ‘illegal immigration and illegal residence’, including ‘repatriation of illegal residents’.49 Article 63.3.b of the TEC has been given a wide interpretation and is considered the legal basis of EU return policy.50 The latter policy field includes not only co-operation between Member States in the area of the expulsion of third country nationals and the development of common standards to implement such expulsion, but also the conclusion of readmission agreements with third countries. Yet ‘return and readmission policy’ are two fields which at times lead to a number of circumstances where efficiency (security) and the respect of human rights and fundamental freedoms can clash. The need to establish ‘common principles on expulsion’ has been rightly advocated by a number of non-governmental organisations active in the field of migration.51 An EU framework on irregular migration and expulsion is needed to provide common ground for the respect of the set of legal human rights obligations on which the EU is itself founded.52 It needs to foster the protection of the individual, irrespective of the nationality and ‘administrative status’ of the latter. In any event ‘forcible expulsion’ must not become the general rule 48 J. Crowley, ‘Differential free movement and the sociology of the ‘internal borders’’ in E. Guild and C. Harlow (eds), Implementing Amsterdam; Immigration and Asylum Rights in EC Law, Oxford: Hart Publishing, 2001, pp. 13-32. 49 TEC, Article 63.3.b 50 Ryszard Cholewinski, ‘European Union Policy on Irregular Migration: Human Rights Lost?’, in: Barbara Bogusz et al. (ed.), Irregular Migration and Human Rights: Theoretical, European and International Perspectives, (Leiden, 2004), p. 178-179 51 To this regard, see ‘Common principles on removal of irregular migrants and rejected asylum seekers’ by Amnesty International, Caritas Europa, Churches’ Commission for Migrants of Europe, European Council for Refugees and Exiles, Human Rights Watch, Jesuit Refugee Service-Europe, Platform for International Cooperation on Undocumented Migrants, Quaker Council for European Affairs, Save the Children, Cimade, Iglesia Evangélica Española, Federazione delle Chiese Evangeliche in Italia, (August 2005). 52 See for instance the Proposal for a Directive on common standards and procedures in Member States for returning illegally staying third-country nationals, COM(2005) 391 final, Brussels, 1.9.2005. Art. 1 states that ‘This Directive sets out common standards and procedures to be applied in Member States for returning illegally staying third-country nationals, in accordance with fundamental rights as general principles of Community law as well as international law, including refugee protection and human rights obligations’. See also Commission Staff Working Document, Annex to the Proposal for a European Parliament and Council Directive on common standards on procedures in Member States for returning illegally staying third-country nationals, Impact Assessment, SEC(2005) 1057, Brussels, 1.9.2005.

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under the EU framework on return of those individuals categorised as being ‘illegal’. The voluntary nature of the framework should mean that it becomes the norm in all circumstances. The protection of the rights of the migrant, asylum seeker, and her/his family members, minors and other vulnerable groups should be at the heart of any policy response in the EU. Bearing in mind the importance of external relations in any return policy, it is useful to refer to what James Hollifield defined as the ‘liberal paradox’ that states have to face with respect to their international relations and migration policies. On the one hand, states developed their international relations on the basis of an open world economy, which has its roots in Adam Smith’s liberalism and is commonly known as ‘globalisation’ nowadays. On the other hand, the concept of nation state is at the core of the international relations system, originating from the post-Wesphalian order, with the inviolability of the nation state as its main principle. The latter principle means that countries are more prone to close and protect their national identities, borders and place control on freedom of movement. Hollifield identifies international conventions on the protection of human rights as positive factors that might help states elude this paradoxical position.53 Indeed, the application of international legal instruments, such as the European Convention of Human Rights and Fundamental Freedoms (ECHR) and the 1951 Geneva Convention on Refugees could provide the EU with a way out of its liberty versus security paradox, which is so striking in the field of irregular immigration. We would highlight the following among the most relevant policy measures and legal instruments in the field of irregular migration. • •

• •

Framework Decision 2002/629/JHA of 19 July 2002 on combating trafficking in human beings.54 Council Directive 2004/81/EC of 29 April 2004 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities.55 Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence.56 Framework Decision 2002/946/JHA of 28 November 2002 on the strengthening

53 J. F. Hollifield, ‘Migration and International Relations: The Liberal Paradox’, in H. Entziger, M. Martiniello, Catherine de Wenden, Migration Between States and Markets, (Aldershot, Ashgate, 2004), pp. 3-19. 54 Council Framework Decision 2002/629/JHA of 19 July 2002 on combating trafficking of human beings, OJ L 203/1, 1.8.2002. 55 Council Directive 2004/81/EC of 29 April 2004 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities, OJ L 261/19, 6.8.2004. 56 Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence, OJ L 328/17, 5.12.2002.

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Security Versus Freedom?

• •

of the penal framework to prevent the facilitation of unauthorised entry, transit and residence.57 Council Directive 2003/110/EC of 25 November 2003 on assistance in cases of transit for the purposes of removal by air.58 Council Decision 2004/573/EC of 29 April 2004 on the organisation of joint flights for removals from the territory of two or more member states, of thirdcountry nationals who are the subjects of individual removal orders.59

Let us turn now to asylum. According to the Tampere conclusions, a common European asylum system should include in the short term (‘first phase instruments’): a decision mechanism on the state responsible for the examination of an asylum application; common standards for fair and efficient asylum procedures; common minimum conditions for the reception of asylum seekers and the approximation of rules concerning the recognition and content of refugee status (i.e. what it confers). This should be completed with ‘second-phase measures’ on subsidiary forms of protection offering an appropriate status to any person in need of such protection.60 Member states have now agreed on the foundations required by the Tampere conclusions to accomplish the first phase for the progressive establishment of a common asylum policy. The Hague Programme calls for the final evaluation of the transposition and implementation of the first-phase legal instruments by 2007. Compliance with the 1951 Geneva Convention on Refugees and the 1967 Protocol relating to the Status of Refugees, the prohibition of expulsion or ‘principle of non-refoulement’61 as well as other relevant international human rights treaties should have been the point of departure and main philosophy underlying any policy measure dealing with asylum.62 As many NGOs, civil society organisations and

57 Council Framework Decision 2002/946/JHA of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence, OJ L 328/1, 5.12.2002. 58 Council Directive 2003/110/EC of 25 November 2003 on assistance in cases of transit for the purposes of removal by air, OJ L 321, 6.12.2003. 59 Council Decision 2004/573/EC of 29 April 2004 on the organisation of joint flights for removals from the territory of two or more member states, of third-country nationals who are the subjects of individual removal orders, OJ L 261/28, 6.8.2004. 60 Adoption of the second-phase instruments and measures is expected before the end of 2010. 61 Art. 33 of the Convention relating to the status of refugees, entitled ‘Prohibition of expulsion or return (‘refoulement’)’, stipulates that ‘No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion’. 62 For instance, Art. 14.1 of the Universal Declaration of Human Rights (1948) provides that ‘Everyone has the right to seek and to enjoy in other countries asylum from prosecution’.

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academics have noted,63 it seems, however, that so far EU legislations have low standards that may leave too much room for discretion in hands of the member states. Asylum is undoubtedly a human rights issue. Our assumption is therefore that any common measure should have at its roots the prevention of watering down current standards and commitments of international protection. For example, adequate reception conditions should be provided to asylum seekers right up until the final stage of the asylum application and not only at the very beginning. Since the Amsterdam Treaty (1999), the EU has adopted nine policy instruments dealing with asylum: • • •

• • •

Council Decision 2000/596/EC of 20 September 2000 establishing a European Refugee Fund.64 Council Regulation (EC) No. 2000/2725 of 11 December 2000 concerning the establishment of ‘EURODAC’.65 Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between member states in receiving such persons and bearing the consequences thereof.66 Council Regulation (EC) No. 2002/407 of 28 February 2002 concerning certain rules for the implementation of the EURODAC Regulation.67 Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers.68 Council Regulation (EC) No. 2003/343 of 18 February 2003 (the Dublin II Regulation) – establishing the criteria and mechanisms for determining the

63 See the Press Release by the European Council on Refugees and Exiles (ECRE), Amnesty International and Human Rights Watch, ‘Refugee and Human Rights Organizations across Europe express their deep concern at the expected agreement on asylum measures in breach of international law’, 28 April 2004. 64 Council Decision 2000/596/EC of 20 September 2000 establishing a European Refugee Fund, OJ L 252/12, 6.10.2000. 65 Council Regulation concerning the establishment of ‘EURODAC’ for the comparison of fingerprints for the effective application of the Dublin Convention of 11 December 2000, (EC) No. 2725/2000, OJ L 316, 15/12/2000. 66 Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between member states in receiving such persons and bearing the consequences thereof, OJ L 212/12, 7.8.2001. 67 Council Regulation laying down certain rules to implement Regulation (EC) No. 2725/2000 concerning the establishment of ‘EURODAC’ for the comparison of fingerprints for the effective application of the Dublin Convention of 28 February 2002, (EC) No. 407/2002, OJ L 62/1, 5.3.2002. 68 Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers, OJ L 31/18, 6.2.2003.

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• • •

member state responsible for examining an asylum application lodged in one of the member states.69 Council Regulation (EC) No. 2003/1560 of 2 September 2003 laying down rules for the application of the Dublin II Regulation.70 Council Decision 2004/904/EC of 2 December 2004 establishing the Second European Refugee Fund for the period 2005-2010.71 Council Directive 2004/83/EC of 29 April 2004 (the Asylum Qualification Directive) on minimum standards for the qualification and status of thirdcountry nationals and stateless persons as refugees or as persons who otherwise need international protection.72

4. Strengthening Security Security is a crucial aspect of the Hague Programme. In fact, textual analysis reveals that security provisions percolate through the justice and freedom sections. For instance, the establishment of the integrated management of external borders, visa policy and the interoperability of JHA databases (VIS, SIS II and EURODAC) are set within Strengthening Freedom. True, the integrated management of borders and visa policy are meant to facilitate free movement outside and inside the EU. It is acceptable, too, that the control of external borders complements the abolition of internal border checks. However, it is not entirely accurate to argue that freedom of movement subsumes security. In many cases, the only exception to freedom of movement, shared by all Members States, is the call for security. Unfortunately, then, in the Hague Programme security does take priority over freedom. Moreover, the primary targets of border management and visa policy are illegal migration, terrorism, human and drug trafficking. In this context, it is expected that an effective policy that combating these dangers will, as a consequence, lead to greater freedom, not the reverse. We therefore take border management, biometric and visa policy back to where they logically fall, i.e. within the section ‘Strengthening Security’.

69 Council Regulation establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national of 18 February 2003, (EC) No. 343/2003, OJ L 50/1, 25.2.2003. 70 Council Regulation laying down detailed rules for the application of Council Regulation (EC) No. 343/2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national of 2 September 2003, (EC) No. 1560/2003, OJ L 222/3, 5.9.2003. 71 Council Decision 2004/904/EC of 2 December 2004 establishing the Second European Refugee Fund for the period 2005-2010, OJ L 381/52, 28.12.2004. 72 Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third-country nationals and stateless persons as refugees or as persons who otherwise need international protection, OJ L 304/12, 30.9.2004.

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The Hague Programme groups its activities around three threats: the fight against terrorism, cross-border crime (human trafficking, drug trafficking) and irregular migration. However, only irregular migration and terrorism have received much attention. In the previous section, we investigated the problematic assumptions which drive policies that combat irregular migration. Thus, in this section we will set out the policy instruments geared primarily towards the fight against terrorism. Terrorism is regarded as the major threat facing the EU.73 To curb the threat, the Hague Programme starts off with an appeal to the basic principles that structure security communities such as the EU, i.e. solidarity. ‘Member States’, argues the Hague Programme, should ‘not confine their activities to maintaining their own security, but…focus also on the security of the Union as a whole’.74 Counter terrorism policies are mainly of four kinds: prevention of radicalisation,75 information sharing, border management and the protection of critical infrastructures.76 In turn, these policies fall within the 3P1R (Prevent, Protect, Pursue and Respond) which defines EU strategy in the fight against terrorism. Of these instruments promoted, two have been at the core of EU’s discussions, namely: information sharing and the management of borders. 4.1. Information sharing The principle of availability is the main innovation in the area of exchange of information. It means that ‘throughout the Union, a law enforcement officer in one 73 See European Council, Declaration on Combating Terrorism, Brussels, 25 March 2004. For a discussion, see Didier Bigo and Sergio Carrera ‘From New York to Madrid: Technology as the Ultra-Solution to the Permanent State of Fear and Emergency in the EU’, retrievable from http://www.ceps.be. 74 The Hague Programme, 2.2. 75 The Hague Programme stresses: ‘The Council should, by the end of 2005, develop a long-term strategy to address the factors which contribute to radicalization and recruitment for terrorist activities.’ See 2.2. The result so far takes the form of a Communication from the Commission to the European Parliament and the Council concerning terrorist recruitment: Addressing the factors the factors contributing to violent radicalization, COM(2005) 313 final, 21.9.2005. 76 Many measures have been adopted in order to fight against terrorism. For an overview see Council Framework Decision on combating terrorism 2002/475/JHA, 13 June 2002; Council Decision 2005/671/JHA on the exchange of information and cooperation concerning terrorist offences, 20 December 2005; Council of the European Union, Fight against Terrorist Financing, 14744/05, Brussels, 21 November 2005; Council Framework Decision on the execution in the European Union of orders of freezing property or evidence 2003/577/JHA, 22 July 2003; Council of the European Union, EU Action Plan on Combating Terrorism, 5771/1/06, REV 1, Brussels, 13 February 2006 ; Council of the European Union, The European Union Counter-Terrorism Strategy, 14469/4/05, Brussels, 30 November 2005; Council Common Position 2001/931/CFSP on the application of specific measures to combat terrorism and repeating Common Position 2005/936/CFSP, 20 March 2006. 05, Brussels, 30 November 2005; Counter-Terroris5771/1/06, Rnd).

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Member State who needs information in order to perform his duties can obtain this from another Member States and that the law enforcement agency in the other Member State which holds this information will make it available for the stated purpose.’77 Following this recommendation, a proposal for Council Framework Decision on the exchange of information under the principle of availability was tabled on 12 October 2005.78 The principle of availability fundamentally changes the notion of ownership of the information. In fact, Member States will be bound to make the information they hold available to other EU law enforcement authorities for the purposes of investigations in that state. What is of utmost importance is not so much the principle of availability as the architecture in which it falls. For the Hague Programme, what matters is whether the exchange of information enables Member States to manage the range of threats they have to deal with. It is in this context that we have to read the other policy instruments supported by the Hague Programme: The Border Management Agency, Communication of Data by Carriers, the Visa Information System and the Schengen Information System II. 4.2. The border management agency Council Regulation 2004/2007/EC establishes a European Agency for the Management of Operational Cooperation at the EU external borders.79 The Agency, which is based in Warsaw (Poland), will coordinate and assist Member States’ various actions in managing (controlling) the common EU external borders. In particular, Art. 1 of the Regulation provides that while the main responsibility for the management of the external borders will remain in the hands of the Member States. ‘The Agency shall facilitate and render more effective the application of existing and future Community measures relating to the management of external borders. It shall do so by ensuring the coordination of Member State’s actions in the implementation of those measures, thereby contributing to an efficient, high and uniform level of control on persons and surveillance of the external borders of the Member States.’ As this Regulation constitutes a legislative development of the Schengen acquis, the UK and Ireland do not take part nor are they bound by it. Lately, however, the UK has presented a legal challenge before the European Court of Justice questioning the validity of the legal basis used to frame the Agency, which is primarily Art. 62.2.a EC Treaty.80 Finally, an evaluation report on the External Border Agency, which will 77 The Hague Programme, 2.1. 78 Proposal for Council Framework Decision on the exchange of information under the principle of availability, COM(2005) 490 final, 12.10.2005. 79 Council Regulation 2004/2007/EC establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, of 26 October 2004, OJ L349/1, 25.11.2004. 80 Along with this element, the terms of involvement of Iceland and Norway and the appointment of the executive director are not facilitating the first weeks of life of the Agency, which took up its responsibilities from 1st May 2005. See ‘EU’s border watchdog in prelaunch disarray’, European Voice, Volume 11, number 18, 12-18 May 2005.

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include a review of its tasks and an assessment of whether it should broaden them with other aspects of border management, is foreseen by 2007.81 4.3. Communication of data by carriers Council Directive 2004/82/EC on the obligations of carriers to communicate passenger data was first proposed by the Spanish Government and it was finally agreed on at the Justice and Home Affairs Council meeting of 30 March 2004.82 The Directive aims at improving border controls and tackling irregular migration through the transmission of advance passenger data by carriers to the competent national authorities. In effect, Art. 3 stipulates the kind of information concerning the passengers which will be transmitted and that will include: number and type of travel document used, nationality, full names, date of birth, the border crossing point of entry into the territory of the Member States, code of transport, the initial point of embarkation, the total number of passengers carried on that means of transport as well as the departure and arrival time of the transportation. This data needs to be handed over ‘by the end of check-in or before the flight takes off. Each passenger will be then checked before acceding to the plane using the so-called ‘Advance Passenger Information System’’. The text foresees the possibility of applying sanctions to carriers who transmit false or incomplete data. 4.4. New technologies and biometrics The key concern, in the post-11 September 2001 and post-11 March 2004 political environment, is to strengthen the security of both visas and resident permits issued to third country nationals admitted into the EU territory. To do this, a revision of two legislative initiatives was undertaken. First, a Proposal for a Council Regulation amending Regulation (EC) 1683/95 laying down a uniform format for visas, and second, a Proposal for a Council Regulation amending Regulation (EC) 1030/2002 laying down a uniform format for residence permits for third-country nationals.83 The main idea is that Member States make it clear that they will include biometric identifiers into the standard format of both documents. By biometric identifiers the 81 As explained by the European Commission in the Action Plan implementing the Hague Programme, other aspects of border management could include the evaluation of the functioning of the teams of national experts and the feasibility of a system of European borders guards. 82 Council Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted of 29 April 2004, OJ L304/12, 30.9.2004. 83 Proposal for a Council Regulation amending regulation (EC) 1683/95 laying down a uniform format for visas and regulation (EC) COM(2003) 0558 final-CNS 2003/0218, and the Proposal for Council Regulation (EC) 1030/2002 laying down a uniform format for residence permits for third-country nationals, COM(2003) 0558 final-CNS 2003/0218, 24.09.03.

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proposal specifically means: facial image and fingerprints.84 It should, however, be highlighted that mandatory biometric identifiers are not restricted to travel documents of third country nationals. 4.5. The visa information system The European Council of Thessaloniki on 19 and 20 June 2003 held that ‘a coherent approach is needed in the EU on biometric identifiers or biometric data which would result in harmonized solutions for documents for third country nationals, EU citizens’ passports and information systems (Visa Information System – VIS – and the second generation of the Schengen Information System – SIS II)’. The project of setting up a VIS was agreed on by the Council in June 2002 following recommendations by both the Laeken and Seville European Councils. It is a system for the exchange of visa data between Member States. The main objectives of the VIS are to make it easier to counter the use of fraudulent documents; to improve visa checks; to improve identifications of individuals for the application of provisions in relation to Dublin II and the return procedure; to enhance the administration of the common visa policy; to prevent ‘visa shopping’ by ensuring the traceability of every individual applying for a visa and to strengthen EU internal security. The VIS will comprise two interfaces: a Central Visa Information System (C-VIS) and a National Visa Information System (N-VIS). Unfortunately, nothing is said about how these two elements will work in practice and how they will interact. Logically, it appears likely that the C-VIS will be maintained centrally by the Commission. The N-VIS will be operated by the Member States. The Member States may be obliged through the N-VIS to send all specified information regarding any application for a short stay visa (including biometric information) to the C-VIS, where it is stored. All participating Member States will be entitled to consult the C-VIS (via their N-VIS) when considering a visa application to ensure that the information provided by the individual is correct and consistent with information previously provided. In addition, the European Justice and Home Affairs Council of 19 February 2004 has adopted conclusions on the architecture, functionalities and biometric identifiers to be included in the future European Visa System. All visas and residence permits issued to third country nationals by Member States will contain biometric data about them which can be checked against the C-VIS. The latest element in this evolution is Council Regulation (EC) 2252/2004 of 13 December 2004 which lays down the standards for security features and biometrics in travel documents issued by Member States.85 84 Article 4.a of the proposal states that ‘The uniform format for visa shall contain a facial image, which shall function as interoperable biometric identifier and two fingerprint images of the holder. The fingerprints shall be taken from flat fingers’. 85 According to the Annex of the Commission Communication The Hague Programme: Ten priorities for the next five years – the Partnership for European renewal in the field

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4.6. The Schengen Information System II In its Communication on the development of a common policy on illegal immigration, smuggling and trafficking of human beings,86 the Commission reconfirmed the need to develop the second generation of the Schengen Information System (SIS) to step up the fight against terrorism and transnational crime.87 SIS was built for a maximum of 18 members. The latest round of enlargement thus exceeds its capacity and limits its access by other bodies such as Europol, Eurojust, national judicial authorities and security services. Further, SIS is technically confined to process alphanumerical data and cannot, therefore, hold biometric information such as fingerprints and facial images. Finally, SIS remains control-oriented. In other words, SIS II will not be restricted to a compensatory role of ensuring freedom of movement of persons in the EU. Instead, it serves also to counter terrorism and cross-border crime. The Hague Programme insists that ‘the methods of exchange of information should make full use of the new technology and must be adapted to each type of information, where appropriate, through reciprocal access to or interoperability of national databases, or direct (on-line) access’88. In this context, on 24 May 2005 the Commission proposed a Communication on improved effectiveness, enhanced interoperability and synergies among European databases in the area of JHA.89 The new system is designed to grant access to VIS, SIS II and EURODAC to internal security authorities. The Communication goes further. As there is no database allowing for the identification of disaster victims and unidentified bodies, the Communication proposes to set up: a European register for travel documents and ID cards; and a European Criminal Automated Fingerprints Identification System (EU-AFIS). The following measures are the main developments in the area of security: of Freedom, Security and Justice, the technical implementation of the VIS, starting with the functionalities for processing alphanumeric data and photographs and adding the functionalities for biometric data is expected by 2006. The provisions laid down by this proposal are applicable to United Kingdom, Ireland and Denmark. 86 Commission Communication on the development of a common policy on illegal immigration, smuggling and trafficking of human beings, external borders and the return of illegal residents, COM(2003) 323 final, Brussels, 3.6.2003. See also the Commission Staff Working Paper, Annual Report on the development of a common policy on illegal immigration, smuggling and trafficking of human beings, external borders, and the return of illegal residents, SEC(2004) 1349, Brussels, 25.10.2004. 87 The UK and Ireland are not yet part of the SIS, yet it is expected that the UK will become member by the end of 2005 and Ireland will join shortly after that. 88 The Hague Programme, 2.1. See the Commission Communication on improved effectiveness, enhanced interoperability and synergies among European databases in the area of Justice and Home Affairs, COM(2005) 597, final, Brussels 24.11.2005. 89 Commission Communication on Communication on improved effectiveness, enhanced interoperability and synergies among European databases in the area of Justice and Home Affairs, COM(2005) 597, final, Brussels 24.11.2005.

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• • • •

• •

Council Framework Decision on combating terrorism 2002/475/JHA, 13 June 2002. Council Framework Decision on join investigation team, 2002/465/JHA, 13 June 2002. Council Framework Decision on the execution in the European Union of orders of freezing property or evidence 2003/577/JHA, 22 July 2003. Council Regulation 2004/2007/EC establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, of 26 October 2004, OJ L349/1, 25.11.2004. Council Regulation 2252/2004/EC on standards for security features and biometrics in passports and travel documents issued by Member States, OJ L 385/1, 13.12.2004. Council Common Position 2001/931/CFSP on the application of specific measures to combat terrorism and repeating Common Position 2005/936/ CFSP, 20 March 2006.

5. Strengthening Justice Guaranteeing an effective ‘European Area of Justice’ is recognised as a central element in the agenda of the EU. In line with the philosophy put forward by the Tampere European Council Conclusions (1999), The Hague Programme restates this goal and prioritises the development of closer judicial co-operation in criminal matters. The programme frames judicial co-operation in criminal matters under the heading ‘confidence building and trust’, and stipulates that the enhancement of this cooperation could take place ‘by strengthening mutual trust and by progressive development of a European judicial culture based on diversity of the legal systems of the Member States and unity through European law’. Further, as is clear from the European Commission’s Action Plan implementing The Hague of May 2005, the gradual creation of an EU Area of Justice by ensuring effective access to justice and the mutual recognition of judicial decisions is a key strategic objective for the development of the AFSJ. Judicial co-operation in criminal matters has a short and troubled history in the EU. This field has been subject to a variety of factors which have made harmonisation and policy convergence difficult. In addition to the high level of mistrust existing between the member states’ judicial authorities and each other’s regimes, another element which has made judicial co-operation in criminal matters difficult is the current location of this field in the EU legal framework. As we have explained, with the entry into force of the Treaty of Amsterdam some policies falling within the AFSJ were transferred into the European Community competence under Title IV EC Treaty (EC first pillar). Yet, the fields of police and judicial co-operation in criminal matters mostly remained under the intergovernmental

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forum of the TEU in Title VI and, therefore, inside the narrow EU third pillar framework. The fact that judicial cooperation in criminal matters resides in the third pillar leads to a limited role for the EU, a lack of transparency and efficiency; a high degree of legal complexity, the exclusion of the European Parliament from the decision-making process and a limited jurisdiction of the European Court of Justice over these fields.90 Furthermore, at present, the wide diversity in each of the national legal and judicial systems continues to represent a major obstacle for harmonisation and policy convergence in the field of mutual recognition in the EU dimension of ‘Justice’. In fact, the various difficulties that the Union has encountered in fostering common action are rooted particularly in the national legal system’s differences, the existence of conceptual and juridical inconsistencies and divergences between each of the national legal systems. Some Member States’ authorities seem to have little understanding of each other’s legal and judicial systems and, hence, do not fully trust each other. The picture has become even more blurred along with the enlargement process. This is acknowledged by the Hague Programme, which states that ‘strengthening mutual confidence requires an explicit effort to improve mutual understanding among judicial authorities and different legal systems’. As regards some of the most relevant EU policy developments in the field of judicial co-operation in criminal matters, the European Arrest Warrant (EAW) or ‘Euro-warrant’ is one of the first legal instruments implementing the principle of mutual recognition of decisions in criminal matters formally adopted by the Council.91 At its extraordinary meeting on 21 September 2001, the European Council stated that ‘terrorism is a real challenge to the world and to Europe’ and that the fight against terrorism will be a priority objective of the European Union. Within ten days, the JHA Council agreed on a package of pro-active anti-terrorist and organised crime strategies. This programme of measures was unsurprisingly subject to less controversy and agreed more quickly by EU member states than could have conceivably been the case without the political momentum that arose after the attacks of 11 September. Among the numerous (pro)security policies deemed necessary to implement the EU Strategy for the Beginning of the New Millennium on organised crime – such as terrorism, money laundering, drug trafficking, smuggling, illegal immigration and the trafficking of human beings – the Council reached political agreement on the EAW, which was formally adopted in June 2002. The EAW provides us with yet another good example of where ‘security’ conquers ‘justice’. While even before the events of 11 September 2001 co-operation 90 See Opinion of the European Economic and Social Committee, Commission Communication, 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, SOC/209, Brussels, 15 December 2005, point 4.3.5. 91 Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, Official Journal L 190, 18.07.2002.

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on criminal justice was already rapidly growing,92 these and subsequent dramatic events provided the perfect justification to adopt ‘as a matter of urgency’ and as fast as possible security tools such as the EAW. The achievement of the fundamental goal enshrined in the EU third pillar, i.e. ‘high level of safety’, considered to be a public good for all citizens and one of the major components of the AFSJ, has indeed acquired a prominent role as a policy priority in political discourse. A decisive boost for the development of some JHA security initiatives such as the ‘Euro-warrant’ may be found in the political consensus to establish a genuine ‘EU security strategy’ or security roadmap to fight everything broadly falling within the so-called ‘internal and external threats to our European societies’.93 In this light, then, instruments such as the EAW were conceived as helping to tackle the imminent new threats and forms of violence that Europe is said to be facing. Whether this is really the case is open to discussion. The EAW seeks to abolish the traditional extradition procedures between member states and replace them with a system of surrender between judicial authorities for acts categorised as serious offences, without the need to control ‘the principle of double criminality’, which means that the suspected crime need not be considered punishable in both the issuing and the executing state. The EAW intends, then, to overcome existing national frontiers in judicial matters, which may at times undermine the cornerstone of judicial co-operation (i.e. the principle of mutual recognition) by establishing a surrender system based on a process that is completely controlled by the judiciary. It therefore sets aside the political aspect which is part and parcel of the traditional extradition system. Its main purpose is thus to simplify as well as speed up the surrender procedures, avoiding the delays which occurs under the EU’s current extradition system. Overall, concerns have been raised about the existing legal loopholes for the effective functioning of the EAW, suggesting that it is too premature and overoptimistic as a legal instrument, and that in terms of its practical operability, it may be ‘trying to run before it can walk’.94 Others have argued that the principle of double criminality and the ban on extradition of nationals should not have been abolished.95 92 M. Jimeno-Bulnes (2004), ‘After September 11th: the Fight Againts Terrorism in National and European Law. Substantive and Procedural Rules: Some Examples’, European Law Journal, Vol. 10, No. 2, March 2004, pp. 235-53. 93 J. Solana (2003), A Secure Europe in a Better World, European Security Strategy, submitted to the European Council, Brussels, 11-12 December. 94 S. Alegre and M. Leaf (2003), ‘European Arrest Warrant: A solution ahead of its time?’, JUSTICE, London, November. 95 Peers has expressed that the abolition of the dual criminality rule runs a risk of challenges to the legitimacy of the EU’s criminal law measures in the national courts and public opinion; he therefore argues instead that an ‘alternative approach’ acknowledging the differences of the criminal law legal systems should be preferred. S. Peers (2004), ‘Mutual Recognition and Criminal Law in the European Union: Has the Council got it wrong?, Common Market Law Review 41, 2004, pp. 5-36

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After its entry into force on 1 January 2004, the implementation phase of this judicial tool has once again shown the ongoing lack of mutual confidence about member states’ intentions and respective judicial and legal systems.96 While in the opinion of the European Commission the EAW was fully implemented in all EU Member States as from May 2005, the deep difficulties that beset the implementation processes at the national level have substantially undermined the efficiency and credibility of the EAW.97 The legal challenge brought by Germany and Poland before their respective Constitutional Courts questioning its compatibility with their constitutional legal settings also gives more weight to that argument. On 18 July 2005 the Federal Constitutional Court of Germany ruled the act implementing the EAW into German law as void. This judgement means that it is necessary a rethink the pillars of European co-operation in the Area of Freedom, Security and Justice.98 The Hague Programme calls for the completion of the ‘comprehensive programme of measures to implement the principle of mutual recognition of judicial decisions in criminal matters’. It continues: ‘the further realisation of mutual recognition as the cornerstone of judicial cooperation implies the development of equivalent standards for procedural rights in criminal proceedings’. Despite the direct impact of the EAW in the status of the individual, four years after its formal adoption there is still no parallel juridical framework protecting the rights of suspects and defendants in criminal proceedings in the EU. Indeed, the development of the principle of mutual recognition in criminal law needs to be complemented by a framework guaranteeing some sort of EU wide common standards of procedures in the legal processes for which mutual recognition will be claimed. Such approximation of laws is necessary in order to protect the set of rights of the individuals involved.99 Moreover, one of the stated objectives of the Hague Programme is ‘access to justice’. It stresses that 96 The Commission has evaluated the implementation of the Framework decision in a report issued on the 23.2.2005. See Report from the European Commission based on Article 34 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, COM (2005) 63, 2005/267 (SEC), Brussels, 23.2.2005. 97 T. Balzacq and S. Carrera (2005), The EU’ Fight against International Terrorism: Security Problems, Insecure Solutions, Policy Brief No. 80, Centre for European Policy Studies, CEPS, Brussels, July 2005. 98 Judgement of 18 July 2005, 2 BvR 2236/04, Bundesverfassungsgericht, which states ‘The European Arrest Warrant Act infringes the guarantee of recourse to a court (Art. 19.4 of the Basic Law) because there is no possibility of challenging the judicial decisions that grant extradition’. See also Judgement of the Polish Constitutional Tribunal concerning the European Arrest Warrant, 27 April 2005, P1/05, which ruled that ‘Article 607 § 1 of the Criminal Procedure Code, insofar as it permits the surrendering of a Polish citizen to another Member State of the European Union on the basis of the European Arrest Warrant, does not conform to Article 55(1) of the Constitution’. 99 See House of Lords, European Union Committee, The Hague Programme: A Five Year Agenda for EU Justice and Home Affairs, 10th Report of Session 2004-2005, Report with Evidence, Published by the Authority of the House of Lords, HL Paper 84, 23 March 2005, Chapter 8: Criminal Law, point 40.

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an individual has no rights without access to justice. Where a common framework of criminal justice is being put in place, the fundamental rights of the individual must be safeguarded by due access to justice.100 This partly explains why the European Commission presented a Proposal for a Council Framework Decision on certain procedural rights in criminal proceedings around the European Union 2004/328.101 The initiative generally aims at laying down ‘rules concerning procedural rights applying in all proceedings taking place within the European Union aiming to establish the guilt or innocence of a person suspected of having committed a criminal offence, or to decide on the outcome following a guilty plea in respect of a criminal charge. It also includes any appeal from these proceedings’.102 The future of this legislative proposal inside the Council of Minister is not very promising. In the near future we will find out whether the European Commission finally manages to transmit the message about the added value and legal basis of this measure in an EU of 25 Member States. Among other policy initiatives that have been put forward by the European Commission in the complex puzzle that constitutes the ‘European Area of Justice’,103 we underline the proposal for a Council Framework Decision on the European Evidence Warrant (EEW),104 which would provide the option for Member States’ competent authorities to issue a judicial decision (EEW) with a view to obtaining already existing objects, documents and data for use as evidence in criminal proceedings. The Hague Programme also underlines the importance of the ECJ in the development of the AFSJ in the section ‘Strengthening Justice’. Actually, the status of the ECJ in judicial co-operation in criminal matters has experienced a huge constitutional transformation in the relationship between the first and the third pillars and the area of criminal law/justice. Judicial control over executive action in the AFSJ is critical to the protection of civil liberties and fundamental rights, as well as the rule of law. The increasing role of the ECJ and the consequent judicialisation process of co-operation in criminal matters will also dramatically change the EU 100 See CHALLENGE, A Response to the Hague Programme: Protecting the Rule of Law and Fundamental Rights in the Next Five Years of an EU Area of Freedom, Security and Justice, retrievable from www.libertysecurity.org. 101 Proposal for a Council Framework Decision on certain procedural rights in criminal proceedings throughout the European Union, COM(2004) 328, 2004/0113 (CNS), Brussels, 28.4.2004. 102 See Art. 1 of the proposal. 103 See among others, the White Paper on exchanges of information on convictions and the effect of such convictions in the European Union, Com(2005) 10 final, 2005/63 (SEC), Brussels, 25.1.2005; See also the Proposal for a Council Decision on the exchange of information extracted from the criminal record, COM(2004)664 final, 2004/0238 (CNS), Brussels, 13.10.2004. 104 Proposal for a Council Framework Decision on the European Evidence Warrant for obtaining objects, documents and data for use in proceedings in criminal matters, COM(2003) 0668 final, 2003/0270 (CNS), Brussels, 14 November 2003.

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institutional scenario. There is evidence of this for example in paragraph 48 of the Case C-176/03, Commission v. Council of 13 September 2005. In this case the ECJ was asked to strike down a Framework Decision which required Member States to create criminal sanctions for the failure to respect environmental rules whose norms are included in a first pillar measure. The importance of the role of the ECJ in building an AFSJ has been also underlined by the Hague Programme. The ECJ has been also of fundamental importance in the Case C-105/03 Pupino of 16 June 2005, where, among other relevant aspects, the Court recognized direct effect for Framework Decisions.105 6. Structure of the Volume This book explores, clarifies and expands on the main tenets of the Hague Programme. It consists of three parts and sixteen chapters. The book looks at issues thematically (Freedom, Security, Justice), and brings together analyses and criticisms made by academics along with more technical but down-to-earth explanations by policymakers (especially in the case of the European Borders regime). The fields of academia and policy-making are very often separated. In sensitive and complex issues such as those related to ‘Freedom, Security and Justice’, it is however necessary to bring both approaches and visions together under the same umbrella to have a fuller picture and a comprehensive understanding of the issues at stake. In this sense, for a book that aims to establish a dialogue between academia and policy-making, it is a challenging yet potentially rewarding endeavour to integrate views from both ‘worlds’.106 One set of chapters is therefore policy-oriented (chapters 2, 5, 9, 13 and 16), another set represents academic studies (chapters 1, 4, 6, 8, 12, 14 and 15), and a third group of chapters tries to integrate both approaches (chapters 3, 7 and 10). Part One, ‘Freedom’, brings together contributions that address the issues which bear on fundamental rights, freedom of movement and residence in the EU. Chapter 2 represents a policy-oriented conceptual framework. Didier Bigo traces the many meanings of freedom in the Hague Programme and outlines the submission of liberty and justice to the rhetoric of security. The following chapters study the consequences of this situation on two central policies of the EU: asylum and migration. Chapter 3 provides a map of EU policies in the field of asylum. Madeline Garlick discusses five major instruments that aim to reconfigure the EU asylum landscape, namely: the temporary protection Directive, the reception conditions Directive, the Dublin II 105 In paragraph 38 of that crucial ruling, the ECJ stated that its ‘jurisdiction would be deprived of most of its useful effect if individuals were not entitled to invoke framework decisions in order to obtain a conforming interpretation of national law before the courts of the Member States’. 106 The benefits of such an approach have been aptly sketched by Christopher Hill and Pamela Beshoff, Two Worlds of International Relations: Academics, Practitioners and the Trade in Ideas (London: Routledge, 1994).

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regulation, the qualification Directive and the asylum procedures Directive. For each instrument, Madeline Garlick presents the content, highlights the added value and examines the effects of their weaknesses on the protection of the asylum applicant. Finally, the chapter offers policy prescriptions in order to bring EU instruments up to the Geneva Conventions standards. Chapter 4 develops the ideas set up in chapters 2 and 3. It argues that the need for absolute security is transforming EU asylum policy in radical ways. It decouples the body of the asylum from his/her legal responsibility. Elspeth Guild, who shares Didier Bigo’s analysis of the concept of freedom, posits that the implementation of EURODAC for instance is affecting the fundamental rights of the asylum seeker as the latter may be living in a country different from his or her point of entry, i.e. the Member State responsible for examining an asylum application lodged in one Member State by a third country national. In chapter 5, Nicholas Sitaropoulos assesses the compatibility of EU immigration acquis with international and European human rights law. He starts with the assertion that EU immigration acquis is organised around three axes: admission, the fight against illegal migration, return and readmission policy. Using EU provisions on family reunification and third country national long-term residence as case studies, Sitaropoulos shows how the prominence of security leads EU to contravene fundamental international and human rights principles. The Directive on family reunification and the one on long-term residents are also touched upon in Chapter 6. Sergio Carrera demonstrates how mandatory integration is increasingly becoming ‘the norm’ in the EU. In order to investigate the consequences of the connection between immigration and integration, Carrera compares nine integration schemes: Austria, Belgium, Denmark, France, Germany, Poland, Spain, the Netherlands and the United Kingdom. The chapter discusses two practices: One, the discursive description of migrants as a threat; and, following on from this, the growing number of human rights abuses. Taken together, these practices produce, accordingly to Carrera, the opposite effects sought by mandatory integration programmes, i.e. ‘societal in-cohesion’. In addition to tussles between Member States and the EU over competence in particular areas, this chapter analyses competing claims on integration that pit the ‘soft policy’ approach – common basic principles – against the ‘hard policy’ view – actual legal acts generated by a common migration policy. Part Two, ‘Security’, is the heart of the Hague Programme. The book seeks to reflect this. Chapter 7 looks at the Hague Programme from the point of view of the Treaty of Prüm signed by seven Member States on 27 May 2005. Thierry Balzacq, Didier Bigo, Sergio Carrera and Elspeth Guild analyse the rationale, method and instruments of the Treaty. By doing so, they connect this chapter back to the concerns raised in Part One, i.e. on competition between Member States and the EU level. It is argued here that the Treaty of Prüm may undermine the EU area of security because, for instance, it challenges one of the key instruments of the Hague Programme – the principle of availability – that aimed at harmonising and speeding up the exchange of information among EU Member States. Chapter 8 explores how the exchange of information and biometric identifiers are increasingly regarded as essential tools in the management of EU external borders. Evelien Brouwer focuses on the analysis

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of the content, purposes and effects of the Schengen Information System II (SIS II), the Visa Information System (VIS) and EURODAC. She then goes on to discuss the development of the interoperability among these databases and raises the danger to privacy and human rights this poses. Chapter 9 and 10 examine the changing context of the EU’s management of its borders. In Chapter 9, Peter Hobbing deals with the concept of Integrated Border Management (IBM) and highlights the contribution of the Hague Programme to the emergence of a legal, financial and operational framework of border management (e.g. the creation of the European Border Agency, Proposal for a European Border Code, Proposal for a regime of Local Border Traffic). Chapter 10 sheds light on the institutional and political struggles that underpin the management of borders in the EU. It analysis the role of Member States and different EU institutions (e.g. the Commission, the Council, the European Parliament). Laura Corrado outlines the impact of visa policy on the management of borders and the challenges new Member States face in this sector. The chapter argues that the EU management of borders should try as much as possible to strike a balance between control and openness in order to strengthen its effectiveness and credibility inside and outside the EU. Chapter 11 broadens our understanding of the stakes involved in the management of borders. Karen Smith examines the European Neighbourhood Policy (ENP) as a new EU tool to create a ring of friends that will filter the flow of people. Karen Smith points out and assesses the political effects of the ambiguity – inclusion or exclusion – that besets ENP. Moreover, this chapter epitomises the overlap between JHA and EU Common Foreign and Security Policy (CFSP). Indeed, Karen Smith develops the argument that one of the main political objectives of ENP is not only to fight against terrorism and non-proliferation of weapons of mass destruction, but also to ensure international justice, the respect of specific human rights and democratic principles. Chapters 12 and 13 shift our attention to the legal and political consequences of the crisis over the Constitutional Treaty. In Chapter 12, Sergio Carrera and Elspeth Guild concentrate on the area of Freedom, Security and Justice, whereas in chapter 13 Udo Diedrichs and Funda Tekin focus on CFSP. Both contributions argue that despite obvious weaknesses, JHA and CFSP would be better off with the Constitutional Treaty. Part Three, ‘Justice’, develops the insights from Part Two on border management. The contributions for this section focus on the implications of trust in building cross-border judicial cooperation. Chapter 14 highlights the paradox that underpins the EU’s attempt at enhancing operational efficacy and effectiveness in order to promote ejudicial cooperation. In the Justice, Freedom and Security sphere, crossborder cooperation is based on the following principles: transparency, subsidiarity, proportionality and equivalence. Juliet Lodge concentrates on transparency because it is a tough case for the EU. Indeed, transparency is extremely difficult to account for in the context of cross-border cooperation involving multiple agents, with different purposes and ends. She then questions approaches that assess transparency against criteria of administrative efficiency and operational effectiveness. Here, Juliet Lodge bases her argument on factors of public mistrust towards governments such as the absence of effective political accountability and democratic controls to prevent the

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abuse of power and authority in cyber-space. This chapter concludes by suggesting that practices and instruments to facilitate police and judicial co-operation in cyberspace must be made subject to a ‘common operating code’. The problem, however, is that Member States are sceptical towards a ‘common operating code’ because they believe that it will undermine their sovereignty. In this light, chapter 15 shows that Member States are prone to establish a framework on mutual recognition of judicial decision, instead of embarking on the approximation of criminal laws. Valsamis Mitsilegas argues that this strategy is often used because it enables Member States to minimise the ‘risk’ that they perceive in common standards. More recently, however, the EU has adopted new measures, the effect of which is to enhance trust in the criminal justice systems of other Member States. Mitsilegas analyses the Framework Decision on the rights of the defendant in order to assess the extent to which it mitigates mistrust among Member States. The main idea is that there is no clear yardstick to judge whether this advances trust among Member States. What happens instead is a gradual disjunction between the requirements for harmonisation and the dominant principles of mutual recognition. Chapter 16 provides a conclusion to the book by offering a set of policy recommendations related to Freedom, Security and Justice in the EU.

FREEDOM

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Chapter 2

Liberty, whose Liberty? The Hague Programme and the Conception of Freedom Didier Bigo

1. Introduction: Security is Justice, is Freedom The text of the Hague Programme is a thirty-three page document comprising an introduction, general orientations (paragraphs 2 to 6) and specific orientations (paragraphs 7 to 33). The latter are divided into three parts that cover the following aspects: strengthening freedom (paragraphs 7 to 17), strengthening security (paragraphs 18 to 26) and strengthening justice (paragraphs 27 to 32); there is an additional page on external relations. There is an equilibrium that is set in train in the latter part through the use of the term ‘strengthening’ in each of its three sections. The section on ‘Freedom’, if we are to go by its greater length and place (first of the three), nevertheless seems to be given the most importance, and serves to content and reassure us that the overall programme succeeds in strengthening the three most important values of democracy - freedom, security, and justice. A closer look at the programme, however, disturbs the reader, as if something between the text and the equilibrium between the titles did not quite add up. The unease appears to come from the fact that the second section on security has infiltrated and contaminated the other two on freedom and justice. If I were to jump immediately to the conclusion of my argument, I would suggest saying that we need to adapt the titles to their actual content by renaming the three parts: 1. strengthening security, 2. strengthening security, 3. strengthening security. To support my argument I will first discuss some excerpts from the Hague programme concerning strengthening freedom, then in I will return to the relations between the concepts of liberty and security at the heart of our democracies. Lastly, I will argue for the need to have a serious political discussion about the relation between freedom, security, justice and danger, instead of this redefinition of freedom as a form of surveillance and control in the name of protection and personal safety. 2. The Hague Programme: Strengthening Freedom Freedom is understood in the Hague programme under the notions of fundamental rights and freedom of movement and residence of citizens of the Union in ‘their’

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area. Therefore, freedom is mainly reduced to an equal treatment between citizens of national states abroad as long as they are within the European Union area. In the Hague programme, freedom is mainly freedom of movement inside an area1. But what is perhaps more interesting is that after the point 1.1 on citizenship of the Union, all the other paragraphs of this first part concerning freedom are about limits, interdictions, policing at a distance, controlling by remote control and even detaining and punishing others at a distance. The proper notion of an active defence of freedom is distorted into a war for a kind of freedom – war against threat and fear where freedom is seen as a right to be protected by the state(s) and not a capacity to act. This rendering of freedom may contradict freedom. Each form of freedom is then defined by its limits and its antagonism with other freedoms and freedom of others. Liberty as a unified and generic concept has no place. This strengthening of surveillance under the name of freedom is the general understanding of the points concerning asylum, migration and border policy (1.2), of applications for asylum outside of the EU (1.3), of integration of third country nationals inside (1.5), of tackling the problem of return and justification of detention of foreigners in the name of the protection of our freedom (1.6 and 1.7). It is the reason why our freedom depends on the severity of other states, especially, but not only, neighbouring states whose populations wish to leave their own country. Our freedom supposes more controls at the borders and more suspicion against tourism of the poor. Tourism as the freedom to move is for the rich but the poor are by definition a threat against the order as they are supposed to want to stay in a host state in order to profit from social benefits. Moreover, they are also a threat against legality because they are suspected of trying to stay fraudulently. So it is by a very specific logic, which is not incoherent at all but which is highly perverse, that all the measures of coercion against others are in the first section of the second part entitled ‘strengthening freedom’. In the Hague programme the strengthening of freedom results in the sending back, either on a voluntary or compulsory basis, undocumented migrants (1.7.1). Its stance of intransigence and firmness against others, such as the will to control and close off the Mediterranean sea area by police and military means has created despair and death of these others without, ultimately, creating any effective ‘wall’ or ‘fortress’. Freedom, in the Hague programme, is seen as the creation of a ‘safe area without intruders’. Freedom is a tool for maximising security. Re-conceptualized in that way, the programme’s notion of ‘strengthening freedom’ is the result of a kind of 1 Following sociologists such as Z. Bauman, I have elsewhere explained that this freedom of movement can also be read as an imperative to move, as a normative impulse or desire to move. I have spoken of the ‘ban-optical’ way of reconfiguring freedom under a governmentality of management of fear, and a general development of the mutual trust between the authorities both inside and outside at the cost of the mutual distrust of their own populations which live their situation as a Ban(ishment) even inside and even if they do not move. D. Bigo, ‘Global (in)security: the field of the professionals of unease management and the Ban-opticon’, Traces, A Multilingual Series of Cultural Theory, 4 (2005).

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‘homeland security’ strategy which wants first to build an electronic wall at the borders, in line with a hegemonic discourse of ‘not welcoming the foreigner’. The hope is to deter those that are not rich enough to consume. A second objective of strengthening freedom is to police the economically disadvantaged with the help of their governments. Their freedom is not important. The notion of freedom is reconfigured to develop control and surveillance of people at the external borders and through visas in their own country (not as a security measure but, remember, as a ‘freedom’ measure 1.7.1 and 1.7.3) , and to develop biometrics and information systems (1.7.2) by ‘establishing a continuum of security measures that effectively links visa application procedures and entry and exit at external border crossings’, by developing and linking the different data bases of police activities, of customs, of border guards, of immigration services, of intelligence services through transversal identifiers which can connect them (biometrics or traditional names and addresses) and even open the possibility for intelligence services to use them for data mining and elaboration of profiles for future dangerous criminals. The influence of a neo-conservative agenda, that reframes liberty by distorting the concept in the name of the defence of an ‘essentialized’ us under threat by unknown others, is unfortunately obvious2, but it is not the result of September 11. It has its own roots in Europe with the Palma document of 1988, which set up this agenda long before the US, and with Schengen, Trevi, the ad hoc immigration group, and the Bern and Vienna clubs. The agenda was reinforced after the anti globalization protest of Genoa and September 11 2001 with Seville and Thessaloniki.3 This European agenda is a lighter handed version of the US homeland security strategy with more considerations concerning the dignity of the ‘others’, their humane conditions and with less antagonism. The martial path is not so direct. It is not a ‘Venusian’ route or a ‘peaceful and weak way ‘ as Kagan has tried to coin it out, but an ‘Hermes’ or a ‘communication, control and surveillance’ path, a kind of soft hegemony where the authorities of the others have to be convinced to participate4. It is one of the most interesting aspect of the philosophy of the Hague programme concerning freedom that it is not a copy of the neo-conservative US vision; it is this original model that the US neo-conservative agenda copies now in the second mandate of Bush which appears to place much emphasis on freedom, and fighting for freedom, than on security. In both of these approaches we have such a reversal of what freedom is; the paradox in the Hague programme text is the obligation to

2 It looks like the novlangue of G. Orwell’s novel, 1984, where Peace is used for designating War. 3 ‘De Tampere a Séville: bilan de la sécurité européenne’, Cultures et Conflits, 45, (2002): 5-143. 4 R. Kagan, Of Paradise and Power: America and Europe in The New World Order. (New York, 2003). R. Kagan and C. W. Maynes, ‘The Benevolent Empire’, Foreign Policy, 111 (1998): 24.

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protect the fundamental rights of individuals from a proper search to strengthen freedom! How was it possible to develop a concept of freedom that has become more dangerous for fundamental rights of individuals than even traditional security measures? When, how and why has the move of (un)freedom, where detention, punishment and death are the logical outcome of this version of freedom, taken place? I will not develop this research about the transformation of the notion of freedom and its relation to security, danger and justice. I just want to emphasize that just as security has to be understood as a process of securitization / insecuritization / desecuritization, so has freedom to be understood as a process of freedomization / unfreedomization and defreedomization. And these two processes are intertwined. They vary depending on the social construction of their positive or negative connotations and on their relations to violence and materiality. They vary depending on what one has in mind when speaking of securitising the national state, the individual, humanity and environment, or guarantying rights, giving hospitality without counterpart, accepting a social net for everyone. They vary also depending of what one has in mind when speaking of freedom. Is it freedom from threat by a group which feels in danger? Is it individual freedom? Is it liberty (and not freedom) as the essence of humanity which is curved and reversed by the will-to-serve as la Boetie has analysed? Is freedom a relational concept which can be moved and transformed by its interaction with security, danger and justice? The questions are still unanswered and perhaps they have to be left unanswered, and we have to live with this uncertainty about the limits of our freedom and against the illiberal dream to secure absolutely an area of freedom. 3. The Relations between Freedom, Security, Justice and Danger: From the Scales to the Ruler 3.1. Coming back to the basics: the transformation of the meanings of freedom and security in liberal democracies and the move towards illiberal thoughts and practices Freedom, security and the relation between the two concepts can be analysed along different lines of thought. At least six ways to conceptualize the relations exist. So, the idea of a straightforward balance between liberty and security is distorted by the fact that some conceptualizations do not recognize the autonomy of the two scales, that others place from the very beginning a different weight on each scale by framing a principle and an exception. If a metaphor has to be chosen it is one of a ruler with six sections.

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1. Freedom is the only principle with no limits (the anarchist approach). 2. Freedom may be considered as the principle, and security as the exception. In that sense security is a way to regulate interaction between freedoms and the risk of anarchy. Security is limited and is considered as the limit between freedoms in interactions (the libertarian view). 3. Security could be analysed as the freedom of the individual under the name of safety. A hierarchy exists which is less an opposition than what Louis Dumont calls the englobement of the opposite. Freedom encompasses security (the constitutionalist view). 4. Security may be considered as the first freedom as it is linked with survival and death. No freedom is possible if you are dead or at risk of being killed. It may be the survival of the collectivity or of individual survival. A double hierarchy is created, first between security as the most important freedom, second between individual and state. The survival of the state as a collectivity may imply the death of the individual. The security of a large group may imply the death of some others and even part of an ‘us’. Freedoms exist only after security is ensured, but they are the central values of life. Freedom exists under necessity. Security is linked with capacity of coercion to stop or to contain the individual freedom of violence. Security encompasses freedom at the beginning, but not after (‘the exceptionalist view’). 5. Security is considered as a collective common good and as the first freedom because life exists only if survival exists. Security is a right and a freedom because it is the way to prevent danger and violence. Freedoms as practices are residual. They are the exception, even if freedom as discourse is emphasized. Security at risk is obliged to re-enact the moment of origin and to suspend freedoms momentarily. Then security becomes the principle, and freedom the exception. Security needs to be unlimited to avoid danger and even fears to be at risk and so is independent of the probability that the danger occurs. Security is ‘our’ security and could imply an ‘unfreedomization’ of others, the suspension of their rights, but always in the name of more freedom (the permanent emergency view). 6. Security is the only principle with no limits. Democracy is weakness. Order and obedience are better values than freedom (the fascist view). Except for the two most extremes cases above, freedom and security are in relation but they don’t have the same weight and are not like two equal scales in a balance. Often they are in a hierarchical relation and not an equal one. So the metaphor of balancing liberty and security needs to be discussed in more depth. 3.2. ‘Balancing liberty and security?’ beyond the metaphor As we have seen security sometimes has a pejorative and sometimes a positive connotation, against freedom. It depends on the hierarchy of values a community shares. But the situation is complicated by another factor. It is not only a relation

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between two concepts. Security and freedom are themselves related to danger and justice. In relation to danger, security traditionally has a positive connotation. Danger is linked with the materiality of the world and the possibility that death or accident occur, voluntarily or not. The virtuality of danger is always there as the French Galois know so well with the possibility that ‘the sky fell on their head’. But the actuality of danger is dependent on the probability of this event occurring and it supposes a reflexivity of human beings concerning risk and their possibility to anticipate a certain kind of future as well as the possibility (or not) to act in the present to change it.5 Where risk is socially constructed as the probability of an event to occur it may be seen, depending on the cultural context, as a risk of danger, as an opportunity to exercise freedom or as a fate. When related to an open and recognized form of violence, and especially when related to the will of human beings to perpetrate violence, security is considered not only as the diminution of insecurity but also as a protection against violence. Security is more than re-assurance, comforting words and a sense of safety.6 Security is effective when the occurrence of the danger to become real tends to zero. In this context it is rare that people ask about the relation between security and insecurity and discuss the possibility that more security does not diminish insecurity but on the contrary develops the virtuality of the insecurities (as the awareness to be in danger and to consider it as a danger). But security, in its relation to freedom may be considered differently in relation to danger. A society without danger (insecurity) does not exist, and some dangers are part of life. Many events, even some related to violence, may be considered as forms of opportunities and consequences of freedom of choice when choice exists to anticipate the future and modify the foreseen consequences. The more the above is publicly acknowledged by the libertarian view, the more securitarian views refuse to discuss the complex relation of freedom and violence. Does the acknowledgment of some element of danger in life render security the contrary to insecurity? We cannot be certain. Security is more like an expanding envelope and insecurity is the environment in contact with this sphere, so the two phenomena expand at the same moment. More security may create more insecurity. Security may have a negative connotation to freedom but also to danger. Security is not always a ‘good thing’ to ‘maximize’. The balance between the two concepts is then made more complex by the triptych of relations between danger, security and freedom. In liberal democratic society, very often security has a positive connotation 5 J. P. Dupuy, Pour un catastrophisme éclairé, (Paris, 2002). 6 For an analysis of the two different elements of securing (reassurance and protection, see D. Bigo, ‘Reassuring and Protecting: Internal Security Implications of French Participation in the Coalition Against Terrorism’, in S. S. R. C. E. Hershberg and K. W. Moore (eds), Critical Views of September 11. Analysis From Around the World, (New York, 2002). J. Delumeau, Rassurer et protéger: le sentiment de sécurité dans l’Occident d’autrefois, (Paris, 1989).

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against danger and a negative connotation against freedom, but the discourse is changing both ways in a risk society and the weight given to the danger/security nexus may be more important than the security/freedom nexus and the vectorization or polarization of positive and negative are not fixed. To this triptych, the concept of justice is added and it forms a fourth element of the matrix. I have no time to develop here this important point, except for a brief remark. Of what kind of justice are we speaking? Justice seems to be, in the context of the Hague programme, not an ideal solution related to equity and equality, but to the capacity to enforce with legitimacy the use of coercion. Security and justice are strongly related; freedom is seen as an object or a goal to be preserved but not as an active principle and a mean. Justice is securitized and is no more about legitimacy. Justice is about order and not about ameliorating uncertainty and upholding democracy. Justice is seen through the eyes of the prosecutor and the judges of instruction. Justice is seen through the eyes of the police and the accusers. The place for serene justice, for dispassionate justice, has disappeared in the name of speeding up the process, of emergency, of the ‘rights’ of victims to see punishment, and in the name of a better and more efficient collaboration between police and the instruction process. In this view justice is a way to help security by providing a quick punishment. 4. Illiberal Rhetoric: Freedom as Surveillance and Control in the Name of Protection and Safety The terms freedom and justice exist then in the Hague Programme but their meanings are reconfigured as lower values in the name of the priority of security and, ultimately, the concept of freedom is profoundly changed. The term freedom indicates the practices of surveillance and control in the name of protection and safety against danger and violence. The liberal views which were located in cursors 2 and 3 are now moving to cursors 4 and 5 which are illiberal. In these two cursors, freedom is seen through the eyes of police, intelligence services, customs and immigration agencies and all the other professional bodies of management of fear and unease. Freedom is reduced to a place to be protected and a place under threat. It is also a way to say that, if strengthening freedom is strengthening the borders against threats by others, then strengthening freedom is the task of the authorities to secure a place, to protect, monitor and supervise the people inside and the people on the move. ‘Strengthening’ freedom is then strengthening the conduct of lives of the people. Freedom is reduced to an area and subordinated to the relation with security and danger coming from both outside and inside. Freedom is an exceptional possibility which needs to be firmly protected, and which is the privilege of the citizen of this area. Because this freedom is endangered by the actions of others, it has to be secured, even if it could imply an ‘unfreedomization’ of others through the momentary suspension of their rights. In that view, strengthening our freedom is an action to

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stop and limit the freedom of others. It is a way to reaffirm that ‘society must be defended’, depicted by Foucault as the tendency of liberalism at its limits or as illiberalism7. Moreover, illiberalism begins with two confusions; the first is the idea that security is a liberty and the first liberty; the second is that the personal safety of an individual (and of all of them) is the collective security, and as such, state security. The ‘nothing to hide from the police’ argument often used to curtail freedom of persons and to enhance more control and surveillance is playing with the two confusions. In the name of protection and right of the person to live, it is asked to be totally transparent as if the danger to be the target of violence of bombings eliminates the danger to be the target of intrusive and coercive measures, but the two dangers coexist and even reinforce each other in a dynamic and escalation of provocationrepression cycle. Furthermore, differentiating inside a population the good guys and the bad guys supposes an ideal citizen and an ideal police force. But it is far from the social practices and real behaviour of police and intelligence services, especially when dealing with foreigners. Criminologists have shown that, even in a democracy, police and intelligence services will not always find what they are looking for, but they will find something on some one after an extensive search. So they can use it, even if it is not an important fact, to put you under pressure and to reduce your autonomy. Privacy is essential for that reason, and it could be considered as the right ‘not to be transparent’. That is why the police cannot be judge of bad and good, legal and illegal especially within a context of proliferation of laws delimiting illegalities8. An ‘urban eye’ looking at everybody and everywhere to anticipate future behaviour is definitely not an image of freedom, even if it protects from some dangers, or enables the perpetrators of violence to be found after the act. It is worth remembering that the argument for transparency towards the police and the argument of preventive action have been used, historically, in periods of crisis and have always profoundly damaged the freedom and civil liberties of all persons living in the place of application. This includes those who call for this transparency and for greater police presence. Europe in the thirties and Latin America in the seventies have experimented with the effects of this confusion between freedom and security in the name of the right to be protected from an external or internal threat. So, each time a government uses the argument that the real fundamental right of people is to live in a secure environment and that it is in the name of a personal safety that the government has to protect us, we know that the civil liberties and fundamental rights of the individual recognized by law and judges are in danger (because of the state activity).

7 M. Foucault, M. Bertani, A. Fontana, F. Ewald, and D. Macey. Society Must be Defended: Lectures at the Collège de France, 1975-76, 1st ed. (New York, 2003). 8 The policeman as ‘street corner politician with a uniform’ cannot be judge of bad and good. He has not a universal ethics and chooses what he will sanction and what he will not sanction.

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The argument for ‘Raison d’Etat – or nowadays the shared Raison of the governments at the EU (or transatlantic) level’ – is often hidden behind the semantic of national or collective security and its promoters try to confuse people by hijacking the characteristic of rights of their personal safety and to confer it to the secret services seen as the protectors (and not a danger) for the individuals. But, security (of the state) is not freedom and is definitely not a fundamental right. Only personal safety may be considered as such Of course, the paradox is that in periods of crisis and large scale bombings, part of the population want to actively forget about the danger of Raison d’Etat and demand it as a measure against the immediate danger. After a while, if no other bombing occurs, they return to their anxiety concerning the rise of a coercive state. But, the Rule of Law has to protect us against these fluctuations linked to fear and populism. The government does not have the right to play with the fear of the population by arguing that the feeling of insecurity of a part of the population (without effective protection) justifies the curtailment of the fundamental rights of another part of the population (or of all the population)9. To provide reassurance to some is not an excuse for changing the laws protecting liberty10. The effectiveness of the action of protection needs to be proven, to be proportionate if it curtails rights, and needs to be legitimately accepted. Derogations cannot be general and are impossible with the fundamental rights protected by the Jus Cogens.11 This temporal balance linked to the fears of the population is also problematic when governments ask for a permanent state of emergency in the name of a permanent war on Terror, especially when this permanent state of emergency is backed by a refusal of any political consideration of grievances, and makes demands for the eradication for the enemy12. The cursor is always upgraded after each bombing towards more surveillance in the name of security and freedom and justice, but this process is one of a constant escalation of violence and not one of obtaining better security.

9 D. Cole, Enemy Aliens. Double Standards and Constitutional Freedoms in the War on Terrorism. (New York, London, 2003). D. Cole and J. X. Dempsey, Terrorism and the Constitution: sacrificing civil liberties in the name of national security, 2nd ed. (New York, 2002). 10 I refuse the argument of Philip Heymann. P. B. Heymann, Terrorism, Freedom and Security. (Cambridge, Massachusetts, 2003). 11 E. Guild, ‘Immigration, Asylum, Borders and Terrrorism: The Unexpected Victims.’, in R. B. J. Walker and G. Bülent (ed.), 11 September 2001. War, Terror and Judgement, (London, 2003). 12 D. Bigo, E. Guittet, ‘Vers une nord irlandisation du monde? Cultures et Conflits Militaires et Sécurité intérieure, l’Irlande du Nord comme métaphore’, Cultures et Conflits, 56, (Paris, 2004).

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5. Conclusion The question of the possibility of violence at a high intensity level by non-state actors is a serious one, even if not a new one. John Herz’s (1962) warning to states engaged in research of miniaturization of atomic armaments and further research in weapons of mass destruction generally to stop such development was based on his argument that the dissemination of this technology would go beyond the scope that the states think they can control13. This question about danger and its occurrence seems to be used by some professionals in politics to undermine the concepts of liberty and justice and is paving the way for more real death and violence, in the name of a crusade for freedom, instead of making proper space for discussion inside a constitutional setting and in open forums. I hope we will now discuss openly the impact of the transformation of political violence and the impact of surveillance and control measures in a more subtle and complex framing of the issues, instead of subverting with different meanings the sense of what freedom is, and what liberty is.

13 J. Herz, International Politics in the Atomic Age, (New York, 1962).

Chapter 3

Asylum Legislation in the European Community and the 1951 Convention: Key Concerns regarding Asylum Instruments adopted in the ‘First Phase’ of Harmonization Madeline Garlick1

1. Introduction With the entry into force of the Amsterdam Treaty in 1999, the European Union embarked on an ambitious and challenging programme of legislative harmonization in the complex and sensitive area of asylum and refugee protection. The Member States agreed to adopt a set of legal measures on asylum, in accordance with the Geneva Convention of 28 July 1951 (hereinafter the ‘1951 Convention’) and the Protocol of 31 January 1967 on the status of refugees and other relevant treaties.2 These measures aimed to set common minimum standards on defined subjects relating to asylum, namely allocating responsibility for claims among States; temporary protection; reception conditions for asylum seekers; qualification for international protection and asylum procedures. In its Tampere Conclusions, adopted shortly after the Amsterdam Treaty obligations took effect in 1999, the European Council affirmed the aim of the Member States to ‘work towards establishing a Common European Asylum System, based on a full and inclusive application of the Geneva Convention, thus ensuring that nobody is sent back to persecution’.3 The Council’s unequivocal political and legal

1 The author is Senior European Affairs Officer at UNHCR’s Regional Representation in Brussels. The opinions expressed herein are those of the author and do not necessarily represent the views of the United Nations or of the UNHCR. 2 Art. 63.1, Treaty establishing the European Community (as amended in Amsterdam, 2 October 1997), 1997 OJ C 340/1 (entered into force on 1 May 1999). 3 European Council, Presidency Conclusions, Tampere European Council, 15-16 October 1999, SN 200/99, 16 October 1999.

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commitments to international refugee law principles were supported by UNHCR and other observers at the time.4 In the five years of negotiations that followed, however, other imperatives also played an important role in shaping the EC laws. Asylum was (and remains) a highly charged political issue in many Member States. The experience of large numbers of people seeking protection in the EU from wars in the former Yugoslavia and elsewhere had led some European governments to adopt strict laws and practices on asylum. Citing public concerns about perceived misuse of asylum systems and Member States resources, interior ministries in various EU countries tightened laws on access to State territory, asylum procedures and grants of protection. Even after the figures for those arriving began to decline significantly in the late 1990s,5 with the end of conflict-caused displacement from the Balkans, Afghanistan and some other regions of origin, these firm approaches were seen as necessary to contain the risk of an unmanageable asylum-seeker burden. The negotiations for the EC basic asylum instruments were thus influenced by competing objectives. UNHCR and refugee advocates took the view that international law, based on the 1951 Convention and other treaties referred to in the Amsterdam Treaty, called for high standards of protection and processes to ensure that those entitled to it would be recognized.6 Others, including some representatives of influential Member States, called for less far-reaching rights and stricter procedures, in order more effectively to manage asylum-seeker movements within the EU, among other aims. For UNHCR, as the agency with supervisory responsibility under Art. 35 of the 1951 Convention and a consultative role on EU asylum matters under the Amsterdam Treaty7, the instruments resulting from the process contain important positive elements, but also some provisions which are cause for concern. These concerns, many of which are shared by other institutions, NGOs, academics and others8 4 UNHCR, Setting the European asylum agenda: UNHCR recommendations to the Tampere Summit, (23 July 1999); UNHCR, EU common strategy on asylum must meet highest standards of refugee protection, (8 October 1999); UNHCR, Asylum after Tampere: The EU asylum agenda following the Tampere Summit, (November 1999). 5 See UNHCR’s Statistical Yearbooks for successive years from 1994, including comparative statistics showing changes in asylum seeker numbers, available at: http://www. unhcr.org/cgi-bin/texis/vtx/statistics. 6 UNHCR commentaries on Commission legislative proposals and other EC texts: http://www.unhcr.org/cgi-bin/texis/vtx/rsd?search=legal&source=REFPOL&subject=comme ntaries; see also references under footnote 4 above. 7 Declaration 17, Treaty of Amsterdam, OJ 1997 C 340/1, (2 October 1997). 8 European Parliament, Legislative resolution on the amended proposal for a Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status (27 September 2005); Amnesty International, Comments Paper on a Future EU Common Asylum System, (December 2000); Steve Peers, The Amsterdam Proposals: The ILPA/MPG Proposed Directives On Immigration And Asylum, (ILPA/ Migration Policy Group, March 2000); ECRE, Comments on the Communication from the Commission to the

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focus on several aspects. First, there is the possibility that States which implement the EU standards at the minimum level permitted by the adopted Directives and Regulations could fall short of fulfilling their international legal obligations. This means that the EC norms could permit national laws and practices which violate international obligations governing the rights of asylum seekers and people in need of international protection. Secondly, the low minimum standards adopted by the EU would appear to be impelling some states which previously offered more generous entitlements to tighten their national laws, thus precipitating a drop in standards EUwide, potentially to the level of the ‘lowest common denominator’. Finally, there are fears that even the agreed EU standards may not be fulfilled or implemented in practice by some states, due to a wide range of factors, including limits on resources, competing political and social priorities, lack of use of enforcement avenues, and others. UNHCR has commented in detail on each of the instruments adopted to date, and provided its authoritative interpretation in the form of commentaries and recommendations for states in implementing the texts. Its aim is thereby to encourage the maintenance or adoption of higher standards than the minimum, based on the requirements of international law, as well as the need for effective and high-quality asylum processes, in the interests of states as well as asylum-seekers. The following summarizes some of the main areas of concern affecting each instrument, and calls for changes in the next phase of EU asylum legislation to improve the standards in line with international practice and for the benefit of all involved. 2. The Temporary Protection Directive The Council ‘Directive on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof’9 (‘Temporary Protection Directive’) establishes a mechanism for providing protection to refugees in Europe in the event of a ‘mass influx’ in one or more Member States. UNHCR broadly welcomed its adoption in 200110 as a practical measure aimed at meeting urgent protection needs during a mass influx situation until the individuals concerned have their asylum requests determined on a case-by-case basis. The Directive provided the legal basis for a rapid and positive response to any potential future crisis involving large-scale displacement of people Council and the European Parliament ‘Towards a common asylum procedure and a uniform status, valid throughout the Union, for persons granted asylum’, (June 2001). 9 Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof, OJ L 212/12, (7 August 2001). 10 UNHCR, UNHCR welcomes agreement on Temporary Protection, UNHCR Press Release, 1 June 2001.

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to the EU’s borders, by requiring states to afford them immediate protection without the need to undergo a full asylum process. The threshold for a ‘mass influx’ under the Directive is high, being defined as ‘the arrival in the Community of a large number of displaced persons who come from a specific country or geographical area … spontaneous or aided through formal evacuation programme’.11 The definition does not provide a specific number of people which would constitute a mass influx in any given situation, and UNHCR has commented that its meaning ‘cannot be defined in absolute terms, but must be defined in relation to the resources of the receiving country’. Power to declare the existence of a ‘mass influx’ rests with the European Council, which must decide by a qualified majority based on a Commission proposal.12 Following a positive decision by the Council, the Directive binds Member States to grant access to the territory and to immediate basic rights for all members of the affected group. The Directive underlines that the decision to declare a mass influx should be made by the Member States collectively, taking into account information from UNHCR, among other sources.13 These requirements, stringently applied, should safeguard against too frequent and precipitous use of the concept. It would not be appropriate in cases where early rapid and fair decision-making on claims would be feasible, leading to the grant of long-term status to those in need of international protection. Temporary protection under the Directive should normally continue for one year, subject to extension for a maximum of one further year.14 It may be terminated at any time by a Council decision that the situation in the country of origin ‘is such as to permit the safe and durable return of those granted temporary protection with due respect for human rights and fundamental freedoms and Member States’ obligations regarding non-refoulement’.15 The power of the Council to terminate temporary protection must be exercised with caution. UNHCR has urged Member States and the Commission to verify whether conditions in the country of origin would permit return, by assessing whether guarantees of physical safety, legal security and basic rights of people under protection are fulfilled in practice.16 If not, states should provide a long-term solution, such as asylum or other grant of status. Such an approach is needed to ensure that temporary protection is not ended prematurely, and that those subject to it are not left in a limbo at the end of the temporary protection period, should return not be possible in practice.

11 Council Directive 2001/55/EC, Art. 2.d. 12 Council Directive 2001/55/EC, Art. 5.1. 13 Council Directive 2001/55/EC, Art. 3.3; Art. 5.3. 14 Council Directive 2001/55/EC, Art. 4. 15 Council Directive 2001/55/EC, Art. 6.2. 16 UNHCR, Annotated comments on Council Directive 2001/55/EC on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof, see in particular the comment on Art. 6.

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Correctly applied, the Temporary Protection Directive should facilitate the provision of international protection to people requiring it, by requiring an immediate, if short-term right to stay,17 without prejudice to the outcome of any claim to refugee status18. In its detailed comments on the Directive, UNHCR specifically endorsed the Directive’s guarantee of the opportunity for people under a temporary protection regime also to file a claim for 1951 Convention refugee status.19 UNHCR’s Executive Committee has recognized that the suspension of status determination procedures may be necessary in situations of mass influx, while emphasizing that temporary protection measures must not reduce the protection afforded to refugees under the 1951 Convention.20 The Directive’s specific entitlement for people under temporary protection to lodge an asylum application at any time21 recognizes that the temporary regime is not an alternative to the provision of refugee status or other durable forms of protection. In order to give meaningful effect to the rights of refugees and others in need of international protection, the examination of asylum applications should not be delayed unreasonably beyond the end of the period of temporary protection. 3. The Reception Conditions Directive The 1951 Convention does not specifically address the issue of reception conditions for people who have requested international protection. However, the standards of treatment accorded to people awaiting decisions on their claims have a direct impact on their ability to establish and gain access to their 1951 Convention rights. If a person is unable to fulfil his or her basic needs while a claim is pending, including for requirements for shelter, sustenance and maintenance of physical health, she or he is likely to be hindered or prevented from pursuing the claim.

17 This requirement under the Directive is consistent with the Conclusion of UNHCR’s Executive Committee, which has affirmed that asylum seekers forming part of large-scale influxes caused by conflict or persecution must be admitted to the state in which they first seek refuge, without any distinction as to race, religion, political opinion, nationality, country of origin or physical incapacity: EXCOM Conclusions nos. 19 (XXXI) 1980, paragraph (a); 22 (XXXII) 1981, Part II(A) paragraphs (1-2); 74 (XLV) 1994, paragraph (r). 18 Council Directive 2001/55/EC, Art. 3.1 provides that ‘temporary protection shall not prejudge recognition of refugee status under the [1951] Geneva Convention’. EXCOM has also stated that the grant of temporary protection should not ‘diminish’ the protection available to refugees and others in need of protection under international law, and that full protection and basic minimum standards of treatment must be assured: EXCOM Conclusion 74 (XLV) 1994. 19 UNHCR, Annotated comments on Council Directive 2001/55/EC; Comments on Art. 3 and on Art. 17. 20 EXCOM Conclusion no. 74 (XLV), paragraph (t). 21 Council Directive 2001/55/EC, Art. 17.

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The EC Directive laying down minimum standards for the reception of applicants for asylum in the Member States22 (the ‘Reception Conditions Directive’) was seen as an important further step towards the establishment of an EU asylum policy.23 Among their other aims, Member States considered that ‘the harmonization of conditions for the reception of asylum seekers should help to limit the secondary movement of asylum seekers influenced by the variety of conditions for their reception’.24 The Preamble to the Directive (although not its operative text) notes that ‘minimum standards for the reception of asylum seekers that will normally suffice to ensure them a dignified standards of living and comparative living conditions in all Member States should be laid down’.25 However, the risk arises that a highly restrictive application of the Directive may impede the fulfilment of States’ obligations towards refugees, if people in need of protection are unable to pursue their claims effectively due to inordinate hardship under inadequate reception conditions. UNHCR and other observers have welcomed a number of positive requirements in the Directive, which are likely to improve the reception conditions currently available in some Member States. These include a specific obligation on Member States to provide information to asylum applicants on their rights and obligations relating to reception,26 including on sources of legal advice, support and health care. States must provide applicants with a document certifying their asylum seeker status, and confirming their lawful permission to stay while the application is pending.27 States are also obliged to offer emergency health care,28 respect the best interests of minors,29 give them access to education,30 and offer assistance for applicants with special needs,31 including treatment for torture survivors.32 Based on the essential needs of individuals and the practice of many States, these provisions could be seen to correspond to the minimum requirements for ensuring that persons in need of international protection will realistically and reasonably be able to remain in the asylum procedure until their claims are decided. There are, however, some broad exceptions and limits upon these provisions in the Reception Conditions Directive which could undermine the ability of asylum seekers to subsist effectively and to enjoy a ‘dignified standard of living’33 whilst awaiting a decision. These include scope to reduce or withdraw reception conditions 22 Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers, OJ L 31/18 (2 February 2003). 23 Ibid., Preamble, Paragraph 4. 24 Ibid., Preamble, Paragraph 8. 25 Ibid., Preamble, Paragraph 7. 26 Ibid., Art. 5. 27 Ibid., Art. 6. 28 Ibid., Art. 15. 29 Ibid., Art. 18. 30 Ibid., Art. 10. 31 Ibid., Art. 17. 32 Ibid., Art. 20. 33 Ibid., Preamble, Paragraph 7.

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in a wide range of circumstances – including if a person leaves a designated place of residence, fails to report to an appointment, or has previously applied for protection in the same Member State.34 Such people could have strong claims to international protection, notwithstanding their conduct in the country of asylum. There may also be valid reasons for asylum-seekers’ failure to comply with such formal requirements, which do not affect the merits of their claims. While States may justifiably wish to penalize certain acts, including breaches of the rules of accommodation centres or ‘seriously violent behaviour’,35 it can be argued that reduction or withdrawal of reception conditions is disproportionate and inappropriate in many of such cases. The Directive also contains gaps in its personal scope. Its provisions apply only to people who have made an application for asylum ‘as long as they are allowed to remain on the territory as asylum seekers’.36 This wording appears to exclude people who may be awaiting a decision on appeal, who may no longer be considered as asylum seekers with a right to remain on the territory, but as rejected claimants who are subject to removal. UNHCR has called for States to apply the entitlements in the Directive more broadly, and extend basic reception facilities to people awaiting an outcome at a later instance.37 Those challenging a negative first instance decisions generally have the same individual needs as those at first instance, and may be obliged to wait extensive periods of time for a potentially positive outcome on their claims. Provisions on residence and freedom of movement also fail to circumscribe clearly the situations in which detention may be employed, and the conditions that will apply to detainees in the asylum process. The Directive provides that ‘when it proves necessary, for example for legal reasons or reasons of public order, Member States may confine an applicant to a particular place in accordance with national law’.38 This provision effectively leaves Member States unfettered scope to use detention as they see fit. Detention which is ‘necessary.. for legal reasons’ is not defined further, and could conceivably be argued to include any justification referred to in national law, irrespective of whether it satisfies an objective test or corresponds to internationally endorsed norms for restricting free movement.39 In addition, the Directive fails to define any minimum acceptable conditions of detention for asylumseekers, which could serve to harmonize State practices and provide important safeguards for the many people who are detained in practice whilst awaiting a decision on their claims.

34 Ibid., Art. 16. 35 Ibid., Art. 16.3. 36 Ibid., Art. 3. 37 UNHCR, Annotated comments on Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers, comment on Art. 3.1. 38 Council Directive 2003/9/EC, Art. 7.3. 39 See, for example, EXCOM Conclusion 44 (XXXVII) on detention of asylumseekers.

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4. The Dublin II Regulation The Council Regulation establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third country national40 (‘Dublin II Regulation’) is designed to establish a ‘clear and workable method for determining the responsible Member State.41 It aims to utilize ‘objective, fair criteria both for the Member States and for the person concerned’ in order to determine responsibility and ‘guarantee effective access’ to asylum procedures, whilst not compromising rapid processing of applications.42 During the preparation and negotiation of the draft Regulation, UNHCR underlined that the interest of the asylum-seeker in having his or her claim fairly and promptly determined must be a central consideration in any discussion about States’ responsibility for processing applications43. It stressed that responsibility should lie primarily with the state in which the asylum claim has been submitted, except in cases where the applicant has a close connection or meaningful link with another state, rendering it fair and reasonable for him or her to request asylum there. Such a meaningful link could take the form of family connections, cultural ties, and knowledge of the language spoken in the Member State, issuance of a residence permit, or previous residence by the applicant. UNHCR expressed concern that the criterion of illegal border crossing could result in serious imbalances in the distribution of asylum applicants among Member States, which would particularly affect states at the EU’s external borders. Consistent with this approach, the Dublin II Regulation does rank the presence of family members (including relatives of unaccompanied minors, claimants’ relatives with refugee status or awaiting an asylum decision) highly among its criteria for allocation of responsibility. Whether applicants in all cases have effective opportunities, at the beginning of a Dublin II procedure, to establish the presence of family members in another state, is a question which merits examination. In the absence of evidence of family members in another State, the Regulation allocates responsibility to Member States which have issued a visa or residence permit to an applicant,44 or through whose territory an applicant has entered the EU,45 or who have received an asylum claim in an airport transit area.46 However, it can be 40 Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national, OJ L 50/1, 25 March 2003. 41 Ibid., Preamble, Paragraph 3. 42 Ibid., Preamble, Paragraph 4. 43 UNHCR, Revisiting the Dublin Convention: Some reflections by UNHCR in response to the Commission Staff Working Paper, (January 2001). 44 Council Regulation EC/343/2003, Art. 9. 45 Ibid., Art. 10. 46 Ibid., Art. 12.

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argued that these tests do not establish a sufficiently close individual link between a particular claimant and a State which would facilitate that state’s determination of the asylum claim. Although applied to determine responsibility in a large proportion of cases, they are also not criteria which encourage a fair distribution of asylum claims amongst Member States with reference to their capacity or numbers.47 The ‘humanitarian clause’, which permits a State to examine a claim based on humanitarian reasons, particularly where family or cultural considerations would warrant48, encourages states to assume responsibility where the individual circumstances and connections of the asylum seeker would require it. However, the non-binding nature of this provision, and its apparently rare application in practice, suggest that its effectiveness in practice is limited. Other concerns regarding the Regulation relate to the differing interpretation of the criteria for responsibility by different Member States. Divergent interpretations appear to result in disagreements about responsibility in some cases, which can cause delays and consequently extended periods of uncertainty for applicants about where their cases will be examined. Regarding reception conditions pending the outcome of a Dublin II procedure, the Regulation itself is silent on whether the minimum EC standards on reception conditions apply. Informal accounts suggest that only some States offer the full range of Reception Conditions Directive rights to Dublin II claimants. Others would apparently not consider Dublin II applicants as ‘asylumseekers’ until they have been found to fall under that State’s responsibility. A further serious concern, however, is a practice which appears to have the effect of denying Dublin II applicants a substantive examination of their claim in any state in the EU. At least one Member State, pursuant to its national law, deems claims as implicitly withdrawn if the claimant is absent from its territory for more than three months. As determination of responsibility under the Dublin II procedure will take more than three months in virtually all cases,49 the applications of Dublin II claimants are systematically treated as withdrawn, the procedure is discontinued, and no examination of the merits is carried out.50 In consequence, it is possible that people who may have protection needs may be removed from EU territory. While it could be argued that the prohibition against refoulement should apply to such people, even without a decision on their claims for refugee status. However, it is difficult to see how the claimant could have an opportunity to demonstrate the risk of direct or indirect refoulement, outside the formal procedure. As a result, this practice would appear to create the risk that people could be sent back to persecution or other forms of serious harm in violation of international 47 Ibid., Preamble, Paragraph 4. 48 Ibid., Art. 15. 49 The different deadlines in the Dublin II Regulation for states to request another to take charge or take back, and to carry out the relevant inquiries and transfer processes can entail a process of up to 11 months in many cases. 50 While possible in theory to apply to the highest court to reopen the case, this would appear not to be feasible in practice.

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law. It also potentially defeats the purpose of the Dublin II Regulation. If one State can divest itself of responsibility for examining a claim in substance by this means, all States could theoretically take the same approach – with the result that no State would effectively deal with Dublin II claimants on the merits. The objective of ‘determining the Member State responsible for examining an application for asylum’51 on its merits would not be fulfilled. 5. The Qualification Directive The Council Directive on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted52 (the ‘Qualification Directive’) defines the criteria on which international protection should be granted in EU Member States. Several elements in the Directive represent welcome steps towards aligning Community law with international law on refugee protection. In its definition of a ‘refugee’, the Directive incorporates the 1951 Convention definition as a binding standard under Community law.53 It also establishes an explicit obligation for all Member States to provide subsidiary protection to people at risk of serious harm which is defined as including, amongst other things, torture or inhuman or degrading treatment or punishment.54 The Directive also specifically refers to genderand child-specific forms of persecution, along with persecution or serious harm at the hands of non-state agents, both of which have attained widespread acceptance as ground for protection in the practice of numerous States. There are, however, other aspects of the Directive which raise questions with regard to compatibility with international law. One element is its personal scope, which limits refugee status or subsidiary protection under the Directive to third country nationals,55 and does not provide for the grant of asylum to EU nationals in any other Member State.56 No basis for such an exception to the right to asylum 51 Council Regulation EC/343/2003, Art. 1. 52 Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, OJ L 304/12, 30 September 2004. 53 Ibid., Art. 2.c. 54 Ibid., Art. 15. The wording in Art. 15.b refers directly to Art. 3 of the European Convention on Human Rights. 55 Ibid., Art. 1.c and 1.e. 56 This provision has as its basis the Protocol to the Amsterdam Treaty on asylum for nationals of Member States of European Union (the ‘Aznar Protocol’), pursuant to which the Member States (subject to a reservation on the part of Belgium) agreed that ‘Member States shall be regarded as constituting safe countries of origin in respect of each other for all legal and practical purposes in relation to asylum matters’. The Protocol states that asylum claims from nationals of another Member State should be considered admissible only in case of a derogation from or serious and persistent breach of the European Convention on

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can be found in the 1951 Convention.57 While the likelihood of persecution by an EU state of its nationals on 1951 Convention grounds is relatively small, it cannot be discounted altogether. There are also objections in principle to a provision which purports to deny collectively the right to asylum in Europe to Member State nationals in this way. The Directive also provides that protection may be provided by a non-state agent – such as an international organization – which controls the state or substantial part of the state from which a claimant hails.58 No similar presumption of safety or non-state protection exists in the 1951 Convention or any other international legal instrument. UNHCR has stressed that refugee status should not be denied on the basis of a non-refutable assumption that threatened individuals could be protected by non-state agents. It has underlined that international organizations do not have the attributes of a State, and that their ability to enforce the rule of law in practice is generally limited.59 This provision creates the danger that arguments could be constructed to send people back to places where they are not safe from persecution in any legal or physical sense. The Directive’s provisions on exclusion from refugee status60 also depart significantly specifically from the wording of Art. 1F of the 1951 Convention. Art. 1F excludes people from the 1951 Convention’s protection in cases where there are serious reasons for considering that they have committed a crime against peace, a war crime, or a crime against humanity; a serious non-political crime outside the country of refuge, before being admitted to that country as a refugee; or who is guilty of acts contrary to the principles and purposes of the UN. The Directive purports to expand the scope of these narrow exceptions. It provides that ‘admission’ to the country of refuge occurs only at the time of issue of a residence permit – thus extending the period during which serious crimes could be used to exclude a person from refugee status. It also extends the definition of ‘serious non-political crimes’ to ‘particularly cruel actions, even if committed with an allegedly political motive’. This additional category of acts introduces a wide and potentially subjective element to the notion of serious non-political crimes. Through these limitations, the Directive creates the danger in theory of refoulement of people who would not necessarily be excluded from protection under the 1951 Convention.61 Human Rights by his or her Member State of origin; or treated as manifestly unfounded by the Member State which receives the claim. 57 Art. 3 of the 1951 Convention prohibits discrimination on the grounds of nationality. 58 Council Directive 2004/83/EC, Art. 7.1.b. 59 UNHCR, Annotated Comments on the Council Directive on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, (January 2005). 60 Council Directive 2004/83/EC, Art. 12. Similar exclusion grounds are also provided from subsidiary protection status, in Art. 14. 61 It should be noted that some people caught by the Directive’s exclusion provisions would still benefit from protection against return to torture contrary to Art. 3 of the European

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The concept of ‘refugees sur place’, as stated in the Directive, also carries an potential contradiction. Art. 5 provides that refugee status should not normally be granted to persons who file a subsequent application, if their claim is based on circumstances created by the applicant’s own decision since leaving the country of origin. Voluntary acts of conscience, however, are widely recognized in the practice of States as grounds for granting sur place claims - and thus protecting people who could otherwise be persecuted if sent back to their countries of origin. The aim of this provision appears to be to discourage deliberate conduct which would create a claim for protection, in the absence of any other grounds. However the test for entitlement to refugee status is whether the applicant would objectively be in danger and applicants cannot be rejected on grounds of their motivation or ‘bad faith’ in performing acts which could place them at risk of persecution.62 Finally, the Qualification Directive also defines the content of protection for people who receive refugee status. However it also allows those rights to be reduced in case of people who deliberately engaged in conduct designed to create the conditions for their qualification63 – an exception which does not appear in the 1951 Convention. Similarly, key rights confirmed by the Convention are missing from the Directive, including the right ultimately to naturalization in the country of asylum. 6. The Asylum Procedures Directive The Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status64 (the ‘Procedures Directive’), adopted after years of intensive negotiations, defined minimum norms for the examination and determination of entitlements to protection. UNHCR welcomed some elements in the finally-adopted text, which is arguably the most politically sensitive and complex of all of the first-phase instruments. Its positive aspects include a set of minimum safeguards for those in the mainstream asylum procedure;65 assurances of rights of access to UNHCR,66 legal assistance67, and to personal interviews68 in most cases; and confirmation of the entitlement to an ‘effective remedy’ in the event Convention of Human Rights. 62 UNHCR, Annotated Comments on the Council Directive on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, comment on Art. 5.3. See also footnote 51. 63 Council Directive 2004/83/EC, Art. 20.6-7. 64 Council Directive 2005/85/EC of 1 December 2005 on Minimum Standards on Procedures in Member States for Granting and Withdrawing Refugee Status, OJ L 326/13, (2005). 65 Ibid., Chapter II, ‘Basic principles and guarantees’. 66 Ibid., Art. 10.1.c. 67 Ibid., Art. 15. 68 Ibid., Art. 12-14.

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of a negative first-instance decision.69 However, the exceptions and limitations on these basic rights are so far-reaching that they deny the basic safeguards to a large proportion of those who would enter the asylum process in the EU. One key concern is the lack of an obligation in the Directive for states to provide an appeal or review with suspensive effect. The Directive calls for an ‘effective remedy’70 – but then leaves it to Member States to determine in national law whether suspensive effect applies. This means that in practice, people who have been rejected at first instance can be sent back to countries of origin or transit while their appeals are still under consideration. Given the large number of first instance decisions that are overturned each year in EU second instance bodies, the danger of refoulement arises. This provision could in practice deprive rights to an ‘effective remedy’ of any meaning in practice. ‘Safe third country’ concepts, as expressed in the Directive, are also problematic. The general safe third country concept71 establishes a rigorous set of criteria for determining whether a country can be presumed ‘safe’ for an applicant – who might thereby be sent back in order to have a determination of his or her protection claim. However, the Directive’s wording leaves unclear the question of whether an applicant from a supposedly ‘safe’ third country will have a genuine opportunity to rebut the presumption of safety in his or her case. Although it requires States to establish ‘rules in accordance with international law’ for assessing safe third country cases, the formulation used suggests that only a limited form of rebuttal might be acceptable, which does not extend to considering whether there protection exists against all of the risks prohibited by the 1951 Convention.72 A further provision establishing the so-called ‘European safe third country’ concept73 would deny access to an asylum procedure altogether for people coming from certain countries. The criteria for defining such countries are not sufficiently demanding. The Directive provides that a country may be deemed safe if it has an asylum procedure ‘prescribed by law’ – but does not necessarily require that procedure to be effective in its practice. This disregards the reality that some countries have asylum laws on paper that they are unable or unprepared to apply fully and fairly. The Directive also provides for accelerated procedures, with significantly reduced procedural safeguards, in a long list of cases.74 These include, among others, instances where the applicant has failed to claim at the earliest opportunity; where she or he has refused to provide fingerprints; or has not provided sufficient evidence or documentation as to his or her nationality, amongst others. These are essentially formal grounds, which are not related to the strength of an applicant’s 69 70 71 72 73 74

Ibid., Art. 39. Ibid., Art. 39. Ibid., Art. 27. Ibid., Art. 27.2.c. Ibid., Art. 36. Ibid., Art. 23.4.

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claim to protection. UNHCR acknowledges that accelerated procedures may be used in the case of manifestly unfounded claims – but not where the need for protection is great, and the claimant has merely made inconsistent statements, or failed to meet a procedural requirement.75 This could lead to rejection of a well-founded claim – and thus the danger of refoulement contrary to the 1951 Convention. In the same way, the Directive also channels into an accelerated procedure those claimants who entered an EU Member State unlawfully.76 This raises questions of compatibility with Art. 31 of the 1951 Convention, precluding States from penalizing refugees for illegal entry. Significant restrictions on rights to personal interviews also inhibit the scope for genuine refugees to make their case convincingly. The Directive permits authorities to dispense with personal interviews, including for failure to meet formal requirements.77 Interviews may also be denied for inconsistent, contradictory, unlikely or insufficient representations,78 which are precisely the cases in which personal interviews are needed to clarify and clearly determine needs. These procedural gaps create the real risk of rejection of claims of people who are in fact eligible for refugee status. Given that the grant of refugee status is a declaratory, and not a constitutive act, the role of a fair procedure is to recognize those in need of international protection. Inordinately difficult procedural requirements do not facilitate the provision of protection in line with international law. 7. Next Steps: Review of the First Phase Instruments Following the adoption of these instruments in the first phase of establishment of the Common European Asylum System, the need is apparent for discussion at national level during the transposition and implementation process, and the provision of guidance and recommendations from UNHCR and other expert bodies on how national provisions should be formulated and applied. States should be encouraged to adopt or maintain higher standards than the minimum levels which the EC instruments have set, in the interests of fair, effective and in many cases simpler asylum arrangements. The Hague Programme also provides an important opportunity for reflection and assessment of the impact of these harmonization measures as the second phase progresses. The Commission has been invited to conclude an evaluation of the first phase instruments in 2007 and submit second-phase instruments and measures to the

75 UNHCR, ‘Provisional Comments on the proposal for a Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status, Council Document 14203/04’, 10 February 2005, comments on Art. 23.4. 76 Council Directive 2005/85/EC, Art. 23.4.l. 77 Ibid., including Art. 23.4.a raising facts of minimal relevance; Art. 23.4.e another application filed stating other personal data. 78 Ibid., Art. 23.4.g.

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Council and Parliament, with a view to their adoption by 2010.79 As debate continues about how to complete the establishment of the Common European Asylum System, the possibility is presented further to refine the existing standards in line with international law. The second phase legislative process should therefore involve not only supplementing the present texts with further instruments, but also amendment of existing provisions which allow scope for divergence from Community legal requirements and Member States’ binding obligations under international law. There will also be a potentially important role for courts to play. National courts will interpret domestic legislation adopted pursuant to the directives, and may find discrepancies between their states’ international obligations and the provisions which their legislatures have enacted. The European Court of Justice in Luxembourg will potentially also have a critical task, with its new jurisdiction over asylum. Cases may emerge only in the longer term future, and may be limited in number and scope, given the firm rules on standing to bring and power to refer cases to the ECJ. But it is foreseen that the court will be called on to rule on the compatibility of these provisions with other instruments of Community and international law, including the 1951 Convention. All Member States are bound by the Geneva Convention, as a matter of international law. They have also explicitly included an obligation to respect the 1951 Convention in a primary Community law instrument, the Amsterdam Treaty. These actions should be seen as indications of the EU Member States’ will to fulfil 1951 Convention obligations. There will be a need for further close monitoring, analysis and input to future legislation to ensure that this occurs. This is important, not only to complete the process of establishing the common European asylum system, but also to strengthen the instruments, norms and practices which have been adopted to date.

79 Council of the European Union, The Hague Programme: strengthening freedom, security and justice in the European Union, (Brussels, 13 December 2004), Paragraph 1.3.

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Chapter 4

The Bitter Fruits of an EU Common Asylum Policy Elspeth Guild 1

1. Introduction In 1999, the Amsterdam Treaty came into force and a competence was created for the European Union in the field of asylum. Art. 61 provides that ‘within a period of five years after the entry into force of the Treaty of Amsterdam, measures aimed at ensuring the free movement of persons in accordance with Art. 14, in conjunction with directly related flanking measures with respect to external border controls, asylum and immigration, in accordance with the provisions of Art. 62.2 and 62.3…’ shall be adopted. The measures to be adopted on asylum are found in Art. 63: 1. Measures on asylum, in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and other relevant treaties, within the following areas: a) criteria and mechanisms for determining which Member State is responsible for considering an application for asylum submitted by a national of a third country in one of the Member States; b) minimum standards on the reception of asylum seekers in Member States; c) minimum standards with respect to the qualification of nationals of third countries as refugees; d) minimum standards on procedures in Member States for granting or withdrawing refugee status. 2. Measures on refugees and displaced persons within the following areas: a) minimum standards for giving temporary protection to displaced persons from third countries who cannot return to their country of origin and for persons who otherwise need international protection; b) promoting a balance of effort between Member States in receiving and bearing the consequences of receiving refugees and displaced persons.’

1 Professor of European Migration Law, Radboud University, Nijmegen, Partner, Kingsley Napley London.

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Since 1 May 1999, measures have been adopted in most areas (see Annex 1). There has been substantial analysis of the measures2 both by academics and UNHCR. In this chapter, I will look at how one core EU asylum measure is impacting on the individual as regards his or her identification and ability to be or become a subject in law within the jurisdiction of the Member States. At the heart of the UN Convention Relating to the Status of Refugees 1951 and its 1967 Protocol (the Geneva Convention) is the duty of every state signatory to provide protection to a refugee (Art. 32 and 33 in particular). This duty is premised on the recognition of the individual as a rights holder in international law notwithstanding his or her regularity or irregularity on the territory of the state of refugee (Art. 31). What happens then, when a number of states, all signatories of the Geneva Convention enter into an agreement among themselves to abolish controls on persons moving across their common borders? What happens to the body and legal personality of the asylum applicant? The literature on EURODAC is as yet limited. There has been some interest in the question of the transformation of the body of the asylum seeker3 and some legal analysis of the system4 though in both cases this predates the first two Annual Reports on the operation of the system. In this chapter I will examine the changing nature of the law, territory and the asylum seeker as a biometric indicator becomes the central element determining the legally of the physical body’s presence. 2. The Body of the Asylum Seeker When the EU was granted competence in the field of asylum, it inherited a body of measures which sought to coordinate action among the Member States in the field which had been developed both in the Third Pillar of the Union between 1993-1999 and some measures which predated the Third Pillar, such as the Dublin Convention relating to the determination of the state responsible for an asylum application which was opened for signature in 1990.5 The Dublin Convention which entered into force in 1997 is based on three main principles:

2 See, for instance, European Journal of Migration and Law, vol. 7, no 1 (2005) and vol. 4, no 2 (2002). 3 I. Van der Ploeg, ‘Eurodac and the Illegal Body. The Politics of Biometric Identity’, Ethics and Information Technology, vol. 1, no. 4. (1999): 37-44; I. Van der Ploeg, ‘Biometrics and the body as information: normative issues in the socio-technical coding of the body.’, in D. Lyon (ed.), Surveillance as Social Sorting: Privacy, Risk, and Automated Discrimination, (New York, 2002), pp. 57-73. 4 E.R. Brouwer, ‘Eurodac: Its limitations and temptations’, European Journal of Migration and Law, vol. 4 (2002): 231-247. 5 See J-Y. Carlier, ‘Le développement d’une politique commune en matière d’asile’ in C. D. Urbano de Sousa and Ph. de Bruycker, The Emergence of a European Asylum Policy (Brussels, 2004), pp 1-15.

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1. An asylum applicant has only one opportunity to make an asylum application in the territory of the Member States and that decision, provided it is negative is respected by all of them (though there is no mutual recognition if the decision is in favour of the refugee); 2. It is for the Member States to determine which Member State will be responsible for considering the asylum application irrespective of the wishes of the asylum applicant; 3. Among themselves, it is the Member State which permitted the asylum applicant access to the common territory which must take responsibility for considering the application and caring for the applicant during the process.6 Even by the time the Convention was signed it was already evident that there were substantial difficulties with the principle not least on account of the fact that asylum applicants arrive in Europe in increasing numbers without documents (itself connected with EU measures to make obtaining visas and access to carriers more restrictive with devastating consequences for refugees7). In the explanatory memorandum to the measure which would be adopted to address this issue the Commission states: ‘The Dublin Convention of 15 June 1990, to which all Member States are party, provides a mechanism for determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities. The Member States considered that it would, however, be problematic to implement the Convention solely on the basis of the evidence provided by identity cards and passports, since these can easily be disposed of or destroyed. In December 1991, Ministers responsible for immigration meeting in the Hague therefore agreed that a feasibility study for a Community wide fingerprint system for asylum applicants should be undertaken. Work has been ongoing since then to develop a system for the computerized comparison of fingerprints in order to facilitate the application of the relevant rules for determining which Member State is responsible for considering an application for asylum.’8 The decision was taken already in 1991 to look for a technological fix to the question of identifying the body of the asylum seeker. While until that time the documents of the asylum seeker issued by his or her country of origin had been the principal means by which his or her identity has been determined, this was no longer considered satisfactory. The Member States evidenced their distrust of documents, 6 I have examined these principles in greater depth in ‘Between Persecution and Protection – Refugees and the New European Asylum Policy’, in The Cambridge Yearbook of European Legal Studies, vol. 3 (2000); H. Battje, ‘A Balance between Fairness and Efficiency? The Directive on International Protection and the Dublin Regulation’, European Journal of Migration and Law, vol. 4, no 2 (2002): 159-192. 7 Oxfam, Foreign Territory: The Internationalization of EU Asylum Policy, (Oxford, 2005). 8 European Commission, Proposal for a Council Regulation (EC) concerning the establishment of ‘Eurodac’ for the comparison of the fingerprints of applicants for asylum and certain other aliens, COM (1999) 260 final, (Brussels, 26 May 1999).

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either on grounds of fraud or improper issue or unavailability. The statement of the asylum applicant him or herself as to identity was considered inadequate or suspicious. Thus the search began for a definitive method under the control of the state where the applicant makes the application, that is to say the EU Member State, to determine definitively the identity of the applicant. As neither the individual nor his or her country of origin could be trusted, a new system of identification had to be created which could provide the security which the Member States wanted. The result is the first engagement of the EU with the collection, retention and manipulation of biometric data of an individual for the purposes of identifying him or her across the borders of the Member States. In one sense, the first people to have a genuinely EU identity are these asylum applicants for whom their names, dates of birth and nationality are less relevant to where they may or indeed must live than their fingerprints. By 1996 when negotiations were opened the Member States had decided to use fingerprints of asylum seekers as the mechanism for their identification. Fingerprints would be taken from all asylum applicants over the age of 14 and sent to a Central Unit which would be responsible for the retention and storage of the data. It would also be responsible for the comparison of fingerprint data sent to the Unit again data already held. The results of the comparison would be transmitted to the Member States concerned. From the beginning then, the EURODAC system would identify the individual via the fingerprints but also attach the individual to a Member State – the first Member State to send his or her fingerprints to the Central Unit. This Member State would be, prima facie, the Member State responsible for determining the asylum application and caring for the asylum applicant in accordance with the provisions of the Dublin Convention. The negotiations led to a draft protocol to the Convention but rapidly became bogged down in a discussion on whether it would be possible to include third country nationals apprehended in connection with the irregular crossing of an external border in the protocol or not. In the end, as the decision was taken to move the whole field into EC competence, the protocol was frozen pending the entry into force of the Amsterdam Treaty.9 This then resulted in a rather sui generis state of affairs whereby the EURODAC regulation was adopted as EU law in 2000, even though the Dublin Regulation (that is the regulation which took the provisions of the Convention of that name and transposed them into EU law) was not adopted until substantially later – in September 2003. The Commission expressly acknowledges this in the Working Party on Asylum on 8 October 1999 when it stated that it ‘was of the opinion that EURODAC is an instrument implementing the Dublin convention and cannot be seen as Schengen relevant.’10 In the Explanatory Memorandum to the EURODAC Regulation, the Commission provides its Justification for Proposal in terms of Proportionality and Subsidarity Principle. Leaving aside the question of subsidiarity, it is worth quoting the Commission’s justification in terms of proportionality: ‘What are the objectives 9 Explanatory Memorandum, COM(1999) 260 final, pp 3-4. 10 Council of the European Union, Document no. 11683/99, (1999).

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of the proposal in relation to the obligations imposed on the Community? The objectives of the measure are to assist in determining the Member State which is responsible pursuant to the Dublin Convention for examining an application for asylum lodged in a Member State and otherwise to facilitate the application of the Dublin Convention under the conditions set out in the proposal. These objectives are consistent with the objective under Title IV of the Treaty establishing the European Community of establishing an area of freedom, security and justice. To establish such an area, the Community is to adopt measures aimed at ensuring the free movement of persons, in conjunction with directly related flanking measures inter alia on asylum under Art. 63.1.a of the Treaty. Art. 63.1.a of the Treaty requires the Community to adopt measures on criteria and mechanisms for determining which Member State is responsible for considering an application for asylum s submitted by a national of a third country in one of the Member States.’ Nowhere does the Explanatory Memorandum even address the issue of proportionality as regards the data subject. The questions whether it is lawful, let alone legitimate to collect fingerprint data from asylum seekers solely on the ground that they are asylum seekers, to store that data, to use that data without the consent of the data subject and potentially at least even to transmit that data without the consent of the data subject to another authority (though this is much contested) is nowhere addressed. The question of proportionality is considered exclusively from the perspective of the obligations which are imposed on the Community. Again, according to the Explanatory Memorandum, the objective of EURODAC is exclusively ‘to assist in determining the Member State which is responsible pursuant to the Dublin Convention’ and otherwise to facilitate the application of the Convention. The Explanatory Memorandum refers to the rights of the data subject only at the end of the general outline and by reference to another EU measures: Directive 95/46 on the protection of individuals with regard to the processing of personal data and on the free movement of such data. 3. The Provisions of EURODAC Regulation 2725/2000 was adopted in 2000 and the system it creates began operating on 1 March 2003. Ireland and the UK opted into the measure. EURODAC consists of a Central Unit, established within the European Commission, and a computerized central database in which data are processed for the purpose of comparing the fingerprint data of applicants for asylum and of the categories of third country nationals referred to in the regulation (that is those apprehended irregularly crossing an external frontier). In other words, the debate on whether to include fingerprint data of persons apprehended in connection with the irregular crossing of an external border was resolved in favour of their inclusion. As the EURODAC system has only one objective – determining where asylum seekers belong territorially – the retention of data on non-asylum seekers had to be tied into the asylum procedure. I will return

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to this later, suffice it here to note that the result is the convergence in policy of the categories of persons irregularly crossing borders and asylum applicants. The Regulation only covers third country nationals. It defines a ‘hit’ as the existence of a match or matches established by the Central Unit by comparison between fingerprints recorded in the databank and those transmitted by the Member States with regard to a person (Art. 1 and 2). The data which is recorded in respect of an asylum applicant are limited to: a) b) c) d) e) f) g) h)

Member State of origin, place, and date of application for asylum; Fingerprint data; Sex; Reference number used by the Member State of origin; Date on which the finger prints were taken; Date on which the data were transmitted to the Central Unit; Date on which the data were entered into the central database; Details in respect of the recipient(s) of the data transmitted and the date(s) of transmission(s). (Art. 5).

Thus for EURODAC, the individual becomes no more or less than his or her fingerprints. Of course the exclusion of information on the individual’s name and nationality is a protection for the asylum applicant against any possible misuse of the database. The data is stored for ten years after which time it is automatically erased from the central database. It will be erased earlier if the individual acquires citizenship of a Member State in the meantime (Art. 7). The data which is recorded in respect of a person apprehended in connection with the irregular crossing of an external border are: a) b) c) d) e) f)

Member State of origin, place and date of apprehension; Fingerprint data; Sex; Reference number used by the Member State of origin; Date on which the fingerprints were taken; Date on which the data were transmitted to the Central Unit (Art. 8).

This data may not be compared against the first set of data regarding asylum applicants or any data subsequently transmitted under the heading of irregulars. It can only be stored and compared against fingerprints of persons who subsequently apply for asylum. By this means the objective of the Regulation is respected while the database includes information on irregulars. The problem, however, is the theoretical shift inherent in incorporating irregulars expressly into the category of potential asylum applicants which other third country nationals, such as students, visitors etc, are excluded. This data can be stored for up to two years from the date the fingerprints were taken (Art. 10). It must be erased if the Member State of origin becomes aware

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that the individual has been issued a residence permit left the territory of the Union or acquired citizenship of a Member State. Member States may send to EURODAC fingerprint data on any third country national found illegally present within its territory for the purpose of checking whether the individual has applied for asylum in another Member State (Art. 11). This data can only be used for the purpose of a comparison and not stored. Nor can such data be compared against the database of those apprehended in connection with irregularly crossing the external frontier. Where an asylum applicant is recognized as a refugee, the fingerprint data must be blocked – but this depends on the Member State informing the Central Unit (Art. 12). In terms of legal responsibility – this is consistently shifted down to the Member State level – so responsibility that the fingerprints are lawfully taken and transmitted is a Member State responsibility. They are also responsible for ensuring no unauthorized access to the database and preventing any copying or recording of data. Access and correction of data is also regulated. Member States may always have access to data they have sent but not to data any other Member State has sent. There are rather limited rights to the data subject in the Regulation contained in Art. 18. These are to be informed of: a) b) c) d) e)

the identity of the controller (or representative); the purposes for which the data will be processed in EURODAC; the recipients of the data; the obligation to have his or her fingerprints taken; the existence of a right of access to and the right to rectify the data concerning him or herself.

A joint supervisory authority is established under the Regulation which monitors the Central Union and EURODAC is required to produce an annual report submitted to the European Parliament and the Council. I will return to the first two annual reports shortly to examine what happens to the traces of the bodies of asylum seekers in the system. First, however, I will consider what the key issues were in the negotiation of the regulation and what demands the Member States made in the Council regarding the text before its final adoption. 4. The Member States and EURODAC: The Negotiations The Commission’s proposal for the regulation stressed heavily the fact that it was no more than the reformulation of the draft protocol which the Member States had already agreed for the purposes of the Dublin Convention. However, in the first minutes of proceedings in the Council it was apparent the Member States were not convinced. Denmark,11 Ireland and the UK all stated they were considering their positions (in 11 Denmark requested a written opinion from the Council Legal Service ion whether the regulation was Schengen relevant Council Document no. 11683.

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light of their opt out protocols) an indication that they were not convinced. The Spanish delegation was clear about their reservation – they objected that the proposal lacked the clause on territorial scope which had been included in the draft protocol (an oblique reference to the dispute between Spain and the UK over the status of Gibraltar). France and Germany were concerned about giving implementing powers to the Commission which would also be running and managing the database. It is interesting to note that at this early stage, no Member State disputed the decision to place the database within the Commission and at the sole control of the Commission. This is not the model which was chosen for the Schengen Information System, a database created under treaty law (the Schengen Implementing Agreement 1990) and which is not under the control of one institution. The Swedish delegation did request clarification immediately regarding the relationship of the two databases and was advised by the Commission that EURODAC did not build on the Schengen acquis at all.12 Concerns were expressed also at an early stage regarding the rights of the data subject (Germany)13 and the powers of implementation (France).14 By October 1999, most delegations had had an opportunity to consider in some depth the draft. At this point, worth noting is that the Greek delegation wondered whether the EU data protection directive (95/46) applied;15 the Spanish delegation was concerned at the narrowness of the purpose of EURODAC and entered a scrutiny reservation on the use of the word ‘sole’ to describe the objective of the database;16 the definition of ‘processing of personal data’ was the subject of dispute by the German, Spanish and UK delegations which wanted a definition tied more closely to the Data Protection Directive. The definition of aliens apprehended in connection with the irregular crossing of an external border was subject to discussion. The Finnish Presidency supported by the Irish proposed a restriction on who could be categorized under this provision as in connection with the irregular crossing of a border. The definition suggested had two parts: ‘(a) the alien is apprehended at or close to the border itself; or (b) the alien is apprehended beyond the border, where he/she is still en route and there is no reasonable doubt that he/she crossed the border of the Member State irregularly having come from a third country.’17 Clearly these two states were concerned to limit the practices of border officials and to make it clear that in order to be subject to the intrusion of privacy which the taking of fingerprints entails, there must be a clearly defined presumption, demonstrable in law, that the individual has in fact crossed the border irregularly. One of the concerns about the EURODAC system was its application at, for instance, train stations deep in the heart of the Member States on 12 Council of the European Union, Document no. 10530/99, (1999). 13 Council of the European Union, Document no. 11411/99, (1999). 14 Council of the European Union, Document no. 11091/99, (1999). 15 The Commission confirmed that ‘Eurodac does not fall under any of the headings of Art. 3.2 of Directive 95/46/EC which states the situations in which Directive 95/46/EC does not apply.’ Council Document no. 11683/99, (1999). 16 Council of the European Union, Document no. 11396/99, (1999). 17 Council of the European Union, Document no. 11683/99, (1999).

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the basis that international trains also arrive there. This proposal was rejected not least by Belgium, Germany, Spain, Greece, Italy, France, the Netherlands, Austria, Portugal and Sweden.18 Further, a statement was included in the Council minutes on adoption of the regulation which states ‘This provision also covers cases where an alien is apprehended beyond the external border, where he/she is still en route and there is no doubt that he/she crossed the external border irregularly.’19 The UK was concerned that the wording “not turned back” at the border might be too narrow to include those who may be detained for a short period before removal to a country outside the EU. Clearly it wanted states on the borders to take fingerprints of all those who are detained shortly as well.20 Of substantial interest, a number of Member States (Austria, Germany, Luxembourg) was keen to water down the fairly strict provisions on length of storage of data particularly in Art. 16 (they did not succeed). The rights of the data subject also excited interest. The Spanish delegation suggested this could be dispensed with as Directive 95/46 applied; the Luxembourg delegation suggested there should be some exceptions; the Finnish delegation wanted to add a right to the data subject to know the identity of the controller and recipients or categories of recipients of data; the German delegation worried about the width of the right to know why the fingerprints were being taken; the UK suggested some cross referencing within the document with which German Spain and France disagreed and the Austrians suggested adding ‘without excessive delay’ to the requirement to correct or erase inaccurate data (they succeeded and this was added to the final text).21 By 18 October 1999, Ireland and the UK had decided to participate in the regulation, an indication that it was in a fairly final form.22 Denmark was still considering its position. At this point difficulties arose regarding the provision on penalties for misuse of the information. Responsibility rests with the Member States but in the original draft they were required to take measures which were ‘effective, proportionate and dissuasive’. This was unacceptable to a number of delegations. The Finnish Presidency supported by the German, Portuguese and Swedish delegations proposed an alternative wording which would require Member States to lay down penalties on the use of data recorded in the central database contrary to the purpose of EURODAC as laid down in Art. 1.1. However, this was not acceptable to the Greek, Spanish and French delegations and to the Commission. Greece and Spain wanted all reference to penalties dropped.23 The importance of this debate relates to the fact that already in 1999, there were ideas and concerns about how the database might be used. Those who wanted clear and precise penalties for misuse were already anxious about the temptation which such a database might prove to be for other state 18 19 20 21 22 23

Ibid. Council of the European Union, Document no. 13230/99, (1999). Council of the European Union, Document no. 11683/99, (1999). Council of the European Union, Document no. 11396/99, (1999). Council of the European Union, Document no. 11871/99, (1999). Council of the European Union, Document no. 11683/99, (1999).

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authorities (such as intelligence services seeking to data-mine). Those states which were more reluctant to include clear penalties may already have been aware of the potential value of such a database for other services. In the end a penalties provision was included at Art. 25 which requires the Member States to make provision for ‘appropriate penalties’. At this point substantial interest began to be expressed in Art. 22 on the committee charged with adoption of the implementing rules. While the French delegation had expressed interest in this provision from the beginning, at this point Germany, Austria, Spain, Belgium, Sweden, Portugal and the Netherlands all expressed views. The main point of contention was whether the committee would be controlled by the Commission or the Council. The Permanent Representatives Committee considered the issue in October in an attempt to resolve the issue. The French and German delegations had set out a list of matters for which implementing rules should, in their view, be reserved to the Council. The Spanish delegation wanted to go further and reserve all matters to the Council while the Belgian, Swedish and Portuguese delegations supported the Commission. The Commission representative argued forcefully, noting that the proposed system would differ from that of the Customs Information System and reminded the delegations that the legality of acts of the Council, too, were subject to the jurisdiction of the Court of Justice.24 To no avail, in the end it was the Council which would adopt the implementing legislation but only by majority.25 At this point, also the territorial scope was settled. It is interesting to note in operation one of the techniques for settling arguments in the Council at work – the extension of the preamble to include points some Member States insist upon but others refuse to have in the body of the text.26 On the issue of the application of Directive 95/46 – the general data protection directive – the Council Legal Service provided an opinion on 11 November 199927 which still remains confidential. However, the Legal Service did confirm that the directive does apply to EURODAC in so far as it is agreed that the system implies the processing of personal data in accordance with the directive. What the Member States were particularly interested in, though, was how far they would be entitled to rely on the exception in the directive which excludes the processing of personal data ‘in the course of an activity which falls outside the scope of Community law, such as those provided for by Titles V and VI of the Treaty on European union and in any case to processing of operations concerning public security, defence, Stat security…and the activities of the State in areas of criminal law.’ This part of the Legal Service’s opinion is not available. It is of concern, though, that the exception on use of personal data which applies to security and criminal law issues was very much at the top of the agenda regarding the sue of the EURODAC data.28 24 25 26 27 28

Council of the European Union, Document no. 12317/99, (1999). Council of the European Union, Document no. 12582/99, (1999). See Council Document 13052/99 for a good example of this practice. Council of the European Union, Document no. 12799/99, (1999). Council of the European Union, Document no. 12799/99, (1999).

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By November 1999, the Greek delegation was still concerned whether Directive 95/46 applied to the regulation in full; the rights of the data subject were still under reservation by Spain and Belgium and Germany had proposed an alternative text. The European Parliament Report on the proposal was published on 11 November 1999 and was largely favourable to the proposal put forward by the Commission though the Legal Affairs Committee was concerned about the relative weakness of the fundamental rights protections.29 An earlier Parliament opinion on the draft protocol had been highly critical of the extension of the EURODAC system from asylum applicants to persons apprehended irregularly crossing an external frontier. However, the Parliament gave its opinion on 18 November 1999 endorsing the 11 November opinion proposing an amendment to the collection of fingerprints from persons apprehended but only to the extent of adding an express reference to the European Convention on Human Rights. The Parliament was consulted on the redrafted proposal and some changes were made on account of opinion, which in any event was favourable in the whole.30 By the end of November 1999, even the outstanding issues on the rights of the data subject had been resolved though the committee issue was outstanding and the territorial scope began to cause trouble mainly between Spain and the UK.31 The final version of the proposal was sent to the Council to be adopted on the ‘A’ list in November 2000.32 It was adopted on 11 December 2000. 5. The Operation of EURODAC The justification for EURODAC was to make the Dublin Convention (and later the Regulation) work more efficiently and effectively. The justification for the Dublin Convention and later the Regulation was to prevent refugees being in orbit among the Member States with no Member State taking responsibility and in order to prevent secondary movements of asylum seekers around the Member States. Further the spectre of multiple applications was also an underlying concern which justified the establishment of the system: ‘the Member States realised that they would have difficulties in identifying third country nationals who had already lodged an asylum application in another Member State.’33 On this issue, at least, EURODAC would, if correctly used be able to provide a definitive answer: how many asylum seekers apply for asylum in more than one Member State? This state anxiety is the result of the abolition of border controls on persons moving among all but two (Ireland and the UK) Member States. The Dublin Regulation requires that asylum seekers be self regulating and not use the right of free movement which all other persons regularly 29 A5-0059/1999, Rapporteur: Hubert Pirker. 30 Council of the European Union, Document no. 13603/99, (1999), and no. 6376/00, (2000). 31 Council of the European Union, Document no. 13603/99, (1999). 32 Council of the European Union, Document 12314/00, (2000). 33 European Commission, SEC(2004) 557, paragraph 1.2.

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present in the Union have but to remain fixed in the Member State to which they are allocated.34 It sits uncomfortably with the Geneva Convention duty of all states individually to ensure the protection and provide refuge to a refugee. The first annual report of EURODAC was published on 5 May 2004.35 The second report followed just over a year later on 20 June 2005.36 These two reports provide the statistical information on the use of EURODAC and the hits. The first annual report identifies three different types of data which are kept by the Central Unit: a) b) c)

Category 1: data of asylum applications; Category 2: data of aliens apprehended in connection with the irregular crossing of an external border; Category 3: data relating to aliens found illegally present in a Member State (though this data is not stored).

The annual report provides information on the basis of the three categories giving ‘hit’ for ‘hit’ data on fingerprints which match or do not match. The report contains many pages of information on its establishment and operation focussing heavily on its successful operation through the criteria which it has established to measure success. This primarily involves management and the calculation of successful transactions as information which is readable and not corrupted. It is also concerned with rapid response times by the Central Unit. In its first year of operation the Central Unit received 271,573 successful transactions – correctly processed data which has not been rejected due to a data validation issue, fingerprint error or insufficient quality. These successful transactions consisted of: Category 1: 246,902 asylum seekers; Category 2: 7,857 illegal border crossers (as the report calls them) and Category 3: 16,814 illegally apprehended persons. The initial assumptions of numbers in category 2 for the first year had been 400,000 so the actual figure came as something of a surprise. The numbers of hits were as follows: a)

Category 1 against category 1: this ++s asylum seekers fingerprints against asylum seekers fingerprints. The figure relates only to those asylum seekers

34 U. Brandl, ‘Distribution of Asylum Seekers in Europe? Dublin II Regulation determining the responsibility for examining an asylum application’ in C. D. Urbano de Sousa and Ph. de Bruycker, The Emergence of a European Asylum Policy, (Brussels, 2004), pp 3370. 35 European Commission, SEC (2004) 557. 36 European Commission, SEC (2005) 839.

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who sought asylum in one Member State and then sought asylum in another Member State: 14,960; Category 1 against category 2: this is asylum seekers against persons apprehended in connection with the irregular crossing of an external border: 673; Category 3 against category 1: this is fingerprints of persons illegally present in one Member State against the fingerprint data on asylum seekers in another Member State: 1,181.

Thus out of just under 300,000 fingerprints stored over the first year, evidence of third country nationals moving around the internal market without permission or making more than one asylum application in more than one Member State appears to have been in the region of under 17,000. Many would consider this to be rather surprisingly low and indeed that the figures already raise questions about the proportionality of the measure. The second annual report was published in June 2005. It covers the period 1 January 2004 to 31 December 2004. This period of course includes 1 May 2004 and the enlargement of the EU to the ten new Member States all of which had to prepare for entry into the EURODAC system and, according to the report, have done so successfully. Over this period the Central Unit received 287,938 successful transactions: a) b) c)

category 1: 232,205 asylum seekers; category 2: 16,183 illegal border crossers; 39,550 illegally residing persons.

It is somewhat surprising that the enlargement of the EU to include 10 new Member States resulted in an increase of fingerprint data in the second year of operation in comparison with the first year of only 16,000. The response time of the Central Unit in the second year was within 4 minutes in 98.50% of cases. According to the report, category 2 persons, where the numbers have doubled in comparison with the first year have so doubled evenly across the Member States. The category 3 persons, where the numbers have risen substantially, are mainly accounted for in the second half of the year after enlargement. The report surmises that enlargement may have stimulated interest in this category but it notes that five Member State have never used it at all. As regards hits, the 2004 information is also revealing. The numbers of hits for year two were as follows: a)

Category 1 against category 1: this is asylum seekers fingerprints against asylum seekers fingerprints. The figure relates only to those asylum seekers who sought asylum in one Member State and then sought asylum in another Member State: 28,964;

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b) c)

Category 1 against category 2: this is asylum seekers against persons apprehended in connection with the irregular crossing of an external border: 1,466; Category 3 against category 1: this is fingerprints of persons illegally present in one Member State against the fingerprint data on asylum seekers in another Member State: 5,492.

In table form, taking the two years together the comparison looks like this: Category 1-1 (asylum seeker to asylum seeker) 1-2 (asylum seeker to border crossers) 3-1 (illegally present to asylum seeker)

Year 2003

Year 2004

14,960 673 1,181

28,964 1,466 5,492

There any many possible explanations for the rise in 1–1 hits. The most immediate is that the databank acquires more and more fingerprints, the likelihood that it will catch repeat applications goes up. The report notes that as regards repeat applications, one applicant appears to have applied eight times for asylum. The 2004 data includes detailed information about which state sends fingerprints for comparison and against which state there is a positive hit (that is that state has already lodged the fingerprints of the individual). The country which comes top on hits is Germany with 4,626 while it only comes second as a sender country with 4,325 (France is at the top of the sender list with 4,329). But with a difference of only 300 persons between the hit and sender categories for the same state, Germany, it is difficult to see the sense of seeking to move over 4,000 asylum seekers to other Member States only to get over 4,000 back, albeit different ones. This pattern of relative consistency applies to most Member States though some such as France have substantial differences: as a sender 4,329 while as a hit country 1,451. Norway and Slovakia also have quite substantial differences between the two categories. As regards category 1 against category 2, asylum seekers against persons apprehended irregularly crossing an external border the differences between hit and sender rates for countries varies with geography as one would expect. France has zero hits against it but 272 hits as a sender of data. Greece, on the other hand has 565 hits against it and three as a data sender. The low level of the overall figure in this category indicates that it is not proving an important tool at least at the moment. In category 3 to category 1 the total number of intra Member State hits was 5,492 in the second year, a substantial rise in numbers against the first year where the figure was just over 1,000. This will be an effect of the increasing amount of data in the databank against which checks can be made. But this category in itself is an interesting one as to some extent it records how asylum seekers use or do not use the internal market. It is a matter for national law to determine whether an individual is illegally present on the territory. The circumstance in which an asylum seeker who is the responsibility of another Member State may be illegally present on the territory

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of another Member State depends on those conditions. However, the lack of border controls on movement of persons among most of the Member States (excluding of course the opted out – Ireland and the UK and the not yet accepted in – the 10 new Member States) means that there is no physical obstacle to asylum seekers moving from one Member State to another just like anyone else. Those who, however, as subject to an identity control in the other Member State may find themselves as a matter of national law illegally present. Their details will appear in this category of information held by EURODAC. 6. Conclusions The body of the asylum seeker becomes the traceable evidence of his or her existence. The existence in law of the asylum seeker as a person seeking a right to reside, access to the labour market or benefits remains allocated to a Member State on the basis of rules which are determined by the EU itself but without regard to the preferences or wishes of the asylum seeker. Any legal claim in respect of these rights can only be made in the allocated Member State. Whether the asylum seeker is actually or only virtually in the Member State where his or her legal claims may be made does not affect that fact that it is only the law of the allocated Member State which will resolve whether or not he or she is a refugee or entitled to protection and social and economic rights. If the asylum seeker is only virtually in the allocated Member State but actually in another Member State, he or she will of course be subject to the laws in other fields (such as criminal law) of the state where he or she is actually present. But to acquired the right to be present at all, the individual may only use the law of the state allocated. Accordingly the Member States have national rules which make inadmissible an asylum application by an asylum seeker who “belongs” in another Member State. In 2005 the matter of a Sudanese asylum seeker came before the High Court in the UK.37 The UK authorities sent the fingerprints of an asylum seeker to EURODAC and received back a report that there was a hit, the man’s fingerprints had already been registered in the database by Italy. The UK authorities advised their Italian counterparts of the hit and that they would be sending the man to Italy. In due course, Mr Ali was put on a plane to Italy notwithstanding his strenuous contention that he had never been in Italy. When he arrived in Italy, the Italian authorities took his fingerprints and found that he was not the same person in respect of whom they had accepted responsibility but someone else, who was registered in the EURODAC database as having applied for asylum in the UK. As he was registered already in the database as an asylum seeker, under Italian law any application for asylum which he might try to make in Italy is inadmissible. As he cannot make an asylum application

37 The Queen on the application of Mr Numieri Mohammed Ali v Secretary of State for the Home Department CO/1472/2005. The UK authorities conceded liability so there is no written judgment.

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he is not entitled to any social benefits, food, housing etc. Further he is irregularly present in Italy. The Italian authorities notified the UK authorities of the error but no action was taken to bring Mr Ali back to the UK. Mr Ali had no resources or family in Italy and was excluded from all entitlements to support. He found his way to the Italian Refugee Council which on as a matter of charity gave him some food and notified the Italian authorities that he should be returned to the UK. Nothing happened not least as the UK authorities failed to respond to communications from their Italian counterparts. Finally the Italian Refugee Council contacted its British counterpart which brought legal proceedings against the UK authorities for their action in sending Mr Ali to Italy and failing to bring him back. Finally after many months of delay and a number of hearings before a judge in the UK the UK authorities conceded liability and arranged for Mr Ali’s return to the UK. A damages claim for Mr Ali has not yet been settled. In the EURODAC system the body of the asylum seeker becomes increasingly separated from an essential element of his or her legal personality, the right to be present. The body takes on an identity and is followed via its fingerprint data across borders while that part of the body’s legal personality which gives the right to be present remains trapped in one jurisdiction.

Chapter 5

Aspects of Compatibility of Substantive EU Immigration Acquis with International and European Human Rights Law Nicholas Sitaropoulos

1. Introduction It seems that the EU Member States have entered a period of ‘maturation’ during which they have started to realise that the ‘Union’ may not work, in the long run, as just an inter-state association based solely on the principle of respecting and promoting bilateral or collective financial interests. Such a kind of a politico-legal construction would be doomed to fail if it did not streamline in its body and effectively apply the international and European principles/standards of human rights law. Indeed, the EU Member States nowadays seem to realise, even belatedly, the dire need of adopting a flexible immigration policy that would respect and protect also the human rights and fundamental freedoms, including those of third country nationals (TCNs). This crucial shift of policy has come to surface, in particular, through the Charter of Fundamental Rights of the Union (2000).1 Its Preamble (second paragraph) characteristically states that the Union ‘places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice’. At the same time, the Preamble of the Charter (fifth paragraph), now forming Part II of the Treaty establishing a Constitution for Europe, has reaffirmed ‘the rights as they result [inter alia] from international obligations common to the Member States, the European Convention on Human Rights…the Social Charters adopted by the Union and by the Council of Europe and the case law of the [Luxembourg and Strasbourg courts]’. On the basis of the above ‘constitutional’ provisions, one may no doubt conclude that the standards laid down by the ‘Union’ with regard to third country immigration law and policy are high. At the same time, more than five years after the entry into force of the Amsterdam treaty and the Tampere European Council, this novel, by 1 The Charter now constitutes Part II of the Treaty establishing a Constitution for Europe, OJ C 310/41, 16/12/2004.

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EC/EU standards, provisions beg the question whether the immigration acquis achieved so far by the EU lives up to the above-mentioned European standards. Aim of the present paper is to highlight certain substantive aspects of this acquis regarding TCNs’ family reunification and long-term resident TCNs, and to examine their compatibility with current, international and European human rights law. 2. Certain issues regarding the Compatibility of the EU Immigration acquis with International and European Human Rights Law The difficulty of reconciling EU Member States’ proclamations with politico-legal reality has been made clear in current Art. III-267.1 of the European Constitution where it has been enshrined the Union’s obligation to develop ‘a common immigration policy aimed at ensuring, at all stages, [inter alia] fair treatment of third-country nationals residing legally in Member States’. The motto of ‘fair treatment’ of TCNs residing legally in Member States originates in the October 1999 Tampere European Council Conclusions (paragraph 18)2. Even though a very welcome declaration, it makes one seriously worry, since one may reasonably deduct from its wording that TCNs who happen to live in Europe in an irregular manner should be completely outside of the protective ambit of ‘fairness’, in other words arguably, of the European rule of law. Do EU states think that the European rule of law is applicable also to these individuals? While the answer right now appears to be in the negative, this is, however, a question that remains to be clearly answered by the EU states in the immediate future. The EU immigration acquis so far is practically divided into three major sectors: (a) Admission; (b) Fight against illegal migration and (c) Return and readmission. The legal (binding) or quasi-legal acquis of the EU in all these sectors has been important albeit belated and slow in its creation. In the present contribution it is only possible to focus on some parts of the first sector of the acquis, regarding admission of TCNs, which constitutes also the emerging substantive EU immigration law. Particular attention is paid to the two ground-breaking, in many respects, Directives on family reunification (2003/86/EC)3 and on the long-term resident TCNs (2003/109/EC)4, both adopted in 2003.

2 Tampere European Council Conclusions, Paragraph 18: ‘The European Union must ensure fair treatment of third country nationals who reside legally on the territory of its Member States. A more vigorous integration policy should aim at granting them rights and obligations comparable to those of EU citizens. It should also enhance non-discrimination in economic, social and cultural life and develop measures against racism and xenophobia.’, text available at: http://ue.eu.int/ueDocs/cms_Data/docs/pressData/en/ec/00200-r1.en9.htm. 3 OJ L 251/12, 03/10/2003. 4 OJ L 16/44, 23/01/2004.

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2.1. Issues concerning family reunification of TCNs As regards the Directive on family reunification, it is, in fact, entitled ‘on the right to family reunification’. However, its substantive provisions demonstrate that this is rather a misnomer. This Directive has been adopted following long and very much heated debates among Member States for more than three years.5 There are four major provisions that raise serious questions of compatibility with international and European human rights standards: Art. 3.1, 4.1, 4.6 and 8. Before entering into details, it should be mentioned that a relevant action for annulment of most of these provisions was brought before the ECJ by the European Parliament (against the Council) on 22/12/2003 and is still pending.6 The first problematic provision is that of Art. 3.1. It provides that family reunification of TCNs will be subject to two major conditions: (a) firstly, that the sponsor has a residence permit for a period of validity of one year or more; (b) secondly, that the sponsor has, in addition, ‘reasonable prospects of obtaining the right of permanent residence’ in the host state. It is the second condition that raises the question by which standards a host state will judge that the sponsor’s prospects of obtaining permanent residence are reasonable. The vagueness of the second part of this provision lacks the qualities that such legislation should demonstrate, at least according to the established case law of the European Court of Human Rights (ECtHR). The ECtHR has established in its case law that legislation interfering with (limiting) human rights should fulfil three vital quality criteria. First, it should be accessible to the persons concerned. Secondly, it should be ‘foreseeable’, that is, formulated with sufficient precision to allow individuals to regulate their conduct, ‘if need be with appropriate advice’. The ECtHR has specified that from the foreseeability requirement7 follows that the domestic law should always set out the scope of administrative discretion and the manner of its application ‘with sufficient clarity’.8 The third criterion of law quality set down by the ECtHR is a direct outcome of the above considerations and relates to the availability in the national legal system of a review by an ‘independent authority’ of executive orders interfering with the

5 See, inter alia, R. Cholewinski, ‘Family reunification and conditions placed on family members: Dismantling a fundamental human right’, European Journal of Migration and Law, 4, (2002):271-290. 6 Case C-540/03, OJ C 47/21. See also Conseil de l’Union européenne, doc 5372/04, 16/01/2004. By her conclusions of 08/09/2005 the ECJ Advocate General, Ms Juliane Kokott, has found that Art. 8 of the Directive violates the right to protection of family life, mainly on the ground of that provision’s ‘ambiguity’, Affaire C-540/03, Parlement européen c. Conseil, esp. Paragraphs 97-105, http://curia.eu.int. 7 Al-Nashif v Bulgaria, judgment of 20/06/2002, www.hudoc.echr.coe.int, §121. 8 Ibid. Paragraph 119. The issue of lack of clarity of Art. 8 of this Directive was raised on 08/09/2005 by the ECJ Advocate General Juliane Kolkott, Affaire C-540/03.

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rights safeguarded by the Convention, such as the right to respect for family life9. This should, moreover, involve an adversarial proceeding in which the alien subject to removal should be entitled to be engaged. The above family reunification condition of ‘reasonable prospects of a permanent residence’ lacks precision, and, consequently, foreseeability, because it does not provide any specific objective or subjective criteria by which a state would be able to evaluate the existence of ‘reasonableness’ of the permanent residence prospects. As a consequence, it leaves the host states an unwarranted large margin of administrative discretion which, in actual immigration law practice, as is well known, borders upon, or equals, arbitrariness. The second problematic provision is that of the last sub-paragraph of Art. 4.1 of the same Directive. It allows derogation in cases involving a child aged over 12 years who arrives independently from the rest of his/her family. In these cases, a Member State may subject this child’s entry and residence with the rest of the family on verification that the child ‘meets a condition for integration’ provided for by the domestic legislation of the respective (potentially) host state. This provision raises two main problems of compatibility with contemporary human rights standards. First, it lacks precision that would allow TCNs to regulate their family life before or after entry into a host state. There is no established legal definition of integration in Europe today.10 The Directive on family reunification does not provide such a definition either. The ECJ Advocate General, in her conclusions of 08/09/2005 on the case European Parliament v Council11, appeared to have construed Art. 1712 and 5.513 of the family reunification Directive as providing the definitional contours of integration. It is not possible to elaborate on this point in the limits of the present contribution. However, it is to be noted that Art. 5.5 enshrining in the Directive the 9 The second and third conditions are so closely linked that they may in fact constitute conjunctively one sole condition, see Sunday Times v UK, judgment of 26/04/1979, Paragraph 49 Series A 30. The ECJ has also established clarity and precision as two basic characteristics that domestic legislation should possess when transposing Directives, ‘so that, where the directive is intended to create rights for individuals, the persons concerned can ascertain the full extent of their rights and, where appropriate, rely on them before the national courts’ see Commission v Kingdom of the Netherlands, Case C-190/90, judgment of 20/05/1992, European Court Reports 1992, p I-03265, Paragraph 17. See also Art. 1 of Protocol No. 7 to the European Convention on Human Rights (ECHR) regarding procedural safeguards relating to administrative expulsion of aliens. 10 See, inter alia, K. Groenendijk, ‘Legal concepts of integration in EU migration law’, European Journal of Migration and Law, 6, (2004): 111-126. 11 Opinion of Advocate General Juliane Kolkott, Affaire C-540/03. 12 Art. 17, ‘Member States shall take due account of the nature and solidity of the person’s family relationships and the duration of his residence in the Member State and of the existence of family, cultural and social ties with his/her country of origin where they reject an application, withdraw or refuse to renew a residence permit or decide to order the removal of the sponsor or members of his family.’ 13 Art. 5.5, ‘When examining an application [for entry and residence of family members], the Member States shall have due regard to the best interests of minor children’.

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principle of the child’s best interests may undoubtedly provide some guidance to the parameters of integration. On the other hand, the uncritical utilization of Art. 17 in this context is of serious concern for two main reasons: first this provision’s inherently repressive and exclusive nature, given that it is part of the Directive’s Chapter VII entitled ‘penalties and redress’, contravening the by definition preventive and inclusive nature of the notion of integration; secondly, the parameters of Art. 17 may not be regarded as sufficient if compared with the series of ‘guiding principles’ set down by the ECtHR14 and binding upon all EU Member States. The end result of this unsatisfactory legal situation would be, in practice, the placement of TCNs in the absolute discretion of Member States which are in fact left free to legislate, define and apply sociological notions such as integration and ability to integrate in any manner they deem appropriate. The second major objection to the last sub-paragraph of Art. 4.1 relates to the fact that it enables EU Member States to exclude from the enjoyment of their right to family life children aged between 12 and 18 for whom international and European human rights law have recognized a special protection regime. In this context, Art. 4.1 of the family reunification Directive, first of all, collides with a special UN treaty, the Convention on the Rights of the Child (UN CRC- 1989)15, ratified by all EU Member States. The UN CRC protects, in principle, all children below the age of 18 years. It contains specific and clear provisions (such as Art. 9, 10, 16) relating to contracting States’ negative and positive obligations towards children. In particular, States parties to the UN CRC are obliged to respect a child’s right to preserve family relations and family unity as well as not to interfere unlawfully with a child’s family. Art. 9.1, in particular, prescribes States parties’ obligation to ‘ensure that a child shall not be separated from his or her parents against their will’16, unless such 14 See Keles v Germany, ECtHR judgment of 27/10/2005, www.hudoc.echr.coe.int, where the Court cited the relevant guiding principles that a State should consider before disrupting an alien’s family life by exclusion them from its territory following an offence: paragraph 57: ‘…: The nature and seriousness of the offence committed by the applicant; the length of the applicant’s stay in the country from which he or she is to be expelled; the time elapsed since the offence was committed and the applicant’s conduct during that period; the nationalities of the various persons concerned; the applicant’s family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple’s family life; whether the spouse knew about the offence at the time when he or she entered into a family relationship; whether there are children in the marriage, and if so, their age; and the seriousness of the difficulties which the spouse is likely to encounter in the applicant’s country of origin’; paragraph 58: ‘In addition, the Court will also take into account the particular ties which these immigrants have developed with the host country [if they have spent there] most of their life’. 15 UN GA Resolution 44/25, text available at: http://www.ohchr.org/english/law/crc. htm. 16 Art. 9.1 reads: ‘States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review

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separation is necessary for the child’s best interests. As a consequence, the possibility of forced separation provided for by the Directive, without the state authorities being expressly and absolutely bound by the principle of the best interests of the TCN children (a fundamental human rights principle which is subdued, in effect, by the EU Directive17) is in contravention with international human rights law. Moreover, Art. 4.1 of the Directive arguably collides directly with Art. 8 of the European Convention on Human Rights (ECHR), right to respect for private and family life, as interpreted to date by the ECtHR. The relevant judgments of the ECtHR so far have been casuistic, allowing a large margin of appreciation to host states in their decision-making regarding permits of entry for family reunification reasons. More recent case law, however, seems to indicate that in cases where an immigrant finds him/herself legally settled in a host state, they could effectively invoke Art. 8 ECHR for facilitating the entry of minor children, and thus preserving family life and unity. In an admissibility decision of 2000 the ECtHR was particularly clear in this respect, stating that: ‘…in cases where a parent has achieved settled status in a country and wants to be reunited with her or his children who, for the time being, have been left behind in their country of origin, it may be unreasonable to give the parent the choice between giving up the position which she/he has acquired in the country of settlement or to renounce the mutual enjoyment by parent and child of each other’s company which constitutes a fundamental element of family life. The issue must therefore be examined not only from the point of view of immigration and residence, but also with regard to the mutual interests of the applicant and her minor children.’18

determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.’ 17 It is to be noted that, contrary to the UN CRC where the best interests of the child are primordial and binding, Art. 5.5 of the family reunification Directive reads as follows: ‘When examining an application, the Member States shall have due regard to the best interests of minor children’, emphasis added. Restrictive provisions such as that of Art. 4.1, last subparagraph, in effect, negate any child protection effect that Art. 5.5 had been intended to have in this context. They also contradict and tend to deprive of useful effect the general provision of Art. 3.4 of the same Directive, according to which the Directive is ‘without prejudice to more favourable provisions’ of, inter alia, international human rights treaties. 18 P.R. v The Netherlands, admissibility decision, 07/11/2000, p. 6 in fine. See also Chandra and others v. The Netherlands, admissibility decision, 13/05/2003; Sen v. The Netherlands, judgment of 21/12/2001; Tuquabo-Tekle and others v. The Netherlands, judgment of 01/12/2005 (www.hudoc.echr.coe.int). In the Sen and Tuquabo-Tekle cases the ECtHR found that The Netherlands had violated Art. 8 ECHR by refusing to allow the reunification of a 9 and a 15 year-old TCN child, respectively, with their families lawfully settled in The Netherlands and with children born there and of Dutch nationality.

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On the same grounds may be founded objections to the ‘lawfulness’ of Art. 4.6 and 8 of the family reunification Directive. Art. 4.6 provides for another possible derogation, enabling EU Member States to demand that the applications concerning family reunification of minor children be submitted before the age of 15, as provided for by the respective domestic legislation. Thus, minor children between 15 and 18 may be excluded from reunification with their families, in violation, inter alia, of the aforementioned UN CRC. Finally, Art. 8 of the Directive seems to give the coup de grâce to the TCNs’ right to family reunification. It adds one more exception to the Directive, allowing states to ‘take into account their reception capacity’ and thus prescribe that a sponsor should wait for a period of up to three years until their reunification with their family members. It is to be noted that according to the European Committee of Social Rights (European Social Charter), while a period of waiting for one year is acceptable under Art. 19.6 of the Charter, a waiting period of three years is not regarded to be in conformity with the Charter.19 2.2. Issues regarding long-term resident TCNs The second, major ground-breaking Directive is 2003/109/EC on the status of TCNs who are long-term residents. This is a much more positive piece of secondary legislation, part of the EU immigration acquis, since it seems to have seriously heeded to and incorporated European and international human rights law standards. This Directive covers TCNs who have resided legally and continuously in a Member State for five years before submitting the relevant long-term resident application. It was a Directive very long-awaited by, at least, thousands of alien immigrants residing in EU states without having attained a secure legal status. Art. 11 of this Directive provides for the enjoyment, in principle, by alien longterm residents of equal treatment with nationals as regards a series of fundamental social and economic rights, such as access to employment and self-employed activity, education and vocational training, freedom of association etc. The incorporation of the relevant ECtHR case law and standards is evident particularly in Art. 12.3 of this Directive, which provides for a special regime of protection against expulsion for these TCNs. Thus, duration of residence, age of the person concerned, consequences of the expulsion for this person and their family members, links with country of residence or absence of links with country of origin, are all criteria that should be taken into account before any decision of expulsion, as prescribed, inter alia,

19 European Social Charter, Digest of the Case Law of the ECSR, Strasbourg, Council of Europe, November 2004, at 81 (www.coe.int/T/E/Human_Rights/Esc/). By her conclusions of 08/09/2005, the ECJ Advocate General has found that Art. 8 of the Directive violates the right to protection of family life, mainly on the ground of that provision’s ‘ambiguity’ (Affaire C-540/03).

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by ECHR20 as well as by the International Covenant on Civil and Political Rights (ICCPR), also ratified by all EU Member States21. However, Directive 2003/109/EC contains provisions allowing Member States, similarly to Directive 2003/86/EC, a too wide margin of appreciation in granting to TCNs long-term resident status by applying nebulous and undefined notions such as integration (see, e.g., Art. 5.2 providing that Member States may require TCNs to ‘comply with integration conditions, in accordance with national law’).22 Issues of collision with international and European family law23 may also arise in the context of Art. 16.5 of Directive 2003/109/EC: it provides for the application of all the provisions of the aforementioned reunification Directive in cases where a long-term TCN resident moves from one to another EU Member State and wishes to be joined by their members of their family that has not already been constituted in the first Member State. By contrast, in case where an alien long-term resident moves to a second Member State and his/her family has already been constituted in the first Member State, at least, all family members referred to Art. 4.1 of the family reunification Directive will be entitled to a reunification without any other limitation provided for by the above Directive. This temporal differentiation of treatment of TCN families results, in fact, into an unreasonable ‘penalisation’ of those TCNs who try to enjoy their human right to found a family and to family unity after moving from one to another EU Member State.24 However, despite the above problematic points, it may not be doubted that, compared to the family reunification Directive, the long-term resident Directive is a piece of secondary EU legislation whose preamble certainly contains much fewer points of disharmony with its substantive provisions and with contemporary human rights standards. 3. Conclusion In conclusion, it could not but be conceded that, overall, the substantive EU immigration acquis, as it stands today, constitutes a significant development of Member States’ efforts aimed at respecting and protecting human rights of TCNs in 20 See, for example, cases of Keles v. Germany, judgment of 27/10/2005, Radovanovic v. Austria, judgment of 22/04/2004, Jakupovich v Austria, judgment of 06/02/2003, Ciliz v The Netherlands, judgment of 11/07/2000 (www.hudoc.echr.coe.int). See also above section IIa, n. 16 and accompanying text. 21 UN GA Resolution 2200A (XXI), text available at: http://www.ohchr.org/english/law/ ccpr.htm. See case of Winata and Li v Australia, views of the Human Rights Committee, 16/08/2001 (http://www.unhchr.ch/tbs/doc.nsf). See also S. Joseph et al, ‘The International Covenant on Civil and Political Rights’, (Oxford, 2004), 2nd edition, pp. 587-621. 22 See above section IIa. 23 See previous two notes. 24 In addition, all the foregoing misgivings about the family reunification Directive would be applicable also to these cases.

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Europe. Particularly positive, for example, has been the inclusion in the European Constitution of the principle of fair treatment of legally resident TCNs, as well as of the Charter of Fundamental Rights. In this context may also be mentioned another new, significant Directive (2004/81/EC) on victims of human trafficking (belonging to the sector of the immigration acquis regarding the fight against illegal migration). It is hoped that the future accession of the ‘Union’ to the ECHR (as provided for by Art. I-9.2 of the European Constitution) will give much more flesh to these instruments. In any event, no one may now doubt that the ‘Union’ has started, even belatedly, to realise the existence of the human (rights) dimension of alien immigrants on its Member States’ territory. However, the relevant legislative efforts are still in their infancy. As mentioned above, there exist a number of serious divergences between some of the current substantive EU immigration legislation and international and European human rights law. This gap shows, at the same time, a regrettably grave discrepancy between Euro-Constitutional and Directive preambular declarations, and the politico-legal reality currently reigning in the EU, which is rather inspired by the raison d’Etat way of thinking and policy making. This has been made especially clear in the Hague Programme on Freedom, Security and Justice in the EU where ‘the security of the EU and its Member States’ and a ‘pragmatic approach’25 have obviously taken precedence over guaranteeing fundamental rights. Undoubtedly, the ‘fair treatment’, in other words, effective human rights protection, of TCNs pronounced by the newborn Constitution of Europe, still has a very long way to go until it is effectively transposed and applied by Member States.

25 See fourth paragraph of the Introduction to the Hague Programme and first paragraph of section II.1 respectively, OJ C 53/1-2, 03/03/2005.

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Chapter 6

Integration of Immigrants Versus Social Inclusion: A Typology of Integration Programmes in the EU Sergio Carrera

1. Introduction This paper examines the philosophies hiding behind the notion of ‘integration of immigrants’. What does integration of immigrants mean in liberal democracies? The vulnerabilities and uncertainties inherent to the nature of this concept will be critically addressed. It then provides an overview of integration programmes for immigrants in a selected group of EU Member States: Austria, Belgium, Denmark, France, Germany, Poland, Spain, the Netherlands and the United Kingdom. The main tendencies and common elements are widely assessed and broadly compared. As we will show, in the national arena there appears to be a distinct trend towards a ‘restrictive integration policy for immigrants’. Mandatory participation in integration programmes is now a regular part of immigration and citizenship legislation, and a precondition for having access to a ‘secure juridical status’. A nexus between immigration, integration and citizenship is becoming ‘the norm’ in a majority of the national legal systems. The artificial link between ‘the social inclusion of immigrants’ and ‘the juridical framework on immigration, integration and citizenship’ may at times raise human rights considerations, and endanger the inter-culturalism and diversity that are inherent to the nature of the EU. The last section will look at the evolving EU framework on integration of immigrants where a struggle is taking place in two parallel arenas regarding: First, the competence over this field - national versus European; and second, the overall approach which diverges substantially between the one presented under the EU framework on integration and the so-called common basic principles (soft policy approach), and the actual legal acts product of a common immigration policy (hard policy approach). 2. Conceptualizing Integration of Immigrants? A critical vision of the notion of integration of immigrants is necessary in order to globally understand the evolution this word is undergoing within the EU. As Joppke

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and Morawska argue,1 the category of ‘integrating migrants’ rests on the subjective idea of an already integrated receiving society that is composed by citizens who are also integrated and which form a whole. In their view, any vision of unity or any discourse advocating integrated societies is inherently subjective and false. Today any attempt to conceptualize national identity is open to subjective interpretations of ‘us’ and ‘our’ supposed identity and social values.2 Into what exactly are immigrants supposed to ‘integrate’ or ‘incorporate’? Traditional stereotypes of how to be ‘national’ are taken as the model test to evaluate if ‘the Other’ is, or can successfully be, wellintegrated into a particular conception of community. These nationalistic claims also call for the necessity to ‘normalize’, ‘modernize’, ‘civilize’ and ‘assimilate’ into their societal vision of themselves those not holding their nationality. Defending the essence of European culture from aliens is also at the heart of these illiberal claims. Looking back at our recent history, this is a very worrying political game which on the one hand might put at risk liberty, liberal democracies and the rule of law, and on the other may foster the emergence of social (in)cohesion. Our societies are increasingly experiencing a wide variety of life styles that enrich and diversify profoundly the very concept of community. They also call into question conservative claims of ‘we’ and a ‘homogeneous society of shared cultural values’ which needs to be defended against a supposed threat posed by those negatively labelled as ‘aliens, immigrants and the non-modern’ who come from the outside.3 Many EU states need to go through a painful process of readjusting their own conceptualization of their perceived national identities and values from one that emphasizes a mythical national homogeneity to another one that is heterogeneous, diverse and intercultural.4 1 C. Joppke and E. Morawska, ‘Integrating Immigrants in Liberal Nation-States: Policies and Practices’, in C. Joppke and E. Morawska (eds), Toward Assimilation and Citizenship: Immigrants in Liberal Nation-States, (Basingstoke, 2003). 2 S. Carrera, ‘Integration as a Process of Inclusion for Migrants? The Case of Longterm Residents in the EU, in H. Schneider (ed.), Migration, Integration and Citizenship: A Challenge for Europe’s Future, (Maastricht, 2005), pp. 109-138. 3 E. Balibar, We, the People of Europe, Reflections on Transnational Citizenship, (Princeton, 2004). 4 R. Erzan and K. Kirisçi, ‘Turkish Immigrants: Their Integration within the EU and Migration to Turkey’, Turkish Policy Quarterly, (2004): 61-68. See also the Parliamentary Assembly Recommendation on ‘The concept of nation’, 1735/2006, of 26 January 2006, which says in point 12: ‘The Assembly believes it necessary to strengthen recognition of every European citizen’s links with his identity, culture, traditions and history, to allow any individual to define himself as a member of a cultural ‘nation’ irrespective of his country of citizenship or the civic nation to which he belongs as a citizen, and, more specifically, to satisfy the growing aspirations of minorities which have a heightened sense of belonging to a certain cultural nation. What is important, from both a political and a legal standpoint, is to encourage a more tolerant approach to the issue of relations between the State and national minorities, culminating in genuine acceptance of every individual’s right to belong to the nation which he feels he belongs to, whether in terms of citizenship or in terms of language, culture and traditions.’

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As Guild points out,5 the hallmark of the categorization of immigrants and national culture is the integration discourse. There appears to be a duty on the part of those falling within the juridical category of immigrant to abandon some of their cultural expression and identity to become more like the receiving community sees itself. Guild continues by arguing that the linkage between integration and poverty is apparent. If immigrants do not claim State benefits in certain forms, such as income or family support, then they are not targeted by integration programmes and the consequences of failure to comply. Indeed, as we will see below, economic status and the degree of financial independence is a key factor determining who is subject or not to mandatory integration programmes. Modern tendencies, approaches and policies at the national arena show that what is behind the category of integration is in fact mandatory assimilation or acculturation into the receiving society. In some important cases, the non-nationals are under the rigid mandate to integrate in order to be treated as ‘members of the club’. Integration becomes the non-territorial border dividing the ‘inside’ and the ‘outside’, who is in and who is out, who has rights and who has only obligations. Agamben6 has assessed the concept of the modern state sovereignty and its power to exclude and include the individual through the enactment of nationality laws which provide who is included, and therefore equalized in terms of rights and freedoms linked to those qualified as the citizens of the State, and who is excluded, and hence falling outside of the sovereignty and the privileges attached to it, that is being an immigrant. In his view, the States enact citizenship laws because of their sovereignty, and through this power they exclusively decide who is ‘us’ and who is ‘them’. Integration is becoming another tool in the hands of the State to force a process of nationalization by which any individual (outsider) aiming to be included in its society will have to mutate into the traditional concept of ‘us’, and will be obliged to become more like the citizens in order to be treated fairly and equally. This modern mutation involves sacrificing her/his global identity. Therefore integration is by nature antithetical to diversity and inter-culturalism, which are constitutive elements of the EU,7 and which will be increasingly so. Part of the sociological literature on immigration and on the integration of immigrants tends to forget that in our modern times security continues taking predominance for the State. Similar to the field of immigration, the integration of immigrants is experiencing an increasing securitization process by which it has been artificially transformed into a security problem. The lack of integration is conceived as a threat to social cohesion and stability. The category of immigration 5 E. Guild, ‘Cultural and Identity Security: Immigrants and the Legal Expression of National Identity’, in E. Guild and J. Van Selm (eds), International Migration and Security: Opportunities and Challenges, (Oxford, 2005). 6 G. Agamben, Homo Sacer: Sovereign Power and Bare Life, (Standford, 1998). 7 Article 151.1 of the Treaty establishing the European Community (TEC) provides that ‘The Community shall contribute to the flowering of the cultures of the Member States, while respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore’.

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and the juridical label of ‘foreigner’ are often uncritically linked to these ‘integration problems’. These approaches take for granted that those not holding the nationality of the receiving state are the only ones facing problems of inclusion, identity and participation in the national system. The integration discourse overfeeds the link between immigration and (in)security. In a time where a new global enemy has been found in international terrorism, the lack of integration of immigrants has been placed as a root cause for the later to exist and survive ‘inside our wealthy societies’.8 The dramatic events of 9/11, 11th March and 7th July have been often (mis)used to reinvigorate ‘exceptionally’ the security agenda and political priorities at the national and the transnational (EU) level in the so-called fight against terrorism. Less attention has been paid however to the impact of this security trend and measures on human rights and civil liberties (liberty).9 The lack of integration of immigrants is intertwined with a security threat, not only for the culture and identity of the domestic community, but also for the safety of liberal democracies. The security continuum between immigration and (in)security has been rightly criticized by Bigo.10 The negative linkage created between international terrorism, organized crime and irregular immigration is however not a static process. It is under continuous transformation including now the integration of immigrants as one of its key ingredients. This securitarian shift is also having a direct impact and influence into the EU dimension and the EU decision-making process in the field of immigration policy and the fight against terrorism. The lack of integration is perceived as a cause of radicalization and acts of political violence qualified as terrorism. This perverse continuum endangers human rights and liberty in general, and puts the immigrant into a highly vulnerable position towards the State and the receiving society. Various research have shown that this often leads to a situation whereby the non-national (that is immigrant) is encapsulated into a category of

8 For an example on how the integration of immigrants and security are merged in the official discourse, see Commission Communication concerning Terrorist recruitment: Addressing the Factors contributing to Violent Radicalization, COM(2005) 313 final, (Brussels, 21 September 2005). Point 2.4.1 on integration says ‘In the majority of cases, third-country nationals have integrated well within the Member States of the EU. However, if integration fails it can provide fertile ground for violent radicalization to develop. As discussed in the Annex, alienation from both the country of origin and the host country can make it more likely for a person to look for a sense of identity and belonging elsewhere such as in a powerful extremist ideology.’ 9 T. Balzacq and S. Carrera, ‘The EU’s fight against international terrorism: Security problems, insecure solutions’, CEPS Policy Brief, NO. 80, (2005). See also D. Bigo and S. Carrera, ‘From New York to Madrid: Technology as the ultra-solution to the permanent state of fear and emergency in the EU’, CEPS Commentary, (2004). 10 D. Bigo, ‘The European internal security field stakes and rivalries in a newly developing area of police intervention’, in Malcolm Anderson and Monica den Boer (eds), Policing across National Boundaries, (London, 1994), p. 164.

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suspect, criminal or even terrorist.11 The securitization of integration of immigrants needs to be condemned and deplored by stating as a premise that an immigrant is not a criminal, a threat or a security issue, and by acknowledging the multiplicity of factors which take part in any social conflict, instability and acts of political violence at national and transnational level. The notion of integration does not involve a process of social inclusion of immigrants, but it has rather become a juridical and policy mechanism of control by which the State may better ‘manage’ who enters and who is included inside its territory.12 Integration has become a tool for the management of immigration. The process by which the social integration of immigrants is introduced into a legal framework of immigration reinforces the restrictive nature of the latter. Integration hides the actual conventional setting of assimilation, incorporation or, in its more radical expression, acculturation philosophy. Current policy, institutional and juridical frameworks in some EU Member States demand from the non-national to abandon her/his own roots in favour of the dominant mainstream societal model and identity of the receiving State. Only in this way, the State will include the non-citizen, partly or potentially fully, into the privileged status celebrated by the citizen. The integration discourse continues to be (mis)used by the political elite to justify, or pass through the back door, restrictive immigration policies which aim, in fact, to limit immigration in their respective national realm. While the category integration is being used as implying more positive connotations than former categorizations like assimilation or acculturation, in reality the latter dominates the actual setting of developments. As Brubaker has pointed out, we are experiencing a ‘return to assimilation’.13 In his view there has been a change in perspective from a focus on persisting difference to an increasing focus on commonalities and integration. While Brubaker says that the shift towards assimilation does not presage a ‘radical reversal’, careful attention will need to be paid for it not to ever happen. As we have experienced in Europe’s recent history the dividing line between radical and soft nationalism is dangerously thin, and an extreme position is not so difficult to be reached especially in the discourses and politics of belonging. The increasing establishment of a juridical framework on the integration of immigrants may in fact have counterproductive effects and play a negative role by preventing the social inclusion of ‘the Other’. It is time to openly acknowledge that the social conflicts and (in)cohesion that some EU States are experiencing might be in fact product of the perpetuation of the conservative notion of ‘we’ and of the restrictive policy and legal regimes on immigration. The latter are (mis)using 11 E. Brouwer, P. Catz and E. Guild, Immigration, Asylum and Terrorism: A Changing Dynamic in European Law, (Nijmegen, 2003). 12 For a study of the concept of integration see A. Favell, Philosophies of Integration: Immigration and the Idea of Citizenship in France and Britain, (London, 1998). 13 See R. Brubaker, ‘The return to assimilation? Changing Perspectives on Immigration and its Sequels in France, Germany and the United States’, in C. Joppke and E. Morawska (eds), Toward Assimilation and citizenship: Immigrants in Liberal Nation States, (Houndsmill, 2003), pp. 39-58.

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integration as a tool to put into practice a restrictive immigration, asylum, free movement and citizenship policy, instead of providing a comprehensive framework for the social inclusion of immigrants and the prevention of discrimination.14 This paper aims to contribute to the dismantlement of the misleading visions conceiving and fostering the idea of societies as unitary and homogeneous, and any discourse advocating for the necessity for them to continue as intact and pure. While referring to the process by which a non-national is given access to the multiplicity of societal sectors in the receiving state, we will rather talk about the compendium of processes of inclusion tackling social exclusion, un-equal treatment and discrimination.15 These processes would seek to guarantee the social inclusion of the individual not holding the nationality of the receiving society, granting her/ him equal rights to those holding the privilege status of citizen. Facilitating equality of treatment and full access to a set of economic, political, social and cultural rights needs to be considered as the guiding start in any debate, discourse and policy output in these fields. Indeed, as Kostakopoulou has rightly expressed, ‘the real test of the European integrative project is the determination to build a democratic, inclusive and heterogeneous European polity which gives these values explicit political as well as legal status’.16 3. Integration Programmes in a Selection of EU Member States: Similarities and Vulnerabilities This section presents the main tendencies and vulnerabilities commonly shared in the integration programmes for immigrants in a selection of Member States of the EU: Austria, Belgium, Denmark, France, Germany, Poland, Spain, the Netherlands and the UK. It especially focuses on the scope (personal and material) and the nature of these programmes, as well as on their implications (positive or negative) for the position of the immigrant.

14 For an assessment of the particular case of France see C. Wenden (2005), ‘Conceptual and Political Approaches to Integration: The French Perspective’, in R. Süssmuth and W. Weidenfeld (eds), Managing Integration: The European Union’s Responsibilities towards Immigrants, (Migration Policy Institute and Bertelsman Foundation, 2005). 15 S. Carrera, ‘Integration as a Process of Inclusion for Migrants? The Case of Longterm Residents in the EU’, in H. Schneider (ed.), Migration, Integration and Citizenship: A Challenge for Europe’s Future, (Maastricht, 2005), pp. 109-138. 16 T. Kostakopoulou, ‘Invisible Citizens? Long-term Resident Third-Country Nationals in the EU and their Struggle for Recognition’, in R. Bellamy and A. Warleigh (eds), Citizenship and Governance in the European Union, (London, 2001), pp. 180-205.

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3.1 National models and programmes on the integration of immigrants in the EU The academic literature has often distinguished among three main national models on integration of immigrants.17 The first is the multicultural model, which is based on respect and protection of cultural diversity and aims at explicitly guaranteeing the identity of the immigrant community. Countries that have traditionally followed this model are the Netherlands and Sweden. The second model, the assimilationism model (also called the republican or universalistic model), has equality at its root, but only for those few individuals who fall within the privileged category of citizens. It is based on the complete assimilation of the immigrant into the dominant traditional national values and perceived common identity. France is the classic example of this approach.18 Finally, there is the separation or exclusionist model, which is characterized by restrictive and rigid immigration legislation and policies. In this context, ‘rigid’ refers mainly to the legal conditionality that must be satisfied in order to have access to and reside in the territory. It consists of policies aimed at artificially maintaining the temporary character of an immigrant’s settlement. Germany, Switzerland and Belgium fall within this model. In our view, these traditional models of integration no longer exist. Societies and their public philosophies towards immigrants and their integration are continuously changing. National models and integration programmes have often been rendered moot by evolving contemporary realities, political and economic priorities and dramatic events. Also, the content and structure of these programmes vary widely in terms of their scope, goals, target groups and institutional actors involved. Member States differ considerably in their approaches and political priorities vis-à-vis the integration of migrants. This diversity mainly derives from the different historical backgrounds, societal models and patterns and traditions of migration flows.19 The dynamic nature of national legislation and programmes on the integration of immigrants makes any comprehensive comparative analysis in this field difficult. Over the last years, new immigration and integration juridical frameworks have been put in place, or are being debated, in most of the EU Member States. In Germany, for instance, a new Immigration Act (Zuwanderungsgesetz) regulating the entry and 17 H. Entzinger and R. Biezeveld, Benchmarking in Immigration Integration, European Research Centre on Migration and Ethnic Relations, Erasmus University of Rotterdam (Rotterdam, 2003). 18 For an analysis of the French citizenship and integration policy, see C. Bertossi, ‘Politics and Policies of French Citizenship, Ethnic Minorities and the European Agenda’, in A. Górny and P. Ruspini (eds), Migration in the New Europe: East-West Revisited, (Basingstoke, 2004). See also C. de Wenden (2005), ‘Conceptual and political approaches to integration: The French perspective’, in R. Süssmuth and W. Weidenfeld (eds), Managing Integration: The European Union’s Responsibilities towards Immigrants, (Washington, 2005). 19 For a discussion on the experience and policies of different countries with integration see R. Penninx, ‘Integration of Migrants: economic, social, cultural and political dimensions’, Background Paper for the European Population Forum 2004: ‘Population Challenges and Policy Responses’, held in Geneva, January 12-14, 2004.

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stay of immigrants entered into force on 1 January 2005. Austria has also adopted a new Settlement and Residence Act, which entered into force on 1 January 2006 and regulates long-term residence and labour migration in conjunction with the Alien’s Employment Act (Ausländerbeschäftigungsgesetz, 1975). As from 1 January 2004 new versions of the Act on Integration of Aliens in Demark, Act No. 643 of 28 June 2001, and Act on Danish Courses for Adult Aliens and Others have entered into force. In the Netherlands, the Newcomers Integration Act (Wet Inburgering Nieuwkomers, WIN, 1997) is undergoing revision in the Parliament. Similar situations can be found in other Member States, where legislative proposals providing a brand new juridical framework on integration of immigrants are under consideration. Spain, for example, has been elaborating a framework for integrating immigrants since the election of the new Spanish Government in March 2004, and a new strategy on integration is expected to be officially presented during 2006. Integration programmes tend to share some very general elements, such as language classes, civic courses familiarising immigrants with the receiving country’s norms, history, values and cultural traditions, and labour market orientation/vocational training. In Germany, the new Immigration Act provides a compulsory integration course consisting of a language course aimed at giving participants a good command of German together with an orientation course in which immigrants learn about the German legal system, history and culture.20 The stated aim of the integration policy is to make the newcomer autonomous in everyday life. Knowledge of the German language is seen as the key to integration, in order to enable migrants to participate in the social, economic and cultural life. The local foreigners-authority will evaluate the immigrant’s language competence and decide if he/she is liable to participate in the integration programme. This would consist of a language course made to fit the individual’s skills and knowledge. The language course will be divided into two periods: 300 hours for acquiring basic language abilities and another 300 hours for advanced learning. An additional 30 hours will be provided for orientation to the culture and society.21 The State’s integration policy is supplemented by a system

20 New Immigration Act (Zuwanderungsgesetz), and its Residence Act (AufenthG), regulate the entry and stay of immigrants in Germany. It entered into force on 1 January 2005. Unified language policy for third country nationals (Gesamtsprachkompetenz) became effective in January 2003. See also the Federal law on residence of foreigners (Aufenthaltsgesteztes) of 30 June 2004 and the Federal ordinance on integration courses for foreigners and late-settlers (Integrationskurs- verordnung-IntV) of 13 December 2004. See N. Cyrus and D. Vogel, ‘Germany’, in J. Niessen, Y. Schibel and C. Thompson (eds), Current Immigration Debates in Europe: A Publication of the European Migration Dialogue, Migration Policy Group, (Brussels/Warsaw, 2005). 21 International Centre for Migration Policy Development, Integration Agreements and Voluntary Measures: Compulsory or Voluntary Nature – Comparison of compulsory integration courses, programmes and agreements and voluntary integration programmes and measures in Austria, France, Germany, the Netherlands and Switzerland, (Vienna, 2005).

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of social counselling for immigrants during their first three years of residence in Germany.22 In Belgium (Flanders),23 following the Civic Integration Decree of the Flemish Government the first step of the integration programme is an audit of the third country national at the reception office (onthaalbureau), which determines eligibility to participate in the integration programme.24 The Decree presents two different routes for the integration of newcomers to take place. The first one is a ‘training/educational programme’ composed of a Dutch language course, social orientation and career guidance which should facilitate the way towards the educational system and employment. The second route consists of linking the immigrant with the different institutions and actors of common law (or one-on-one study path guidance).25 A rather similar case might be seen in the Netherlands, where the integration course foreseen by the Newcomers Integration Act (WIN) is mainly focused on proficiency with the Dutch language and social orientation.26 These two are key preconditions for full social participation. The civic integration programme/course is divided in three parts: an educational part, a general programme coaching and social counselling.27 The new Law on Residence and Settlement in Austria divides the so-called ‘integration agreement’ (integrationsvereinbarung) into two modules, the first dealing with literacy and the second focusing on language training and social, economic and cultural aspects.28 Further, two other countries among the ones under analysis 22 Federal Office for Migration and Refugees/Bundesamt für Migration und Flüchtlinge (2005), ‘The Impact of Immigration on Germany’s Society’, in Berlin Institute for Comparative Social Research (eds), The Impact of Immigration on Europe’s Society: A Pilot Research Study undertaken by the European Migration Network, (Berlin, 2005). Federal Office for Migration and Refugees/Bundesamt für Migration und Flüchtlinge, Concept for a Nationwide Integration Course (retrievable from www.bamf.de). 23 There is no nation-wide strategy of integration in Belgium. The communities or the regions are the ones holding most of the competences dealing with this field. The similarities in the ‘integration philosophy’ advocated by Belgium (Flanders) and the Netherlands are very interesting, especially regarding the nature, objectives and targeted/exempted groups in the integration programmes. 24 The Civic Integration Decree of the Flemish Government of 28 February 2003 came into force on 1 April 2004. (Decreet betreffende het Vlaamse inburgeringsbeleid). 25 S. Gsir, M. Martiniello, K. Meireman and J. Wets, ‘Belgium’, in J. Niessen, Y. Schibel and C. Thompson (eds), Current Immigration Debates in Europe: A Publication of the European Migration Dialogue. 26 See the text book used to prepare the ‘integration exam’ in the Netherlands, I. Van Baalen and W. Coumou, Denkend aan Holland: Een programma Maatschappij-oriëntatie voor nieuwkomers, (Utrecht, 2004). 27 V. Marinelli, ‘The Netherlands’, in J. Niessen, Y. Schibel and C. Thompson (eds), Current Immigration Debates in Europe: A Publication of the European Migration Dialogue. 28 I. Michalowski (2004), An Overview on Introduction Programmes for Immigrants in Seven European Member States, Adviescommissie voor Vreemdelingenzaken (The Hague, 2004).

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apply the so-called ‘integration contract’ to formalize the obligation between the immigrant and the State as regards integration, namely Denmark and France: In Denmark, the content and scope of the integration programme are provided by an ‘Integration Contract’ concluded between the immigrant and the municipality where s/he resides. The contract is based on the immigrant’s background with the general goal being ‘the introduction into the labour market or relevant education’. In this line, the programme is composed by language courses that include a basic social and cultural orientation element and, since 1st January 2004, a series of offers of ‘active involvement’, such as vocational training and other labour-market oriented measures. This part comprises counselling and upgrading, job training with a private or public company, employment with a wage supplement (the immigrant is hired by a company receiving a supplement to do so). The total duration of the programme is of 37 hours per week during three years. Danish municipalities must conclude an integration contract with those under the scope of the law (newcomers and refugees) within a month from their registration.29 The integration contract (contract d’accueil et d’integration, CAI) in France seeks equally to formalize the obligation between the immigrant and the State.30 The latter will undertake to provide quality support services to newcomers while the latter will have to complete training integration commitments consisting of: language course, vocational training course, civic and social orientation course.31 The integration contracts, which last for one year, will specify the language courses (between 200 and 500 hours) covering a one-year period and renewable twice (a total of three years). During this time the newcomer will have to improve his/her language ability by one level at the minimum, but otherwise to the level required for naturalization.32

29 See the following official documents: Ministry of Refugee, Immigration and Integration Affairs, Immigration and Integration Practices in Denmark and Selected Countries, (Copenhagen, 2004) (available at: http://www.inm.dk). Ministry of Refugee, Immigration and Integration Affairs, A New Chance for Everyone: The Danish Government’s Integration Plan, (Copenhagen, 2005), (available at http://www.inm.dk). Sopemi report – Denmark (2005), OECD (retrievable from www.inm.dk). The Danish Government, The Government’s Vision and Strategies for Improved Integration: Summary of Report submitted by the Group of Ministers on Improved Integration, (Copenhagen, 2003). The Ministry of the Interior, The Integration of Foreigners into Danish Society, (Copenhagen, 2001), (available at: http://www. inm.dk). 30 Law on the control of immigration and residence of foreigners in France, Loi relative à la maîtrise de l’immigration et au séjour des étrangers en France et á la nationalité, (MISEFEN), n° 2003-1119, 26 November 2003. 31 See Ministère de l’emploi, de la cohésion sociale et du logement (http://www. cohesionsociale.gouv.fr). Ministre de l’Intérieur (www.interieur.gouv.fr). Prime Minister/ Government Portal (http://www.premier-ministre.gouv.fr). 32 See International Centre for Migration Policy Development, ‘Integration Agreements and Voluntary Measures: Compulsory or Voluntary Nature’.

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On the other hand, it is important to acknowledge that a number of EU Member States do not yet have in place a nation-wide integration policy for immigrants. For example, the Autonomous Communities hold the main competences on the social integration of immigrants in Spain.33 A series of ‘integration plans’ are being implemented by Cataluña, Madrid and Andalucía, which have the larger foreign populations. Since 2001, they have applied ‘integration plans’ aimed at promoting the principle of equal treatment, respect for inter-culturalism and non-discrimination and the protection of cultural plurality.34 These plans provide orientation and juridical guidance, education, language courses, as well as support by the social services.35 Poland is also lacking a national legal and policy framework on the integration of immigrants. Only a few categories of immigrants have access to ‘integration programmes’, for example recognized refugees and immigrants of Polish ethnicity. Refugees are entitled to receive Polish language instruction, vocational training and subsistence support. Ethnic Polish immigrants have similar entitlements in addition to community support, but their repatriation and subsequent integration are subject to the availability of funds.36 3.2 The mandatory nature of integration programmes and courses In those Member States where a nation-wide juridical and policy framework on integration does exist, there seems to be an increasing trend towards conceiving integration as an obligation by the immigrant in order to be included and to have access to the different societal dimensions of the receiving State. The mandatory character of integration programmes has progressively become the rule in a majority of EU-15 states.37 Integration is becoming a one-way process by which the responsibilities or duties are placed exclusively on the immigrant’s side. The non-nationals are forced to integrate in order to have access to a secure juridical status.

33 A. Serra, P. Mas, A. Xalabarder and G. Pinyol, ‘Spain’, in J. Niessen, Y. Schibel and C. Thompson (eds), Current Immigration Debates in Europe: A Publication of the European Migration Dialogue. See also J. Arango and R. Sandell, ‘Inmigración: Prioridades para una Nueva Política Española’, Informes Elcano, Real Instituto Elcano de Estudios Internacionales y Estratégicos, (Madrid, 2004). 34 For a comparative and comprehensive study of the different integration strategies advocated by these three Spanish Autonomous Communities see M. Pajares, ‘La Integración Ciudadana: Una Perspectiva para la Inmigración’, Icaria, Antrazyt no. 216, (2005). 35 The Catalan Government has recently adopted the new ‘Citizenship and Immigration Programme’ (Pla de Ciutadania i Immigració), 2005-2008, Generalitat de Catalunya, Departament de Benestar i Família, Secretaria per a la Immigració. 36 K. Iglicka, P. Kazmierkiewicz and A. Weinar, ‘Poland’, in J. Niessen, Y. Schibel and C. Thompson (eds), Current Immigration Debates in Europe: A Publication of the European Migration Dialogue. 37 International Centre for Migration Policy Development, ‘Integration Agreements and Voluntary Measures: Compulsory or Voluntary Nature’.

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In most Member States, the notion of integration as incorporated in their respective national immigration laws is restrictive in nature, mostly related to cultural aspects (courses on the acquisition of the language, history, culture and civic and social aspects of the receiving country).38 It bears little resemblance to the ‘fair and equal treatment paradigm’ emphasized at the Tampere European Council of 1999,39 which placed, in a rather utopian way, social inclusion of immigrants, fair treatment and equality, non-discrimination and respect for diversity, at the heart of a common immigration policy in the EU.40 The majority of Member States under study have introduced mandatory, or forced, integration programmes. In particular, Germany, the Netherlands, Austria, Belgium (Flanders) and Denmark currently apply obligatory integration courses, which must be successfully completed before the immigrant has the right to residency and has access to social and welfare benefits (that means access to a secure juridical status in the receiving society). In particular, the Austrian New Settlement and Residence Act establishes the mandatory nature of integration for those third country nationals who wish to obtain a residence permit and are included in the scope of the programme.41 The nature of the integration programmes is also mandatory in the Newcomers Integration Act (WIN) of the Netherlands where the integration course must be successfully completed in order to obtain a right to residency.42 In the same vein, the Civic Integration Decree of the Flemish Government in Belgium conceives integration as mandatory for all newcomers being registered in a Flemish municipality. Participation is mandatory if immigrants are to have access to social and welfare services. Similarly, the new 38 Pajares, ‘La Integración Ciudadana: Una Perspectiva para la Inmigración’. 39 Presidency Conclusions of the Tampere European Council, 15-16 October 1999, SN 200/99, Brussels, paragraphs 18 and 21. In particular, paragraph 18 stipulates that ‘The European Union must ensure fair treatment of third-country nationals who reside legally on the territory of its Member States. A more vigorous integration policy should aim at granting them rights and obligations comparable to those of EU citizens. It should also enhance nondiscrimination in economic, social and cultural life and develop measures against racism and xenophobia.’ 40 About the importance of the ‘fair and equal treatment paradigm’ in the progressive development of a common immigration policy in the EU see S. Carrera and M. Formisano, ‘An EU Approach to Labour Migration: What is the Added Value and the Way Ahead?’, CEPS Working Document No. 232, (Brussels, 2005). 41 K. König and B. Perchinig, ‘Austria’, in J. Niessen, Y. Schibel and C. Thompson (eds), Current Immigration Debates in Europe: A Publication of the European Migration Dialogue. See also National Contact Point Austria within the European Migration Network, ‘The Impact of Immigration on Austria’s Society: A Survey of Recent Austrian Migration Research’, in Berlin Institute for Comparative Social Research (eds), The Impact of Immigration on Europe’s Society: A Pilot Research Study undertaken by the European Migration Network, (Berlin, 2005). 42 A. Fermin, The Justification of Mandatory Integration Programmes for New Immigrants: Summary of the Dutch report, ‘Verplichte inburgering van nieuwkomers’, (Utrecht, 2001).

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version of the Act on Integration of Aliens in Demark and Act on Danish Courses for Adult Aliens and Others stipulates that the foreigner is obliged to participate in the ‘integration programme’ in order to obtain a permanent residence permit and any other benefits.43 At present only Belgium (Wallonia) and France apply ‘voluntary’ integration programmes. In Belgium the Decision of the Walloon government of 6 March 1997 concerning the integration of aliens and people of foreign origin44 establishes that the immigrant is solely responsible for his integration, and proclaims its voluntary nature. In the case of France while as a premise integration is seen as voluntary, once the ‘integration contract’ is signed by the newcomer, there is a contractual obligation by the latter to attend the civic training and language courses, as well as to go to any interviews that may be set for the monitoring of the contract.45 The non-attendance of civic and language courses will have negative consequences for the official decision on whether to grant long-term residence status.46 It is interesting to see how a new project for a law on planning of social cohesion (projet de loi de programmation pour la cohésion sociale), has been proposed by the French Ministry of employment and social cohesion, on 15 September 2004. The latter project would make mandatory the integration contract.47 Another case where a more restrictive tendency is taking place might be the case of Austria where the new Settlement and Residence Act appears to present a more 43 Any other benefits might include ‘the introduction allowance’, which is offered to those immigrants not self-supporting or maintained by others. 44 Arrêté du Gouvernement wallon portant exécution du décret, relatif à l’intégration des personnes étrangères ou d’origine étrangère, 4 July 1996, M.B. 10/04/1997, p. 8452. The Arrêté and the Décret foster a major and stronger cooperation between authorities and regional centres. These two laws establish six regional centres for the integration of immigrants in the French-speaking area: Charleroi, La Louvière, Liège, Mons, Namur and Verviers. These centres aim ‘to provide for the development of integration activities on the social, socioeconomic, cultural and educational levels, in the area of accommodation and health, preferably in the framework of agreements concluded with the local authorities and associations’. The Décret created the Walloon Consultative Council for the Integration of Foreigners and of Persons of Foreign Origin, which gives advice to immigrants about the access possibilities to social, cultural, economic, legal and political rights. 45 The integration contracts, which last for one year, will specify language courses (between 200 and 500 hours) covering one-year periods and renewable twice (a total of three years). During this time the newcomer will have to improve his/her language ability by one level at the minimum, but otherwise to the level required for naturalization. The performance of the integration contract is performed by the Office of international migrations. 46 I. Michalowski, An Overview of Introduction Programmes for Immigrants in Seven European Member States. 47 Projet de loi de programmation pour la cohésion sociale, Ministère d l’emploi, du travail et de la cohésion sociale, (15 September 2004) foresees in Chapter IV, Article 61, to make mandatory the integration contract in France and links it to the decision giving a right of residence. The decision will also be conditional on the newcomer fulfilling the ‘republican integration conditions’.

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restrictive framework on the integration of immigrants. The New Settlement and Residence Act, which has entered into force on 1st January 2006, has widened the ‘Integration Agreement’.48 Until then the agreement mainly consisted of the need to attend a language course of 100 hours and to acquire basic knowledge of the German language (European level A1), as well as the ability to participate in the social, economic and cultural life (civic education course). At present, the New Act requires that the Integration Agreement is organized in two different modules: a first one consisting of literacy and the second of a language course. For the latter, the immigrant is now asked to attend a number of 300 hours and to achieve an A2 level of German language.49 In the light of this, integration hides the actual conventional models of assimilation, incorporation or acculturation. In words of Joppke and Morawska,50 the actual scope of ‘official multiculturalism’ has been exaggerated in public and academic perception. Also, when these policies have been actually in place they have been recently abandoned by those States who were implementing them. Further, the above-mentioned ‘return to assimilation’ advocated by Brubaker,51 is exemplified by the experience of the Netherlands. The traditionally multicultural position on integration that characterized that country has been substituted by an assimilationist doctrine – that is a policy of obligatory integration.52 3.3. The personal scope The target group of the integration programmes are mainly those qualified as ‘newcomers’ of adult age, immigrants with an insufficient knowledge of the language and immigrants interested in acquiring permanent residence. In some cases ‘settled immigrants’ who may still have integration needs might be also subject to integration programmes. In Belgium (Flanders) the main target group are immigrants registered in one municipality of the Flemish part of Belgium or Brussels who are over 18 years old, refugees, travelling population groups, newcomers speaking other languages 48 K. König and B. Perchinig, ‘Austria’, in J. Niessen, Y. Schibel and C. Thompson (eds), Current Immigration Debates in Europe: A Publication of the European Migration Dialogue. 49 See paragraphs 14-16 of the Settlement and Residence Act which regulates longterm residence and labour migration in conjunction with the Alien’s Employment Act (Ausländerbeschäf-tigungsgesetz) of 1975. 50 Joppke, C. and E. Morawska, Integrating Immigrants in Liberal Nation-States: Policies and Practices, in C. Joppke and E. Morawska (eds), Toward Assimilation and Citizenship: Immigrants in Liberal Nation-States. 51 See R. Brubaker, ‘The return to assimilation? Changing Perspectives on Immigration and its Sequels in France, Germany and the United States’, in C. Joppke and E. Morawska (eds), Toward Assimilation and Citizenship: Immigrants in Liberal Nation States. 52 I. Michalowski, ‘Integration Programmes for Newcomers – a Dutch model for Europe?’, in A. Böcker, B. de Hart and I. Michalowski, IMIS-Beiträge, Special Issue on Migration and the Regulation of Social Integration, (Osnabrück, 2004).

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and undocumented immigrants.53 Further, to participate, a foreigner must be at least 18 years old and must have recently – within a year – and for the first time registered at the local Flemish municipality or in Brussels.54 The Federal ordinance on integration courses for foreigners and late-settlers of 13 December 2004 in Germany establishes that will be subject to ‘integration programmes’ those immigrants who have insufficient knowledge of the German language and those already residing in Germany for a longer period who may still have integration needs, newcomers and ethnic German immigrants (Aussiedler).55 The first group specifically comprises regular workers, independent workers, individuals admitted for family reunification, and recognized refugees. In particular circumstances, for instance when an individual receives social and welfare benefits, participation can be made mandatory for immigrants already living in Germany for a longer period of time.56 The exempted groups are usually, among others, European citizens and EEA nationals, immigrants in possession of a short-term work permit, long-term settled immigrants, highly skilled workers, scientists and professors, students, researchers and asylum seekers. In this regard, it is also striking to see which kind of individuals are excluded in the new Bill revising the WIN in the Netherlands from the obligation to integrate: nationals from the US, Canada, New Zealand, Australia, Japan, etc.57 In Belgium (Flanders), the group of people exempted are among others, EU and EEA citizens, asylum seekers and foreigners who have a temporally-limited residence permit (three months or less), students, interns, researchers, academics, highly skilled workers who intend to stay for no more than four years, persons who work under international contracts, foreigners who have finished a PhD, people who have

53 S. Gsir, M. Martiniello, K. Meireman and J. Wets (2005), ‘Belgium’, in J. Niessen, Y. Schibel and C. Thompson (eds), Current Immigration Debates in Europe: A Publication of the European Migration Dialogue. M. Martiniello and A. Rea, Belgium’s Immigration Policy brings Renewal and Challenges, (Migration Information Source, 2003), retrievable from www.migrationinformation.com. See also I. Michalowski, An Overview of Introduction Programmes for Immigrants in Seven European Member States. 54 The Civic Integration Decree of the Flemish Government of 28 February 2003 came into force on 1 April 2004. 55 Integrationskurs- verordnung-IntV. See Bundesamt für Migration und Flüchtlinge (www.bamf.de). On how German statutory law entails barriers to integration see also U. Davy, ‘Integration of Immigrants in Germany: A Slowly Evolving Concept’, European Journal of Migration and Law, Vol. 7, No. 2, (2005): 123-144. 56 International Centre for Migration Policy Development, ‘Integration Agreements and Voluntary Measures: Compulsory or Voluntary Nature’. 57 See L.F.M. Besselink, ‘Inburgering, gelijke behandeling en verblijfsrecht van vreemdelingen in Nederland, Staats-en Bestuursrecht’, (2005), retrievable from www. libertysecurity.org .

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a position of responsibility in the tourist service of their country, au pairs, employees with a foreign country employer.58 Economic status and the level of financial dependency on the receiving State’s social welfare system seem to be among the main factors determining whether ‘the non-national’ is or not subject to integration programmes and courses. In fact, immigrants without financial resources and in search of economic improvement seem to be the mainly targeted group by the rigid obligation to integrate. The poor will always face far more obstacles to integrate successfully than all the ‘Others’ which are financially accommodated and not dependent on the public policies of the receiving state. The compatibility of these exclusionary measures with the prohibition of discrimination as included, among others, in the Protocol No. 12 of the European Convention of Human Rights,59 and Articles 2 and 26 of the International Covenant on Civil and Political Rights remains very much open to discussion.60 3.4. The enforcement of integration programmes and the sanctions The enforcement of integration programmes involves a series of sanctions if they are not attended or successfully completed. Penalties range from those of financial character to the loss of the right of residency and expulsion from the country. Austria represents a typical case concerning the enforcement attached to a failure to integrate. Under Austrian law, when the integration programme is not completed within: the first year, the residence permit can only be renewed for another year; the first 18 months, State financing is reduced to 25% of costs; and the first 2 years, State financing is withdrawn and a fine of €100-200 is charged. Finally, after 3 years without having begun, or after 4 years without having completed the programme, the

58 See Article 3 of Voorontwerp van besluit van de Vlaamse regering betreffende het Vlaamse inburgeringsbeleid of 18 July 2003. 59 Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedom, E.T.S. 177, opened for signature on 11 April 2000, Article 1.1 stipulates that ‘The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. 60 Article 2.1 of the International Covenant on Civil and Political Rights stipulates that ‘Each State Party to the present Covenant undertakes to respect and to ensure to all individual within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without discrimination of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’ Article 26 states that ‘All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’

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immigrant can be expelled from Austria after the State has produced proof of his or her unwillingness to integrate. 61 Other countries, such as the Netherlands and Belgium (Flanders), also apply fines to newcomers who have failed to those successfully integrate. In the Netherlands, the WIN provides sanctions for those newcomers who do not apply for an integration inquiry, cooperate with the integration enquiry, register with the educational institution, attend all parts of the educational programme (including taking the evaluation test) as well as cooperate with the other parts of his/her integration programme.62 Under the new revision of the WIN, the lack of integration could be seen as a ground for refusal of admission to the country. Also, under the new bill, municipalities will discretionally impose fines to those immigrants not passing successfully the integration examination in the expected period of time, which is three years and half for those who successfully completed the pre-arrival exam, and five years for all the rest of third country nationals. The Civic Integration Decree of the Flemish Government in Belgium provides a specific list of reasons permitted for failing to attend the programme is provided.63 Failing this the reception offices can and are encouraged to enforce sanctions. These may take the form of restrictions on access to common law services, for example social and welfare benefits. The reception offices, which facilitate such access for immigrants, are directly responsible for ensuring the overall success of integration programmes. It is therefore reasonable to expect that access to social or welfare benefits would be used as a conditionality to ensure abiding participation in the integration. Financial sanctions are also provided when the third country national has failed to report to a reception office within three months of registration with the municipality. These entail fines of between €1 and €25. In Denmark, the ‘introduction allowance’ which might be offered to those immigrants not self-supporting or maintained by others might be withdrawn on nonfulfilment of the integration contract.64 In the case of Germany, negative sanctions entail withholding of permanent residence status or the right of residency. Those immigrants, who were already living in Germany for a longer period of time but required to participate because their knowledge of the language is deemed insufficient, might be subject to a reduction in social benefits if they do not attend the integration courses.

61 Unsubstantiated absences result in unemployment benefits being withdrawn for 6-8 weeks at a time. If the immigrant passes the course before the end of the first 18 months, the Government will refund 50% of the costs incurred. 62 See for example Articles 2, 4.4, 8 and 9.1 of the Act. 63 See Article 25 of the Decreet betreffende het Vlaamse inburgeringsbeleid. 64 Act on Integration of Aliens in Demark, Act No. 643 of 28 June 2001, and Act on Danish Courses for Adult Aliens and Others. As from 1 January 2004 new versions of both laws have entered into force.

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3.5. The nexus between immigration, integration and citizenship Mandatory participation in integration programmes and courses is therefore a constitutive element of a majority of immigration legislations in the EU Member States under study. The social inclusion of immigrants is henceforth artificially intertwined with a juridical and policy framework of immigration in terms of admission, residence and length of stay. Policies on admission are therefore paradoxically converging with those of social inclusion. The ultimate expression of the nexus between integration and immigration might be seen looking at the Netherlands, where a new legislative proposal on the integration of migrants has been presented by the Integration and Immigration Minister Rita Verdonk.65 The draft law was approved by the Dutch Parliament on 22 March 2005 and is now in hands of the Council of State. Integration is no longer seen as a process taking place inside the receiving State, but rather as commencing even before an individual emigrates from his/her country of origin. The Bill will provide for a ‘pre-arrival integration’ or ‘integration of immigrants abroad’ (Wet Inburgering in het buitenland). The level of integration of the ‘would-be-immigrant’ will be tested in the Dutch embassy by a computer before the person does immigrate to the Netherlands. The lack of progress in becoming ‘more like a citizen’ will be among the grounds for refusal of admission – being granted with a visa – into the country. As regards the nexus between integration and citizenship, we may see how some EU countries increasingly condition the naturalization process leading to the acquisition of the nationality to passing successfully an integration test. The UK gives us a good example of the new legislation strengthening this link.66 The Nationality, Immigration and Asylum Act of 2002, which entered into force on 1 November 2005, has added to the previous British Nationality Act of 1981 a requirement for naturalization that the person ‘has sufficient knowledge about life in the United Kingdom’. In addition to the English language requirement (knowledge of English, Welsh or Scottish Gaelic), applicants for naturalization need to pass the ‘Life in the UK’ test.67 The link between integration and citizenship does not apply however to Belgium, where the last amendment to the Belgian citizenship law in March 2000 removed the condition imposed on the immigrant to express the willingness to integrate for the naturalization process.68 65 V. Marinelli (2005), ‘The Netherlands’, in J. Niessen, Y. Schibel and C. Thompson (eds), Current Immigration Debates in Europe: A Publication of the European Migration Dialogue. See also, J. Van Selm, The Netherlands: Death of a Filmmaker Shakes a Nation, Migration Information Source, (2005), retrievable from www.migrationifnormation.org. 66 A. Favell, ‘Britain: The Paradoxical Triumph of Multicultural Race Relations’ in A. Favell Philosophies of Integration: Immigration and the Idea of Citizenship in France and Britain, (London, 1998), pp. 94-149. 67 UK Home Office, Life in the United Kingdom: A Journey to Citizenship, (Norwich, 2005). 68 S. Gsir, M. Martiniello, K. Meireman and J. Wets, ‘Belgium’, in J. Niessen, Y. Schibel and C. Thompson (eds), Current Immigration Debates in Europe: A Publication of the European Migration Dialogue.

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4. The EU Framework on Integration of Immigrants This section addresses the evolving EU framework on integration of immigrants where a fierce struggle is taking place in two parallel battle fields: first, the overall approach presented under the so-called ‘EU framework for the integration of immigrants’ and the actual legally binding acts product of a common immigration policy; and secondly, the competence over this field – national versus European. The struggle starts when comparing the role and function of integration in what is being proposed by the Council and the European Commission (soft policy approach), and what is being finally officially adopted by the Council of Ministers as proper European Community law (hard policy approach). The second multiannual programme on freedom, security and justice – The Hague Programme – which was agreed by the European Council in November 2004 placed ‘the integration of immigrants’ as one of the most relevant policy areas to be developed in the next five years.69 The European Commission then published on May 2005 an Action Plan implementing the Hague Programme where integration was reconfirmed as one of the top ten strategic priorities for the creation of an Area of Freedom, Security and Justice in the EU.70 Based on The Hague Programme, on 19 November 2004 the JHA Council adopted the so-called ‘Common Basic Principles for Immigrant Integration Policy’ (CBPs) which provided a first decisive move toward the progressive establishment of a common ‘EU framework on integration’ by specifying what the concept of integration means in the EU context.71 The eleven principles could be summarized as follows: 1. Integration is a dynamic, two-way process of mutual accommodation by all immigrants and residents of member states. 2. Integration implies respect for the basic values of the EU. 3. Employment is a key part of the integration process. 4. Basic knowledge of the host society’s language, history and institutions. 5. Efforts in education are critical to preparing immigrants. 6. Access for immigrants to institutions, as well as to public goods and services, on a basis equal to national citizens and in a non-discriminatory way. 7. Frequent interaction between immigrants and member state citizens. 8. Guarantee of the practices of diverse cultures and religion as guaranteed under the Charter of Fundamental Rights and Freedoms in the Union.

69 See Annex I, ‘The Hague Programme: Strengthening Freedom, Security and Justice in the European Union’, point 1.5 in the Presidency Conclusions of the Brussels European Council (European Council, 2004). 70 Commission of the European Communities, Communication from the Commission to the Council and the European Parliament: The Hague Programme: Ten priorities for the next five years, COM(2005) 184, (Brussels, 10 May 2005). 71 See ‘Common Basic Principles on Immigrants Integration’, Justice and Home Affairs Council Conclusions, 19 November 2004.

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9. The participation of immigrants in the democratic process and in the formulation of integration policies. 10. Mainstreaming integration policies and measures in all relevant policy portfolios. 11. Developing clear goals, indicators and evaluation mechanisms. This wide list of principles is primarily intended ‘to assist member states in formulating integration policies for immigrants by offering them a simple non-binding but thoughtful guide of basic principles against which they can judge and asses heir own policies’.72 In fact, they are not legally binding for the Member States, and therefore fall within the category of what has been labelled as soft law.73 They provide a soft policy approach for the integration of immigrants in the EU. The facultative nature has been further reinforced by the Commission Communication on ‘A Common Agenda for Integration’ published on September 2005.74 This Communication, which puts forward concrete measures to put into practice the CBPs, stipulates that the package of actions thereby presented ‘is indicative and not exhaustive and it leaves the Member States to set priorities and select the actions as well as the way in which they are to be carried out within the context of their own national situations and traditions’. The majority of the CBPs are indeed of purely symbolic nature. As we have seen in this paper, the positive ‘two-way process paradigm’ seems to be far from easy to be implemented in the national arena. The CBP consisting of mandatory ‘knowledge of the host society’s language, history and institutions is indispensable to integration’ seems however to be taking overly precedence among all the others across the EU, and it seems to be presented as a straight ‘one-way process’ on the immigrant’s side. The openness, and apparent positive connotations, underlying the compendium of CBPs as regards the social inclusiveness of immigrants has not formed the foundation of the few legal acts being adopted as part of the common EU immigration Policy, like for example the Council Directives on the status of long-term residents

72 See Justice and Home Affairs Council Conclusions, Common Basic Principles on Immigrants Integration, Council Meeting 2618, 14615/04, (19 November 2004). 73 R. Cholewinski, ‘Migrants as Minorities’, Journal of Common Market Studies, Vol. 43, No. 4, November 2005, pp. 695-716. 74 Commission Communication, A Common Agenda for Integration – Framework for the Integration of Third Country Nationals in the European Union, COM(2005) 389, (Brussels, 1 September 2005). In words of the Commission, this Communication represents ‘the Commission’s first response to the invitation of the European Council to establish a coherent European framework for integration. The cornerstones of such a framework are proposals for concrete measures to put the CBPs into practice, together with a series of supportive EU mechanisms. Taking into account existing EU policy frameworks, the Communication provides new suggestions for action both at EU and national level.’

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(2003/109)75 and on the right to family reunification (2003/86).76 The philosophy underlying these two Directives, which provide the hard policy approach of integration of immigrants, seems to strengthen the evidenced trend in a majority of Member States towards an increasingly restrictive and mandatory integration policy for immigrants. Both Directives negatively link access to the set of rights they confer (inclusion) to compliance by immigrants with a series of restrictive conditions left in the hands of the member states (exclusion). Integration becomes the obligatory juridical condition (conditionality of integration) for having access to the set of rights and freedoms that these laws confer and to a more secure juridical status. Member States are given wide discretion to compel immigrants to comply with mandatory integration conditions stipulated by national law in order to have access to the rights that they provide. Article 5 of the Directive on the long-term resident status 2003/109 specifically points out that ‘Member States may require third-country nationals to comply with integration conditions, in accordance with national law’. No definition of integration is hereby provided. The final interpretation and practical scope of these conditions will be defined according to the variety of national immigration and integration legislation, political priorities and philosophies of each Member State.77 They will also be the ones freely testing whether the immigrant is successfully integrated into their societal models. A State may oblige ‘the Other’ to pass a forced integration test, and cover the financial costs of it, before having secure access to the benefits and rights conferred by the EC status of long-term resident.78 The way in which integration is (mis)used in these two Council Directives is open to substantial criticism not least on the grounds of fundamental rights.79 The European Parliament has challenged three provisions of the Directive on family reunification 2003/86, on the ground that they do not conform to Article 8 of the European Convention on Human Rights (ECHR), which guarantees the right of 75 Council Directive concerning the status of third-country nationals who are long-term residents, 2003/109, [2004] OJ L 16/44, (23 January 2004). 76 Council Directive on the right to family reunification, 22 September 2003, 2003/86, [2003] OJ L 251/12, (3 October 2003). For an analysis of both Council Directives see J. Apap and S. Carrera, ‘Towards a Proactive Immigration Policy for the EU?’, CEPS Working Document No. 198, (Brussels, 2003). 77 For a study on whether the Council Directive on the status of third-country nationals who are long-term residents facilitates the integration of immigrants in a de facto multicultural European Union see S. Carrera, ‘Integration as a process of inclusion for migrants? The case of long-term residents in the EU’, in H. Schneider (ed.), Migration, Integration and Citizenship: A Challenge for Europe’s Future, pp. 109-138. 78 K. Groenendijk, ‘Legal Concepts of Integration in EU Migration Law’, European Journal of Migration and Law, Vol. 6, No. 2, (2004): 111-26. 79 S. Carrera and T. Balzacq, Migration, Borders and Asylum: Trends and Vulnerabilities in EU Policy, (Brussels, 2005). See also S. Peers, ‘New Minorities: What Status for ThirdCountry Nationals in the EU System?’, in G. N. Toggenburg (ed.), Minority Protection and the Enlarged European Union: The Way Forward, (Budapest, 2004).

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family life.80 Among the specific provisions being contested there is Article 4.1 which allows the Member states to exclude the family reunification of children over 12 if they have not complied with an ‘integration requirement’.81 It seems that the common EU immigration policy is negatively providing the means to strengthen the nexus between immigration and integration, and to reinforce particular national immigration and integration philosophies that might make the already-vulnerable position of the immigrant even more vulnerable. The nexus between integration and citizenship has also contaminated the freedoms attached to the status of European citizenship as established by the Maastricht Treaty (Treaty on the European Union- TEU) in 1993. If we look at the most recent Council Directive 2004/38 on the rights of citizens of the Union and their family members to move and reside freely within the territory of the member states,82 ‘integration’ is part of the grounds not to expel a non-national European citizen.83 In comparison to the previous juridical EC regime on the free movement of persons, the Directive 2004/38 now confers greater protection for the European citizen against expulsion, more procedural guarantees/safeguards and judicial redress depending on how long the individual concerned has resided in the territory,84 her/his social and cultural integration into the host country, state of health, age, family and economic situation.85 One may wonder, however, at the ways in which the receiving member state will evaluate the degree of integration achieved by the person involved. The 80 See Case 540/03, European Parliament v. Council. J. Apap and S. Carrera, ‘Family Reunification – A case for annulment before the ECJ?’, CEPS Commentary, (2004). See also H. Schneider and A. Wiesbrock, ‘The Council Directive on Family Reunification: Establishing Proper Rights for Third Country Nationals?’, in H. Schneider (ed.), Migration, Integration and Citizenship: A Challenge for Europe’s Future, Vol. 2, (Maastricht, 2005), pp. 35-70. 81 Article 4.1 of Directive 2003/86/EC provides that ‘By way of derogation, where a child is aged over 12 years and arrives independently from the rest of his/her family, the Member State may, before authorising entry and residence under this Directive, verify whether he or she meets a condition for integration provided for by its existing legislation on the date of implementation of this Directive.’ 82 See Directive 2004/38/EC of the European Parliament and the Council of 29 April 2004, on the right of citizens of the Union and their family members to move and reside freely within the territory of the member states amending Regulation (EEC) No. 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, OJ L 158/77, (30 April 2004). 83 S. Carrera, ‘What does free movement mean in theory and practice in an enlarged EU?’, European Law Journal, Vol. 11, No. 6, (2205): 699-721. 84 According to Article 28.3.a of the Directive, a decision of expulsion will not be taken ‘except on imperative grounds of public security’, if the person involved has resided in the host member state for the previous ten years. 85 Article 28 states that ‘Before taking an expulsion decision on grounds of public policy or public security, the host member state shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host member state and the extent of his/her links with the country of origin’. See Chapter VI of the Directive (Articles 27-33),

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Directive does not give any indication regarding the content and nature of ‘the social and cultural integration test’. The legislation of the member state concerned shall freely determine the threshold for granting more legal protection against expulsion. This will lead to divergent national practices concerning the integration conditions applicable to Union citizens. The new integration element may also result in direct discrimination and unequal treatment in an enlarging EU, and violate international as well as European legal commitments such as Protocol No. 12 of the European Convention of Human Rights, and Articles 2 and 26 of the International Covenant on Civil and Political Rights, and the two EC Directives on equal treatment, the Employment Equality Directive (2000/78/EC) establishing a general framework for equal treatment in employment and occupation86 and the Racial Equality Directive (2000/43/EC) implementing the principle of equal treatment between persons irrespective of racial or ethnic origin.87 On the other hand, a parallel struggle is taking place over the competence on the policy on integration of immigrants - national versus European competence. The respective legal services of the European Commission and the European Council are currently under serious discussion about the correct legal basis of an EU framework of integration of immigrants. The European Commission advocates that the juridical basis is implied in Article 63.3.a of the Treaty on the European Community (TEC) which states that ‘The Council shall within a period of five years after the entry into force of the Treaty of Amsterdam adopt: measures on immigration policy within the following areas: (a) conditions of entry and residence’.88 The Council, however, strongly sustains that accordingly to the principle of subsidiarity policies concerning the integration of immigrants remains under the main competence of the Member States. The competition between the European Commission and the Council is entitled ‘Restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health’. 86 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ L 303, (2 December 2000), pp. 1622. 87 Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ L 180, (19 July 2000), pp. 22-26. See E. Guild, The Legal Elements of European Identity: EU Citizenship and Migration Law, (The Hague, 2004), pp. 201-14. See also S. Carrera and M. Formisano, ‘An EU Approach to Labour Migration: What is the Added Value and the Way Ahead?’, CEPS Working Document, No. 232, (2005). 88 Title IV TEC, ‘Visas, asylum, immigration and other policies related to the free movement of persons’, Articles 61-69 (also called as ‘First EC Pillar’). This would also be consistent with the objectives adopted under the first multi-annual programme on Justice and Home Affairs policies, The Tampere Programme, where paragraph 18 stipulates that ‘The European Union must ensure fair treatment of third-country nationals who reside legally on the territory of its Member States. A more vigorous integration policy should aim at granting them rights and obligations comparable to those of EU citizens. It should also enhance nondiscrimination in economic, social and cultural life and develop measures against racism and xenophobia.’

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mostly related to the financial allocation that will be agreed for the progressive development of a common framework on the integration of immigrants under the so-called ‘European Fund for the Integration of Third-Country Nationals’.89 In the Commission’s Communication presenting the first framework programme on ‘Solidarity and Management of Migration Flows’,90 the Directorate General for Justice, Freedom and Security advocated for an ambitious allocation of funds for the integration of immigrants.91 The total amount of funding that was presented under the European Integration Fund was excessively ambitious in the eye of the Council, which has substantially reduced the total amount of budget allocated to the Area of Freedom, Security and Justice. The direct effects that the cut in the EU budget will have in the integration of immigrants are not publicly known, yet it is expected that “integration” is going to be the main victim. The debate around the competence and the legal basis would have been solved with the entry into force of the Treaty establishing a Constitution for Europe, which would have provided a solid legal base for the development of a common policy on the integration of immigrants.92 Article III-267.4 provides that “European laws or framework laws may establish measures to provide incentives and support for the action of Member States with a view to promoting the integration of third country nationals residing legally in their territories, excluding any harmonization of the laws and regulations of the Member States”. The future of the Constitutional Treaty, however, is now very much in doubt. The blows received from the French and Dutch referenda have made it difficult to imagine that the Treaty, at least in its current form, will ever enter into force.93

89 H. Urth (2005), ‘Building a Momentum for the Integration of Third-Country Nationals in the European Union’, European Journal of Migration and Law, Vol. 7, No. 2, (2005): 163180. 90 Commission of the European Communities, Proposal for a Decision establishing the European Return Fund for the period 2007-2013 as a part of the General Programme ‘Solidarity and Management of Migration Flows’, Brussels, COM (2005) 123 final, Brussels, 6th April 2005. 91 Article 4 of the Commission Communication 2005/123 states that ‘The general objective of the Fund is to support the efforts of Member States in enabling third-country nationals of different cultural, religious, linguistic and ethnic backgrounds to settle and take actively part in all aspects of European societies as regards admission procedures, basic introduction programmes and activities, participation in civic and political life and respect for diversity and civic citizenship’. 92 See the Treaty establishing a Constitution for Europe as signed in Rome on 29 October 2004 and published in the Official Journal of the European Union on 16 December 2004 (C Series, No. 310). 93 S. Carrera and E. Guild (2005), No Constitutional Treaty? Implications for the Area of Freedom, Security and Justice, CEPS Working Document No. 231, (Brussels, 2005).

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5. Conclusions The notion of “integration of immigrants” does not correspond with the positive one on social inclusion. The former has rather become a juridical, policy and institutional tool of control by which the State may ‘manage’ who is included and who is excluded. Integration hides the actual processes of incorporation and assimilation philosophy, and is intrinsically intertwined with (in)security and the management of immigration. The social conflicts that some EU Member States are currently suffering represent a direct expression against a conservative notion of ‘we’ and ‘homogeneous and anchored national identity’. They are also an intense reaction toward restrictive immigration and integration policies and discourses. Integration is a mechanism in hands of the State for the development of a restrictive immigration, asylum, free movement and citizenship policy. A critical position about the modern conceptualization and discourse of integration has been hereby presented, putting into question nationalistic claims about a perceived social commonality of cultural and social values which needs to be defended against ‘the Other’. Societies are continuously experiencing an increasing variety of life styles and identities that positively enrich, challenge and diversify the ‘we’. There is an urgent need to dismantle the multifaceted linkages between integration, (in)security, immigration and citizenship. When referring to the sociological process by which a non-national is included in the different dimensions of the receiving State, instead of perpetuating the use of the word “integration”, we have sustained the use of social inclusion. The later would consist of a compendium of processes of inclusion tackling social exclusion, un-equal treatment and discrimination. The paper has widely assessed the main tendencies and vulnerabilities shared by integration programmes for immigrants in a selected group of EU Member States. In this way it has provided evidence on the reaction and practices of liberal political regimes about the challenge posed by immigration, diversity, heterogeneity and plurality of values and interests.94 As we have sustained, the traditional national models on immigrants’ integration are no longer valid, but under constant evolution. There are however some commonalities in ‘integration programmes’ and ‘integration philosophies’ in the EU. National programmes tend to share very general aspects, such as language and civic courses, familiarization with the receiving State’s history, values and cultural traditions, as well as labour market orientation. Further, the notion of ‘integration’ in some of these States is of restrictive nature and mostly related to ‘cultural aspects’. The mandatory character of ‘integration programmes’ has progressively become the general rule. As regards the personal scope, the linkage between ‘integration’ and poverty is clear. The economic status and the level of dependency of the non-national seem to be the key factors determining whether ‘the 94 Favell refers to ‘the problem of integration’ as to ‘how can a political system achieve stability and legitimacy by rebuilding communal bonds of civility and tolerance – a moral social order – across the conflicts and divisions caused by the plurality of values and individual interests’. See A. Favell, Philosophies of Integration: Immigration and the Idea of Citizenship in France and Britain.

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immigrant’ is targeted by the forced integration programme. The compatibility of some of national legislations and policies with the prohibition of discrimination as included in the Protocol No. 12 of the European Convention of Human Rights, and Articles 2 and 26 of the International Covenant on Civil and Political Rights remains very much at stake. Concerns need to be raised about some of these developments at the national arena and their exact implications in the common EU framework on integration of immigrants. The nexus between integration, immigration and citizenship in the domestic realm is having a cascade of effects at the supranational. The link between ‘integration’ and ‘immigration’ in the hard policy approach and the development of a common immigration policy in the EU is critical. Integration acts as the juridical conditionality for having access to a secure juridical status. It therefore increases the vulnerability of the immigrant towards the State, the receiving society and the EU. No EU framework should provide the means to strengthen particular national immigration and integration philosophies that might make the already-vulnerable position of the immigrant more vulnerable. This needs to be prevented for the sake of social cohesion, human rights and freedom. Instead, the EU should advocate a policy based on ‘the equal and fair treatment paradigm’ emphasized at the Tampere European Council.95 The EU should address the roots causes of failure by giving priority at tackling multifaceted exclusion and promoting the equal and fair inclusion of immigrants in the European polity.

95 S. Carrera and T. Balzacq, Migration, Borders and Asylum: Trends and Vulnerabilities in the EU Policy, (Brussels, 2005).

SECURITY

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Chapter 7

The Treaty of Prüm and EC Treaty: Two Competing Models for EU Internal Security Thierry Balzacq, Didier Bigo, Sergio Carrera and Elspeth Guild

1. Introduction A certain tension prevails between the EU and intergovernmental processes in the area of security policy,1 which is primarily manifested by challenges ‘from below’ by the Member States to the EU level. An excellent illustration of this phenomenon is the Treaty of Prüm,2 signed by seven EU Member States on 27 May 2005, in the German city of Prüm. The signatory states are Belgium, Germany, Spain, France, Luxembourg, the Netherlands and Austria. The objective of the Prüm Treaty3 is to ‘further development of European cooperation, to play a pioneering role in establishing the highest possible standard of cooperation especially by means of exchange of information, particularly in combating terrorism, cross-border crime and illegal migration, while leaving participation in such cooperation open to all other Member States of the European Union.’4 The method of Prüm is resolutely intergovernmental. Is this method useful to EU security as a whole? If not, is it the best way to enhance security? The main advantage, the signatories hold, is that Prüm will enable them to speed up the exchange of information. This paper argues, however, that Prüm is not a mere technical attempt to accelerate the flow of information among signatories. It is, fundamentally, a significant countervailing political force against the European Union’s area of 1 See T. Balzacq and S. Carrera, Migration, Borders, Asylum: Trends and Vulnerabilities in EU Policy, (Brussels, 2005); J. Apap and M. Anderson, Striking a Balance between Freedom, Security and Justice in an Enlarged European Union, (Brussels, 2002). 2 Convention between the Kingdom of Belgium, the Federal Republic of Germany, the Kingdom of Spain, the French Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands and the Republic of Austria on the stepping up of cross-border cooperation particularly in combating terrorism, cross-border crime and illegal migration, Prüm (Germany), 27 May 2005, Council Secretariat, 10900/05, (Brussels, 7 July 2005). 3 Throughout this paper, the terms Prüm Convention, Convention, Treaty of Prüm, Treaty and Schengen III are used interchangeably. 4 Preamble to the Treaty of Prüm, p. 3.

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freedom, security and justice. It weakens the EU more than it strengthens it, and under many circumstances, it simply cannot provide the way forward. For the most part much is lost and very little is gained by curtailing the EU framework. First, Prüm creates a hierarchy within the EU. In a word, if some Member States can decide to create a new structure that will apply to all, this produces a multiplelevel game within the EU that will vitiate its credibility. Second, by focusing on data exchange, the Convention potentially creates competition with the ‘principle of availability’ promoted by the Commission and foreseen in the Hague Programme of October 2005. In that initiative, the Commission proposed to substitute the principle that data belong to state authorities (subject of the law to protect the data subject) and can only be transmitted to another Member State on the conditions established by the state that holds the information with the ‘principle of availability’.5 Under the latter principle, the authorities of any Member State would have the same right of access to information held by any other authority in the Union as applies to state authorities within the state where the data are held. Thus the element of the national settlement on the collection, retention and manipulation of data expressed in national constitutions is transformed into an EU-wide right of use of data. The national border is removed from the principle of data collection, retention and use.6 By contrast, Prüm creates a database whose use is restricted to the seven signatories. Prüm institutionalising a new electronic border between the seven and the eighteen, the Treaty provokes a relapse of EU integration. The purpose of this working document therefore is to examine the extent to which Prüm undermines the process of Europeanization, focusing on its goals and instruments. It is organized in three sections. The first of these draws upon the concept of Europeanization to highlight the problems raised by the Treaty of Prüm. The Convention, we posit, adversely affects Europeanization in so far as it curtails the power of EU institutions and restricts the development of security policy to some Member States. Section 2 examines the two axes around which the Treaty endeavours to organize cross-border action: terrorism and illegal migration.7 This section culminates in an investigation of the political and legal implications of data exchange, which is the core instrument of cooperation among signatories. It 5 European Commission, Proposal for a Council Framework Decision on the exchange of information under the principle of availability, COM(2005) 490 final, (Brussels, 12 October 2005). 6 Ibid. 7 We do not deal with cross-border crime because Prüm itself has no title on this issue, although it includes a general chapter on other forms of cooperation’ that addresses joint operation, measures in the event of imminent danger. None of these measures is fully developed, however. The only noteworthy measure is the possibility for officers to cross the border. Article 25.1 states: ‘In urgent situations, officers from one Contracting Party may, without another Contracting Party’s prior consent, cross the border between the two so that, within an area of the other Contracting Party’s territory close to the border, in compliance with the host State’s national law, they can take any provisional measures necessary to avert imminent danger to the physical integrity of individuals.’

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argues that the essential element of the Prüm Treaty is that it counters the principle of availability and provides that data remains the property of the state where it is collected. State authorities in other Member States have therefore no right to the data, only the right to request access. In this sense, Prüm recalibrates the relationship between the three actors involved in the transnational transmission of data, namely: the state that holds the data, the state that requests the data and the data subject. Finally, section 3 seeks to excavate the rationale of the Treaty through a contrasted approach to the transformation of the Schengen Convention.8 2. Security and Europeanization: Critical Reflections The initial aim of this section is to take stock of the problems raised by an approach to security outside of the EU framework. At the core of the Prüm Treaty is an opposition to the view, held by many, that the European level should be predominant in security-related debates.9 We argue in this paper that the Convention of Prüm produces a political rift in the construction of the EU area of freedom, security and justice. Indeed, the fracturing of the legal framework of EU objectives and their pursuit through agreements that elude the EU and engage only a subset of the parties is detrimental to EU integration. Thus, in order to understand the dynamics of the Prüm Convention, which as will be apparent covers a wide variety of heterogeneous subjects, it is critical to start with an investigation of the extent to which it affects the process of Europeanization.10 The concept of Europeanization provides a useful way to summarize the relationship between Member States and the EU level of policy-making. In general terms, Europeanization is often taken to include how the policy business of EU impacts on the political system of Member States. In this context, Europeanization is an intervening variable that describes: ‘Processes of (a) construction, (b) diffusion and 8 Convention implementing the Schengen agreements of 14 June 1985 between the Governments of the States of Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders. O.J. of the EC, (22 September 2000). 9 Balzacq and Carrera, Migration, Borders, Asylum: Trends and Vulnerabilities in EU Policy. Anderson and Apap, Striking a Balance between Freedom, Security and Justice in an Enlarged European Union. 10 The literature on Europeanization is vast. A sample includes J. T. Checkel, ‘The Europeanization of Citizenship?’, in M. G. Cowles, J. Caporaso and T. Risse (eds), Transforming Europe: Europeanization and Domestic Change, (Ithaca, NY, 2001); K. H. Goetz, ‘National Governance and the European Integration: Inter-governmental Relations in Germany’, Journal of Common Market Studies, Vol. 33, No. 1, (1995): 91-116; B. KohlerKoch, ‘Catching up with Change: The Transformation of Governance in the European Union’, Journal of European Public Policy, Vol. 3, No. 3, (1996): 359-380; B. Kohler-Koch and Rainer Eising (eds), The Transformation of Governance in the European Union, (London, 1999); R. Ladrech, ‘Europeanization of Domestic Politics and Institutions: The Case of France’, Journal of Common Market Studies, Vol. 32, No. 1, (1994): 69-88.

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(c) institutionalization of formal and informal rules. Procedures, policy paradigms, styles, ‘ways of doing things’ and shared beliefs and norms which are first defined and consolidated in the making of the EU decisions and then incorporated in the logic of domestic discourse, identities, political structures and public policy.’11 In short, the emphasis on the ‘incorporation’ of EU decisions suggests an essentially top-down approach to Europeanization. Yet by failing to account for bottom-up practices, the top-down approach has made insufficient efforts to explicate how and when Europeanization is effective. In fact, the real test of Europeanization comes from specifying, empirically, how the internalization of the EU’s ‘way of doing things’ enables and constrains Member States to act in accordance with EU patterns of governance. This assumption plays a crucial role in real world cases. For example, in the Prüm Convention the degree of Europeanization impacts on deciding whether to act ‘in’ or ‘out’ of the EU framework. In this sense, the signatories do not value the EU as the primary unit for the production of security. The effect is to concentrate the decision power in the hands of a restricted number of Member States and sap the action of EU authorities that otherwise would be relevant. This happens as follows. The first and most paradoxical aspect of the preamble of the Treaty is how closely it is tied to the European Union. The very first line of the Treaty states: ‘the High Contracting Parties to this convention, being Member States of the European Union…’ The qualifying characteristic of the parties is not their sovereign right to enter into treaties with other sovereign states but rather the limitation that they have voluntarily accepted to that sovereignty by virtue of their membership of the European Union. As Member States of the European Union, under the doctrine of the EC/EU treaties, the pursuit of objectives of the treaties, including and most importantly, in this context, the completion of the internal market and the area of freedom, security and justice, must take place within the treaties. Article 10 TEC requires the Member States to act in good faith to achieve the objectives of the treaty (and by extension all the EC/EU treaties).12 Thus, the room for manoeuvre as regards the conclusion of treaties among a small group of Member States or with third countries is highly circumscribed by the obligations to the EU that the Member States have accepted. The third preamble of the Treaty reinforces this impression stating ‘endeavouring, without prejudice to the provisions of the [EU and EC treaties], for the further development of European cooperation to play a pioneering role…’ Thus it is apparent that the participating Member States are fully aware that the action they are taking by adopting the Prüm Treaty may be considered by some (including potentially the European Court of Justice) as inconsistent with their duties under the treaties. 11 C. M. Radaelli, ‘Whither Europeanization? Concept Stretching and Substantive Change’, European Integration Online Papers, Vol. 4, No. 8, (2004), retrieved from http:// eiop.or.at/eiop/texte/2000.008a.htm. 12 In the field of judicial cooperation and criminal matters, this demand hinges on the separation of powers and responsibilities between the First and Third Pillars. See for instance Case C-176/03, Commission v. Council of 13 September 2005.

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The preamble goes on to tell the reader that the treaty is intended ‘to play a pioneering role in establishing the highest possible standard of cooperation, especially by means of improved exchange of information’ particularly in three fields, all of which are covered by provisions of the Treaty on the European Union (TEU): combating terrorism, cross-border crime and illegal immigration. Because the signatories do not want to see their action dismissed, the preamble ensures that the treaty leaves ‘participation in such cooperation open to all other Member States of the European Union.’ In effect, the treaty proposes that this group of seven states will adopt the rules and practices for cooperation in these three fields and it will be open to other Member States to join in and follow the rules established by the seven if they so wish. In other words, the feeling that seven Member States wish to establish among themselves the rules and practices in the three fields without interference by the democratic and institutional structures of the EU or by other Member States is reinforced by the next preamble, which states ‘Seeking to have the provisions of this convention brought within the legal framework of the European Union’, and in Article 1.4 Basic Principles of the Convention, which states ‘within three years at the most following entry into force of this convention, on the basis of an assessment of experience of its implementation, an initiative shall be submitted, in consultation with or on a proposal from the European Commission, in compliance with the provisions of the [EU/EC treaties], with the aim of incorporating the provisions of this Convention into the legal framework of the European Union’. 3. The Security Landscape of the Treaty of Prüm The Prüm Convention endorses the view that terrorism, cross-border crime and illegal migration are the central threats to the security of the signatories.13 Threats faced by the seven Member States are thus assumed to be objective.14 Positing objective threats is a political shortcut that introduces a dangerous simplification into the complexity of what constitutes a threat. Who decides, for instance, that a social problem is a terrorist act and what type of threat legitimates specific practices?15 To put it differently, Prüm begins with the existence of security threats and seeks to model the response of signatories in explicit tools. In this section, we examine the political responses tailored to the problems identified. As we shall see, optimal security seems to depend on the level of density in the exchange of various kinds

13 For a similar position, see European Council, A Secure Europe in a Better World: European Security Strategy, (Brussels, 12 December 2003). 14 On the distinction between objective and subjective threats, see, inter alia, T. Balzacq, ‘Qu’est-ce que la sécurité nationale?,’ La revue internationale et stratégique, Vol. 52, hiver 2003-2004 (2003) : 33-50. 15 See Ibid. and D. A. Baldwin, ‘The Concept of Security’, Review of International Studies, Vol. 23, No. 1, (1997): 5-26.

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of data. This exchange, in turn, creates the need to address the question of the interoperability of databases and data protection.16 3.1 Terrorism The ‘subjectivity’ inherent to the concept of terrorism has been often raised. And yet the Prüm Convention conflates categories (terrorism, organized crime and illegal immigration) whose definition and demarcations are contentious. The ‘prevention’ and ‘combating’ of acts qualified as terrorist offences are presented by the Prüm Convention as the justification to adopt ‘the highest possible standard of cooperation by means of improved exchange of information’. The Convention provides the package of security measures in order ‘to prevent terrorist offences’. We highlighted two measures in particular: first, the supply of information in order to prevent terrorist offences and second, the deployment of air marshals. As regards the supply of information to prevent terrorist offences, Article 16 of the Convention states that ‘for the prevention of terrorist offences’ the Contracting Parties have the possibility to supply the other parties’ National Contact Points (NCPs) with the personal data and other information necessary because ‘particular circumstances give reason to believe that the data subjects will commit criminal offences’. Prüm offers the possibility to the States involved to carry out this activity even without being requested to do so by the other Contracting Parties. This logic of collecting information is not new. Indeed, a similar system of exchange of information aimed at combating terrorism took place within the context of the former ‘TREVI group’. Since 1976, this intergovernmental group managed to bring together Member State’s Ministers of Justice and Interior under each rotating Presidency to discuss terrorism. The fields covered by the different working groups expanded considerably during the 1980s to also cover organized crime, drugs and illegal immigration. The TREVI group represented the roots for the creation of the current and more sophisticated Bureau de Liaison (BdL) network.17 The BdL network is at present the European Union’s official communication system connecting officials of the Member States in the Working Group on Terrorism. It was built in 1977 and since the mid-1990s it has been operated as crypto-email, designed for the transmission of information up to the ‘classified’ category. All 25 Member States are currently connected to the BdL system.18 The origins of this network may be found in the period following the summer of 2001, a time when the agenda of the Belgian Presidency of the EU was dominated by 16 This question was raised in Balzacq and Carrera, Migration, Borders, Asylum: Trends and Vulnerabilities in EU Policy. 17 D. Bigo, ‘Liaison Officers in Europe: New Actors in the European Security Field’, in J. E. Sheptycki (ed.), Issues in Transnational Policing, (London, 2000), pp. 67-100. 18 Council of the European Union, Revised Action Plan on Terrorism, 10694/05, (Brussels 27 June 2005).

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the security rationale. In effect, the Belgian Presidency reintroduced a procedure for rapid information exchange after acts of political violence.19 On 17 September 2001, the Working Party Group on Terrorism at the Council agreed that after the attacks in the US a ‘rapid information exchange on terrorist attacks’ was highly necessary.20 A standard form (a special bulleting form) to be sent through the BdL network was also agreed. The bulleting form is sent via the network of liaison offices, marked either ‘urgent’ or ‘flash’, as appropriate. The new rapid information exchange procedure aimed to have rapid and reliable information on terrorist attacks which occur in other Member States so that they can integrate this information in their respective assessment of the level of threat. The BdL network is of different nature and has different functions than the NCP system, as provided by the Prüm Convention. Indeed, under the new regime presented inside the Convention, the information and data exchange is about ‘suspects’ who may commit criminal offences. The BdL regime however mainly consists, at least formally, of exchange of information about ‘terrorist attacks’ which have already occurred in a particular Member State. Prüm goes further. It rearticulates and promotes this existing inter-exchange mechanism of transnational cooperation in the field of security. In fact, Article 16 presents a number of problematic assumptions. To start with, this provision does not at all clarify how the contracting parties’ NCPs are going to generate ‘the knowledge’ that a particular person (that is suspect) will actually commit criminal offences in the future. Regardless, Prüm gives these new security authorities the right to transfer personal data and other wide information should they unilaterally decide that ‘somebody may become a terrorist’. More specifically, Article 16 provides a detailed explanation of the kind of information that will be supplied. It rearticulates this provision and provides a more specific regime for the exchange of information relating the prevention of terrorist offences making reference to the EU legal framework. This substantially amplifies the provisions contained in the Schengen Convention which stipulates in Article 46.1: ‘each Contracting Party may, in compliance with its national law and without being so requested, send the Contracting Party concerned any information which may be important in helping it combat future crime and prevent offences against or threats to public policy and public security.’21 The Prüm Treaty adds more concrete 19 Council of the European Union, Rapid information exchanges on terrorist attacks, 10524/01, (Brussels, 17 September 2001). See also Council of the European Union, Initiative by the Kingdom of Spain for the adoption of a Council Decision introducing a standard form for exchanging information on incidents caused by violent radical groups with terrorist links, 5712/02, (Brussels, 13 February 2002). 20 Council of the European Union, Working Party on Terrorism, Presentation of a Presidency initiative for the introduction of a standard form for exchanging information on terrorist incidents, 5712/02, (Brussels, 29 January 2002). 21 Convention implementing the Schengen agreements of 14 June 1985 between the Governments of the States of Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders. O.J. of the EC, (22 September 2000).

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reference to the exchange of ‘personal data and other information’ and ‘in so far as is necessary because particular circumstances give reason to believe that the data subjects will commit criminal offences as referred to in the EU Council Framework Decision 2002/475).’ Prüm therefore puts greater emphasis on the ‘prevention and visionary aspect’ exercised by the NCPs in the ‘fight against terrorism’. In this context, it comes as no surprise that the Convention makes reference to one of the core legal acts of the EU framework on the fight against terrorism, for example Framework Decision 2002/475 on combating terrorism of 13 June 2002. This legal act calls for all the Member States to take the necessary measures at national level to ensure that the acts referred to in its Article 1.1 are considered as ‘terrorist offences’. It is interesting to recall that in the decision-making process leading up to this Framework Decision, it was extremely complicated to reach a consensus among the Member States on a common definition of what ‘terrorism’ is. As a consequence, the Member States defined this category in very broad terms including ‘causes’ as well as ‘intentions’ (that is threatening to commit any of the acts causing ‘terrorism’). As EmmanuelPierre Guittet observes, the consequences of this definition and the inclusion of such an open-ended list of criminal offences which are incorrectly linked to ‘terrorism’ are quite clear: any dissidence by any opposition group can be considered an ‘act of terrorism’ inside the European Union.22 The Convention endorses the controversial principles enshrined in the Council Resolution on security at European Council meetings and other comparable events.23 Although Prüm does not refer to the resolution as such, Articles 13 and 14 of the Prüm Treaty are, we believe, firmly grounded on it. There, it discusses two ways in which Contracting Parties may prevent criminal offences and maintain public order and security in major international events: via the supply of non-personal and personal data. In effect, the data are supplied on the same weak grounds, for example under the terms of the Directive, ‘if there are substantial grounds for believing that they intend to enter the Member State with the aim of disrupting public order and security’ or, expressed in the parlance of the Convention, Contracting Parties shall ‘supply one another with personal data if any final conviction or other circumstances give reason to believe that the data subject…poses a threat to public order and security.’24 Thus, with this emphasis on ‘beliefs’ and ‘intentions’, the Convention considers suspicion a legitimate rationale for transferring non-personal and personal data 22 P-E Guittet, ‘European Political Identity and Democratic Solidarity after 9/11: The Spanish Case’, Alternatives, Vol. 29, No. 4, (2004). 23 Council of the European Union, Council Resolution on security at European Council meetings and other comparable events, 2004/C 116/06, (Brussels, 29 April 2004). 24 Prüm, Article 14.1. Compare this with Article 4 of the Council Resolution 2004/C 116/06: ‘The information supplied may concern names of individuals in respect of whom there are substantial grounds for believing that they intend to enter the Member State with the aim of disrupting public order and security at the event or committing offences relating to the event…’

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among the signatories. In short, what constitutes a ‘threat to public order’ is left unspecified. Furthermore, despite assertions to the contrary, what is being targeted here are individuals with identifiable behaviour associated, in turn, with identifiable political opinions. In other words, those who will be included in the databases are likely to be, as the 2002 Genoa demonstrations testify, political activists.25 The legitimacy of such action is disputable. This calls attention to the implications of the creation of NCPs by the Contracting parties. The introduction of this network at the European level seems to follow the continuous demands made on several occasions by the Council. As a matter of fact, this was recommended in the Action Plan to Combat Organised Crime of 1997,26 which stressed the need to establish NCPs in order to optimize transnational cooperation in the field of security. Further, the European Commission has stressed that ‘the national contact points should bring together, ideally in one office, the Europol National Units, the Sirene offices, customs, the Interpol NCB and representatives from the judicial authorities.’27 In our view, the NCP should be subject to democratic control while carrying out the transnational competences conferred by the Prüm Convention. Otherwise, by implementing the provisions established in the Convention, each Contracting Party will have the possibility to create a national ‘oracle’ which will be in charge of foreseeing if an individual will become a ‘terrorist’, and then transfer to the other Contracting parties all the information in relation to this ‘suspect’. Who is going to be the NCP in each Member State? Article 16.3 establishes that ‘Each Contracting Party shall designate a national contact point for exchange of information with other Contracting Parties’ contact points. The powers of the national contact point shall be governed by the national law applicable.’ Article 19 further provides that ‘each Contracting Party shall designate a national contact and coordination point.’ It will therefore be under the complete discretion of the states to decide the authority or authorities who will mutate into the category of NCP. There is more. The Convention is ambiguous as to whether, as under the principle of availability, there will be thematic NCPs (each dealing with one single issue) or a single NCP that deals with all types of data collected under the terms of Prüm.28 25 For a discussion of provisions on how suspicion affects the right of free movement in the EU, see J. Apap and S. Carrera, ‘Maintaining Security within Borders: Towards a Permanent State of Emergency in the EU?’, CEPS Policy Brief, No. 41, (Brussels, 2003): 67. For a detailed discussion of the effects of suspicion on politics and social relations, see D. Bigo, ‘Suspicion et exception’, in Cultures & Conflits. Sociologie politique de l’international, (Paris, 2005). 26 Council of the European Union, Council Decision of 28 April 1997, OJ C 251/01. 27 European Commission, Communication Enhancing Police and Customs Cooperation in the European Union: Report on Achievements since the entry into force of the Treaty of Amsterdam, COM(2004) 376 final, (Brussels, 18 May 2004). 28 COM(2005)490, Article 4.1.b. Belgium has decided to use thematic NCPs, which does not necessarily mean that the other signatories will do the same. The Institut national de criminalistique et de criminologie, for example, which is under the jurisdiction of the Ministry of Justice, will be the Belgian NCP for DNA data, and the Federal Police, under

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Moreover, the nature of these agencies is not established. Here, too, the Treaty departs from the methodology chosen by the ‘principle of availability’ which requires Member States to restrict the use of data exchange to law enforcement authorities as well as for Europol officers, in theory, to police and custom services.29 The fact that Prüm does not address this question makes us speculate that it will extend, as a general rule and not as an exception, the use of data exchange to secret services of signatories. As regards the sort of ‘data’ transferred, Article 16 states quite clearly that it will comprise personal data and other information, such as surname, first names, data and place of birth and a description of the circumstances giving reason for the ‘belief’ that the person involved may commit a criminal act. Here the national contact points will have the possibility to give reasons why they fear that a particular individual is threatening, but this will not take place for the sake of accountability but as complementary information deemed necessary for ‘preventive purposes’. Moreover, the Convention does not specify the existence of conditions, limitations or requirements for the inclusion of a person/suspect (and his/her personal data plus other information) in this transnational system of data exchange. The only two requirements for the supply of personal information are that it has to be in compliance with national law and provided in individual cases. Further, the Convention states that ‘the supplying authority may, also having as basis national law, restrict or impose conditions to the use made of such data by the receiving authority’. The latter will be bound by these conditions. Here, the underlying assumption is that whatever circumstances are used to justify the transfer of personal data and information, they will be taken as ‘real’, and therefore unquestionable. This is disputable in a field rife with human rights concerns. Actually, the Explanatory Memorandum expressly mentions the observance (though not compliance) of the Convention with the rights provided by the Charter of Fundamental Rights of the Union (which continues to be non-legally binding)30 and the European Convention for the Protection of Human Rights and Fundamental

the jurisdiction of the Ministry of Interior, will be the NCP for collecting and exchanging fingerprints, personal and non-personal data. See ‘Demande d’explications de M. Berni Collas au vice-premier ministre de l’Intérieur’ sur ‘Le Traité de Prüm relatif à l’approfondissement de la coopération transfrontalière, notamment en vue de lutter contre le terrorisme, la criminalité transfrontalière et la migration illégale’ (n° 3-1246) , retrieved from http://www.senate.be/ crv/3-145.html#_Toc125279214. 29 COM(2005)490 final, Explanatory Memorandum, p. 2. Further, the Explanatory Memorandum provides that ‘The purpose of the action is to empower national law enforcement authorities and Europol to obtain necessary law enforcement relevant information that is accessible in one of the Member States.’ 30 The Charter of Fundamental Rights of the Union, 2000, OJ C-364/1, (7 December 2000).

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Freedoms (ECHR).31 In practice, however, human rights disputes might arise in relation to: 1. The right to respect private life (data protection), as recognized by Article 8 of the ECHR and, equally protected by the Council Directive 95/46 on the protection of individuals with regard to the processing of personal data.32 2. The possibility ‘for measures under this Convention to remain subject to suitable judicial review’ – right to an effective remedy as stipulated by Article 13 of the ECHR. The protection of personal data processed in the framework of police and judicial cooperation in criminal matters has been the subject to a Commission Proposal for a Framework Decision published in October this year. This initiative acknowledges the lack of adequate safeguards and effective legal remedies for the transfer of data in the EU Third Pillar, and the need to ensure the strict observance of data protection in these areas of cooperation.33 Prüm, however, weakens this initiative. Further, the power granted to the NCPs (‘security services’) may often lead to cases where their imagination, creativity and self-perception of threat may take predominance and lead to human rights disputes. This system does not offer any guarantees whatsoever that while the exchange of information takes place, data protection, as provided in the EU and European legal framework, will be respected. One question strengthens this concern: What is the democratic and judicial accountability against which these domestic authorities are subject? A minimalist answer is found in Article 16: ‘the powers of the national contact point shall be governed by the national law applicable.’ Thus, it will be for each Contracting Party to determine the conditions under which control and review of their actions will be undertaken. The second area covered by Chapter 3 of the Prüm Convention is the so-called ‘Air or sky marshals’. By ‘air marshals’, the Convention means ‘police officers or other suitably trained officials responsible for maintaining security on board aircraft’. The phrase ‘or other suitably trained officials responsible for maintaining security’ is too broad and grants a wide room for action to the Contracting parties. This leaves a door open for the states to decide the authority that will carry out these functions. The possibility for the military or the private sector to get involved in this task is also critical regarding the accountability and democratic control of these armed security agents in planes. Article 17 gives the power to the contracting States to decide for themselves to deploy ‘air marshals’ or ‘security escorts’ on aircraft registered in a 31 European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950. 32 Council of the European Union, European Council Directive 95/46/EC of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, OJ L 281, (23 December 1995), pp. 0031-50. 33 European Commission, Proposal for a Council Framework Decision on the protection of personal data processed in the framework of police and judicial co-operation in criminal matters, COM(2005) 475 final, (Brussels, 4 October 2005).

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contracting party. After 9/11, the US demands to arrange for armed air marshals to accompany some flights from the EU are well known. The introduction of this initiative was the subject of long discussions and raised serious concerns on grounds of liberty. It has also raised concerns as to the role of the ICAO (International Civil Aviation Organization) and questions of competence as regards the deployment of air marshals.34 Although the Scandinavian EU Member States in particular have been clearly opposed to this security measure, the Prüm signatories have taken this opportunity to provide a positive response to transatlantic security demands. Developing an air marshal programme among the seven Contracting states may have been considered the best solution in order to prevent the cancellation or disruption of flights to the US.35 The Convention therefore provides, outside the EU dimension, a general agreement on ‘transport and aviation security’. Once again, this opens serious questions regarding the compatibility of the Convention with the principle of solidarity and good faith as inserted in the Treaty on the European Community (TEC). It seems that the seven privileged States have chosen to disregard the current disagreement about this contested topic at EU level. It shows, too, how this sort of intergovernmental cooperation tends to be (mis)used to easily pass and agree on a series of policy measures that would be very difficult to reach agreement on under the EU framework. The only condition stated by the Convention for deployment of air marshals is to enact a written notice of their deployment at least three days before the flight in question. According to Annex 1 of the Convention, the notice shall contain the following information: 1) Period of deployment, showing the planned length of stay, 2) flight details, 3) number of members of the air marshal team, 4) full names of all members, 5) passport numbers, 6) make, type and serial number of arms, 7) amount and type of ammunition and 8) equipment carried by the team for the purposes of its duties.

34 For a detailed analysis of the different actors involved in ‘security and air transport’, see Y. Poincignon, ‘Aviation civile et terrorisme: naissance et enjeux d’une politique européenne de sûreté des transports aériens,’ Cultures et Conflits. Retrieved from http://www.conflits. org/document.php?id=1632. 35 A similar critical response to the American pressure has been recently witnessed by the Passenger Name Record (PNR) and the introduction of biometric technologies in passports of EU citizens. The ECJ has ruled that the EU handover of passenger data to US authorities should be annulled. Opinion of Advocate General Léger Affaire 317/04, Parlement européen contre Conseil de l’Union européenne. On PNR, see Council Directive 2004/82/EC of 29 April 2004 on the obligation of carriers to communicate passenger data. On Biometric identifiers, see Proposal for a Council Regulation amending Regulation (EC) No. 1683/95 laying down a uniform format for visas and Regulation (EC) COM(2003) 0558 final-CNS 2003/0218, and the Proposal for Council Regulation (EC) No. 1030/2002 laying down a uniform format for residence permits for third-country nationals, COM(2003) 0558 final-CNS 2003/0218, 24 September 2003.

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The exception to that norm has been also inserted in Article 17. The argument runs thus: ‘in the event of imminent danger, notice must be given without any further delay, as a rule before the aircraft lands’. But the concrete meaning and scope of ‘imminent danger’ is not explained by the Convention. We are now familiar with the political and media discourse which call for a ‘permanent state of danger or emergency’. This argument may, in the future, provide the justification for a permanent deployment of air marshals. As we have witnessed in many other areas, the possibility for the ‘exception’ to become the norm is higher than some would have us agree. Finally, the Convention establishes a common training mechanism of assistance by which the contracting parties will assist one another in the training of air marshals. They will also cooperate closely on matters concerning ‘air marshals’ equipment’. In this regard, Article 18 sets out the conditions for granting air marshals the permission to carry arms, ammunition and equipment. In particular, it provides that ‘the Contracting parties shall, upon request, grant air marshals deployed by other Contracting Parties general permission to carry arms, ammunition and equipment of flights to or from airports in Contracting Parties’. Some restrictions are nonetheless inserted in Paragraph 2. It specifies the conditions against which the carrying of arms and ammunition shall be subject to: 1. Those carrying arms and ammunition ‘may not’ disembark with them from aircraft at airports or enter restricted-access security areas at an airport; 2. The arms and ammunition ‘must’ be deposited for supervised safekeeping in a place designated by the competent national authority. 3.2 Illegal immigration One of the key fields of cooperation of the Prüm Treaty is illegal migration. Chapter 4 of the Treaty, entitled Measures to combat illegal migration, provides the nuts and bolts which Prüm is intended to add to the existing EU acquis in the field. One of the key problems with EU action in this field is the lack of a definition that is not handicapped by complete circularity.36 Thus when the EU comes to define illegal migration, the definitions invariably have recourse to national law. It is for national law to define who is illegal and what illegal migration is and those definitions, however formulated at the national level, are aggregated into a definition at the EU level. This way of arriving at a definition of illegal migration is highly unsatisfactory as it means that there is no common or external reference point against which the 36 At best, there is a minimalist definition of who is illegally staying in the EU. The Proposal for a Directive of the European Parliament and the Council COM(2005) 391 final of 1 September 2005 on common standards and procedures in Member States for returning illegally staying third-country nationals defines ‘illegal stay’ as ‘the presence on the territory of a Member State, of a third country national who does not fulfil, or no longer fulfils the conditions for stay or residence in that Member State.’ (Article 3.b).

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status of a particular individual can be determined to be regularly or irregularly present at any given time. This unsatisfactory state of affairs is compounded by an unfortunate tendency of EU institutions to make reference to illegal migration towards the EU, thus giving rise to the idea that one can determine illegal migration before an individual has arrived at a border. This is hard to embrace unless border officials are posted abroad and determining admission to the EU before the individual leaves a third country. Even then, the individual who is refused admission is not an illegal migrant as he or she has never even come close to the EU border which is central to the definition. The Prüm Treaty does not take us any further towards a viable definition of illegal migration. Yet it does seek to build on EU law regarding the operation of border officials outside the territory of the EU. Article 20(1) provides that ‘on the basis of joint situation assessments and in compliance with the relevant provisions of […] Regulation 377/2004 […] on the creation of immigration liaison officers network, the Contracting Parties shall agree on the seconding of document advisers to States regarded as source or transit countries for illegal migration’. Three aspects of this provision bear reflection. First, in light of Article 10 TEC, the good faith obligation of the Member States, is it not questionable whether a small group of Member States can seek to act under the auspices of an EC Regulation but outside its scope? We think this constitutes: a) exclusion of the guardian of the treaties, the European Commission; b) disbarment of the European Court of Justice, which is responsible for interpreting EU law; d) circumvention of the European Parliament, which is entitled to co-decision in the adoption of legislation is this field and has battled long and hard to ensure that delegated powers even to the Council do not interfere with its prerogatives; and e) rather impractical in that the liaison officers of non-Prüm states are participating in the network and it would be rather difficult to determine when a liaison officer is acting under Prüm and when under the Regulation and thus engaging all the other liaison officers of the Member States or only those of the Prüm parties. Article 20.3 provides that in seconding document advisers, the parties may entrust one of their number with specific coordination tasks. This is both legally and practically problematic as regards the liaison officers of the 25 and their entitlement to information under the Regulation against the exclusivity that is at the heart of Prüm, reserving extra information for only the participating few. The Treaty is quite specific about the role of the document advisers. Article 21 provides that they have three main tasks: a) advising a party’s representatives abroad on passport and visa matters. b) advising and training carriers on detection of false documents and c) advising and training host country border control authorities and institutions. The intention that the contracting parties will develop a useful knowledge base that they will share only among themselves and exclude the other 18 Member States is rather offensive to the others. It is also clearly self-defeating. As five Member States are also full participants in the Schengen acquis (and it is expected that the new Member States, all of whom are excluded from Prüm, will be joining Schengen in 2007) but outside Prüm, their officials (who are not privy

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to the additional useful information) will continue to admit third country nationals whom the Prüm participants might consider to be an illegal migration risk. Once in the Union, these third country nationals will be entitled under EU law to free access to the whole of the territory of the Schengen 12, including all the Prüm states. Thus, it seems ambiguous to proceed down this route of privilege for some when the consequences of privilege are exactly zero because of the success of the completion of the internal market. Article 23 provides for assistance with repatriation measures. Again, this area is the subject of a Council Decision (2004/573) and a Directive (2003/110).37 Thus, all of the concerns expressed above about overlapping competence and lack of respect for Article 10 EC are also valid as regards this article. The provision calls for the Prüm parties to assist one another with repatriation measures, including assistance in cases of transit. Participants shall inform one another of planned repatriation measures in good time and give the others a chance to participate. Arrangements for escort and security are to be agreed separately. Also repatriation via another party’s territory is to be resolved by negotiation in compliance with the law of the state through whose territory the repatriation is to take place. A working group is being established to assess results of operations and resolve problems. A new element arises in this section which is important – that is, the reference to the national law of the state through whose territory action is taken. The principle that is being inserted is that of retention of sovereignty by the Prüm states over activities of repatriation occurring on their territory. Contrary to some of the moves under consideration at the EU level to ensure that decisions of repatriation should have consequences across the common territory. This provision breaks up the common EU territory into its national constituent blocs once again for the purpose of determining the legality of repatriation. While this may be beneficial for a third country national who is being repatriated via a number of states – as he or she may counter the repatriation under the national law of each of them separately – it does not take EU integration much further. If anything, it will discourage any Member State planning repatriation via the territory of another party from pursuing such a route, as this is likely to be time consuming and fraught with difficulty. 3.3 The logic and implications of data exchange In the previous section, we have outlined the main threats that Prüm poses. We also alluded to the instruments (data exchanges) used by the signatories. We now turn our attention to the implications of these exchanges.

37 Council of the European Union, Council Decision on the organisation of joint flights for removals from the territory of two or more Member States, of third-country nationals who are subjects of individual removal orders, (Brussels, 29 April 2004). Council of the European Union, Council Directive 2003/110/EC on assistance in cases of transit for the purposes of removal by air, (Brussels, 25 November 2003).

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Member States have increasingly become advocates of data exchange to combat illegal migration, organized crime and international terrorism.38 The Prüm Convention takes a similar approach. There are three principal actors involved in the transnational transmission of data: 1) The state that holds the data and which may or may not transmit them; for this state, the key is ownership of the data and the right to transmit to another state or not and under what conditions. 2) The state that seeks data: under what conditions may the state require another state to provide data and what type of data can it require another state to provide? 3) The data subject: on what basis is the collection, retention and manipulation of data permissible (and therefore lawful); on what basis are the rights of the data subject regarding collection, retention and manipulation protected if data on him or her are transmitted to another state? The relationship of these three actors has been under increasing strain over the past few years in the material fields under consideration in the Prüm Treaty – terrorism, cross-border crime and illegal immigration. This is due, in part, to the fact the exponential development of technical capacities in respect of data has created possibilities that were not even dreamt of ten years ago. Data held by states on individuals have mushroomed in all these fields. As a consequence, states are intent on acquiring access to national data of their neighbours where it might aid their work against terrorism, cross-border crime committed by illegal migrants. These developments rest on the belief that data represent a form of knowledge that increases a state’s power. Thus, authorities that hold data are anxious to retain control over that data. However, in liberal democracies there is deep concern about the holding of personal data on citizens, which is expressed in the constitutions of many Member States as a right of the individual against the collection, retention or manipulation of personal data by state authorities except in those situations where specifically authorised. Thus, states are not only anxious to ensure that their own authorities correctly apply national rules on data but also that data on their citizens do not escape their control and risk being abused by other states. The interest of the Prüm Convention in data exchange constitutes an important element of its architecture. In other words, signatories partake of the view that data exchange will bring greater security to all. In practice, it aims to facilitate the trade of the following types of data: DNA profiles, fingerprints, vehicle registration, nonpersonal and personal data. The supply of these is carried out by a national contact point whose powers are governed by the national law of contracting parties. Rather than addressing all these instruments, let us spell out probably the most contested, namely: the transferring of DNA profiles. Clearly, Prüm pays special attention to the role of biometric identifiers in the transferring of data.39 Among biometric identifiers, DNA has emerged as one of the 38 See the debate between C. Clarke and A. Alvaro in Parliament Magazine, No. 212, October 2005, pp. 46-49. 39 On biometric and human rights, see J. Redpath, ‘Biometrics and International Migration’, International Migration Law, No. 5, (2005); M. L. Johnson, ‘Biometric and the Threat to Civil Liberties’, Computer, Vol. 27, No. 4, (2004): 90-91.

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most efficient if sensitive tools in criminal investigations. This lends credence to the idea that the establishment of national DNA analysis files and the automated searching and comparing of DNA profiles advance security throughout Europe. However, under the proposed ‘principal of availability’, the Prüm Convention is regarded as restricted in scope and content. For example, it does not contain the possibility to request telephone numbers and other communications data or ballistics. Indeed, the proposal for a Council Framework Decision on the exchange of information under the principle of availability widens the types of data collected.40 In addition to DNA profiles, fingerprints and vehicle registration information, it intends to make available the following types of information: ballistics, telephone numbers and other communications data, with the exclusion of content data and traffic data unless the latter data are controlled by the designated authority, and minimum data for the identification of persons contained in civil registers. Unlike the proposal for a Council Framework Decision, the Convention does not ‘entail any obligation to collect and store information…for the sole purpose of making it available to the competent authorities of other Member States.’41 Rather, it stipulates that ‘where, in ongoing investigation or criminal proceedings, there is no DNA profile available for a particular individual present within a requested Contracting Party’s territory, the requested Contracting Party shall provide legal assistance by collecting and examining cellular material from that individual and by supplying DNA profile obtained’ to the requesting state.42 Prüm introduces some safeguards for the transferring of data collected. Article 2.2 provides that ‘reference data shall only include DNA profiles established from the non-coding part of DNA and a reference. Reference data must not contain data from which data subject can be directly identified.’ Further, ‘the data subject shall be entitled to have inaccurate data corrected and unlawfully processed data deleted’. And, finally, ‘the Contracting Parties shall also ensure that, in the event of violation of his rights in relation to data protection, the data subject shall be able to lodge a complaint to an independent court or tribunal within the meaning of Article 6(1) of the European Convention on Human Rights or an independent supervisory authority within the meaning of Article 28 of Directive 95/46/EC’.43 Prüm amplifies the conventional wisdom in the security field that ‘more is better’ and that an increase in the number of databases increases security. However, insecurity is not acute because law enforcement authorities do not share enough information, but rather because they share it badly and in a multiplicity of different fora. This, in turn, generates concern about the omission of any reference to other existing databases and the lack of any indication of the extent to which, if any, synergies will be established between data collected by NCPs of Prüm on the one hand, and data gathered by EURODAC (system for the comparison of fingerprints of asylum applicants), the 40 41 42 43

COM(2005)490 final, Annex 2. COM (2005)490 final, Article 2.2. Article 7. Article 40.1.

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Visa Information System (VIS) and the Schengen Information System (SIS II), on the other hand. If the forthcoming Communication on enhanced synergies between SIS II, VIS and EURODAC (expected in 2006) is successfully applied, the database landscape of the EU will find itself split between two logics.44 Taken individually, these two groups of databases do not seem qualitatively different. Taken together, however, they will create new patterns of action, which will inevitably overlap and eventually duplicate each other. 4. Rethinking Schengen Continuity and Transformation The Treaty of Prüm bears the marks of Schengen. Notice that all of the signatory states have participated both in the Schengen Agreement 1985 and the Schengen Implementing Agreement 1990 and played a central role in intergovernmental cooperation in fields of central interest and importance to the EU. Notice, too, that signatories are participants in the decision taken in 1997 in the context of the intergovernmental conference which led to the Amsterdam Treaty which inserted the Schengen acquis into the EC/EU treaties. Prüm, then, is a new form of the ‘Schengen’ process.45 The preceding comments suggest that in examining the method of Prüm, it is important to be clear about the dynamics of Schengen. The major objective of Schengen was the abolition of all border checks across Europe. The context was, however, dominated by the fear that such sub-Union agreements could institutionalize a Europe of ‘variable geometry’.46 To reduce these concerns, Schengen members therefore framed the Convention as a ‘laboratory’ for Europe, the goal of which was, they claimed, to push European integration forward.47 However, the idea of Schengen as a ‘laboratory’ is not easy to endorse.48 In fact, the reluctance of the EU Member States to be bound by ‘hard’ EU law in the 44 European Commission, Communication on the Hague Programme, COM(2005) 184 final, (Brussels, 10 May 2005), see the annex. European Commission, Communication on the development of the Schengen Information System II and possible synergy with a future Visa Information System, COM(2003) 771 final, (Brussels, 11 December 2003), see point 1.2.2. European Commission, Communication on improved effectiveness, enhanced interoperability and synergies among European databases in the area of Justice and Home Affairs, COM (2005) 597 final, (Brussels, 24 November 2005). 45 That is why Prüm is also called ‘Schengen III’. 46 A. Stubb, Negotiating Flexibility in the European Union: Amsterdam, Nice and beyond, (London, 2002); A. Wiener, ‘Forging Flexibility: The British ‘No’ to Schengen’, European Journal of Migration and Law, Vol. 1, No. 4, (1999). 47 See R. Zaiotti, ‘Revisiting Schengen: Europe and the Emergence of a New Culture of Border Control’, paper presented at the 46th Convention of the International Studies Association (ISA), Honolulu, Hawaii, 1-5 March 2005. 48 The debate is premised on the question of whether the idea of ‘laboratory’ was arrived at ex ante or ex post. The first position is shared by almost all of the contributors to the volume published by the College of Europe, entitled Integrated Security in Europe: A Democratic

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abolition of intra-Member State border controls led to the creation of the Schengen regime through intergovernmental agreements outside EU law. Notwithstanding the Member States express commitment in the Single European Act of 1986 to undertake the dismantling of border controls among themselves within the TEC, they refused to do so and kept the process in a weaker legal framework. This process of distortion of the internal market was described by the officials promoting the mechanism of Schengen as a ‘laboratory’. One actor’s attempt to legitimize the process is Charles Elsen. He states: ‘The Schengen founders would have not worked in vain, but they would have showed a possible and feasible way, set up a laboratory for Europe and, thus, given a remarkable push forward to the construction of Europe.’49 The Commission effectively echoed this idea of Schengen as a laboratory, which emerged most strongly in Jacques Delors’ response to a written question on that issue: ‘The solutions arrived at by the Schengen group are an inspiration to Community bodies.’50 This support is hard to understand. One would not expect the ‘guardian of the Treaties’ to confer legitimacy to an initiative that, in many respects, challenges its authority. The Treaty of Amsterdam nonetheless confirmed this process by appending a Protocol on Schengen to the EC and EU Treaties.51 Article 8 of the Protocol provides that the Schengen acquis must be accepted in full by all candidates for admission.52 In other words, the Treaty of Amsterdam creates the possibility for a limited number of Member States to coordinate their activities on specific issue within the limits Perspective, Collegium-News of the College of Europe/Nouvelles du Collège de l’Europe, No. 22-XII.2001. D. Bigo, by contrast, posits that Schengen was not construed by signatories as a ‘laboratory’, at least not at the beginning of the process: ‘Nobody has clearly discussed what was the debate of the eighties and how these norms were set up.’ He continues: ‘Very often the propaganda of a Schengen laboratory in advance, in regards to the natural evolution of the EU, was considered as sufficient, but a more critical look shows that Schengen logic was clearly against freedom of movement of people and was conducted not only by fears about criminals but also about migrants, foreigners from third world countries.’ See D. Bigo, ‘Frontiers Control in Europe: Who is in Control?’, in D. Bigo and E. Guild (eds), Controlling Frontiers: Free Movement into and within Europe, (Aldershot, 2005), pp. 66-67. See also D. Bigo and E. Guild, ‘La mise à l’écart des étrangers. La logique du VISA Schengen’, Cultures & Conflits: Sociologie politique de l’international, (Paris, 2003). 49 Our translation. In French: ‘Les bâtisseurs de Schengen n’auront pas travaillé en vain, mais ils auront montré une voie possible et réalisable, crée un laboratoire d’essai pour l’Europe et, en définitive, donné un formidable coup de main à la construction européenne.’ C. Elsen, quoted in W. van der Rijt, ‘Le fonctionnement des institutions Schengen: ‘Pragmatisme, toujours’’, in M. den Boer (ed.), Schengen’s Final Days? The Incorporation of Schengen into the New TEU, External Borders and Information Systems, (Maastricht, 1998), p. 65. 50 Reply to Written Question 2668/90, O.J. C144/11. 51 See E. Philippart, ‘Optimising the Mechanism for ‘Enhanced Cooperation’ within the EU: Recommendations for the Constitutional Treaty’, CEPS Policy Brief, No. 33, (Brussels, 2003). 52 See D. Bigo, ‘Frontiers Control in the European Union: Who is in Control?’, in D. Bigo and E. Guild (eds), Controlling Frontiers: Free Movement into and within Europe.

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of what is called ‘enhanced cooperation’. As for Schengen, the results of enhanced cooperation have become binding for all state candidates for admission. Prüm starts off with seven members, five of which were Schengen initial signatories. Like Schengen, it excludes Italy. Unlike Schengen, France is not one of the central actors; Austria and Germany are. Indeed, Otto Schily, the former German Ministry of Interior, admitted that France and Spain joined the Treaty at the very last minute. ‘Because of its importance for future cross-border cooperation in preventing and prosecuting crime,’ he said, ‘I am especially pleased that France and Spain were also willing to sign the agreement at such short notice.’53 Further, like Schengen, its avowed aim is to play a pioneering role in the integration of the EU. Moreover, the exchange of information was also a key factor of the Schengen Convention signed on 14 June 1985.54 Finally, in line with the spirit of Schengen acquis, Prüm leaves open the possibility for the remaining 18 Member States to adhere to its rules and practices. This last point may turn out to be impracticable for two reasons. First, Prüm is just one Member State short of the number specified in the TEU as necessary to trigger the provisions on enhanced cooperation. In addition, enhanced cooperation would have required an approval by a qualified majority in the Council of Ministers, and the EU Commission would have had to assess whether Prüm is compatible with other institutions governing the EU. Yet, even if these conditions were met, there will still be no guarantee that the provisions defended by Prüm will be integrated in the Union as such. In fact, under the terms of the Treaty of Nice ratified in 2003, acts and decisions resulting from enhanced cooperation ‘shall not form part of the Union acquis.’55 However, there are signs that the Prüm Convention may follow a similar evolution as that of Schengen, albeit with variations in membership. First, Britain is considering seriously whether it should join the Treaty. Second, the Commission has made references to Prüm as not constituting an obstacle. For instance, the Communication from the Commission to the Council and the European Parliament on improved effectiveness, enhanced interoperability and synergies among European databases in the area of Justice and Home Affairs views Prüm as a mechanism to reduce the shortcomings in the exchange of data among Member States..56 Third, the European Parliament has not raised its voice on this issue.

53 ‘Simplified cross-border cooperation: 7-country agreement signed’ (retrieved on 6 December 2005 from http://www.bmi.bund.de/cln_012/nn_148134/Internet/Content/ Nachrichten/Archiv/Pressemitteilungen/2005/05/grenzueberschreitende__Zusammenarbeit_ _7__Laender__Abkommen__en.html). 54 See Article 46 of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders. Official Journal of the European Communities (22 September 2000). 55 TEU, Article 44.1. See also Article 43 and 45. 56 European Commission, Communication from the Commission to the Council and the European Parliament on improved effectiveness, enhanced interoperability and synergies

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The foregoing discussion reveals a vortex of ambiguities which, in turn, raises the question of the benefit of the Convention for the evolution of the EU as a whole. It also seems that Prüm has prompted a race with other EU institutions, for instance, on the nature and speed of data exchanges. Moreover, if the time required before Schengen became actually operational can be taken as a norm (some 10 years), Prüm may be outdated before it enters into force, rolling ratification notwithstanding. And if it succeeded, it will have to overcome an additional hurdle: to prove that its decisions and structures could benefit all EU members and that they do not conflict with other EU institutions in the area of freedom, security and justice. 5. Conclusions The Treaty of Prüm undermines the EU’s ability to become an efficient policymaking body in the field of security. To start with, by setting up exclusive and competitive measures that seek to address threats that affect the EU as a whole, it blurs the coherence of EU action in these fields. Second, by developing new mechanisms of security that operate above and below the EU level, it dismantles trust among Member States. Finally, by establishing a framework whose rules are not subject to Parliamentary oversight, the Convention impacts on the EU principle of transparency. These three principles – trust, coherency and transparency – are yardsticks against which Prüm should be assessed. The necessity of coherence. The provisions contained in Prüm, mainly as regards irregular migration, are incoherent. As measures that exclude third country nationals from access to the EU territory, they engage only seven of the 12 Schengen states within whose territory there is free movement of persons; thus third country nationals arriving in the EU via the five non-Prüm members avoid the extra controls of the Prüm states but have access to the territory of the Prüm states in any event. By the same token, members of Prüm have decided to set up a ‘technical group focusing on return issues [which] would be co-ordinated by France’.57 Yet, how this group will work is not clear. For instance, would it operate in accordance with the rules set out by the Council Decision 2004/573/EC and by COM(2005) 391? More fundamentally, would it work under the supervision of or in parallel with the foreseen Special Representative for a common readmission policy?58 among European databases in the area of Justice and Home Affairs, COM (2005) 597 final, (Brussels, 24 November 2005). 57 Council of the European Union, Outcome of Proceedings, 12656/05, (Brussels, 27 September 2005). 58 Council of the European Union, Council Decision 2004/573/EC of 29 April 2004 on the organisation of joint flights for the removals from territory of two or more Member States, of third-country national who are subjects of individual removal orders, OJ L 261/28, (6 August 2004). On the appointment of a Special Representative for a common readmission policy, see the Presidency Conclusion of the Brussels European Council, 4-5 November 2004. See also the Hague Programme, point 1.6.4 on Return and Readmission policy.

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The necessity of trust. As Niklas Luhman puts it, trust is the basis of cooperation.59 Prüm provides a framework for the privileged group of seven State signatories to come to a multilateral agreement on key policies that have been the subject of divergent positions among the rest of the Member States. Each chapter of the Convention includes highly debated and sensitive initiatives, whose agreement inside the Council would have been difficult. This is even more acute taking into account that according to Article 34 TEU, the unanimity rule continues to apply inside the Council of Ministers as regards third pillar-related measures. In short, the provisions developed by the Convention are negative factors to the democratic and judicial institutions of the EU since they exclude them from the development of the EU acquis. The necessity of transparency. Opening an interparliamentary assembly, European Parliament President Josep Borrell acknowledged that he had never heard of the Prüm Treaty.60 This is revealing of the way the Convention was negotiated and signed, that is, without any Parliamentary oversight. Accordingly, the European Parliament has recently proposed to move judicial cooperation on criminal matters and police to Community competence (first pillar) in order to improve transparency. This proposal should be strengthened and supported if security measures are to have any legitimacy. The intergovernmental nature of cooperation in the field of security in the EU inhibits ‘democratic check’ where a treaty is presented, already negotiated for ratification or rejection and changes are not permitted. In this sense, we could argue that Prüm ignores the European Parliament just at a time when it is achieving a more central role in law-making in this field, as called for in the provisions of the TEU. It will undoubtedly be a vexing experience for the European Parliament to see the value of its power to participate in law-making in the area diminished as the field over which it is to provide oversight is moved into an intergovernmental venue. Furthermore, the European Court of Justice is excluded at least in so far as the measures adopted under Prüm will not be subject to its jurisdiction which is limited to EC/EU treaty provisions. The time may come when the European Court of Justice is requested to give judgment on the validity of measures taken under Prüm (or indeed the project itself) – an excluded Member State or an institutional actor could bring proceedings before the Court against the Prüm participants for failure to act in accordance with their treaty obligations – but the fruit of Prüm will not be justiciable before the ECJ unless and until it is inserted into the EU/EC treaties. As a result, the Treaty leads to less Europe and a reduced capacity in the field of freedom, security and justice.

59 See N. Luhman, Trust and Power, (London, 1979). 60 J. B. Fontelles, Opening Speech by the President of the European Parliament, Parliamentary Meeting at the initiative of the European Parliament and the UK Parliament on ‘Liberty and Security: Improving Parliamentary Scrutiny of Judicial and Police Cooperation in Europe’, (Brussels, 17 October 2005).

Chapter 8

Data Surveillance and Border Control in the EU: Balancing Efficiency and Legal Protection Evelien Brouwer

1. Introduction In the ‘Hague Programme on strengthening justice, freedom and security’ of 2004, the European Council underlined the need to examine ‘how to maximize the effectiveness and interoperability of EU information systems in tackling illegal immigration and improving border control’.1 The Commission was requested to prepare a communication on the interoperability between the Schengen Information System (SIS), the future Visa Information System (VIS), and Eurodac, ‘taking into account the need to strike the right balance between law enforcement purposes and safeguarding the fundamental rights of individuals.’2 In its Communication on the implementation of the Hague Programme, the Commission links the establishment of an area where the free movement of persons is fully ensured, with the necessity of ‘an integrated control of the access to the territory of the Union, based on an integrated management of external borders, and with the support of new technologies, including the use of biometric identifiers’.3 A communication by the Commission on ‘enhanced synergies between SIS II, VIS and Eurodac’ is expected in 2006. The Hague Programme launched as well, the so-called ‘principle of availability’ as a common standard for the information sharing between law enforcement and judicial authorities in the EU Member States. This principle of availability should be distinguished from the political goal of interoperability of different systems. The principle of availability is focussed on the exchange of available information between

1 Council of the European Union, The Hague Programme: strengthening freedom, security and justice in the European Union, (Brussels, 13 December 2004). 2 On 25 March 2004, in the Declaration on combating terrorism, the European Council already invited the Commission to submit proposals for enhanced interoperability between SIS II, VIS, and Eurodac and to use this information for the fight and prevention of terrorism. 3 European Commission, Communication on the Hague Programme: Ten priorities for the next five years, COM (2005) 184, (Brussels, 10 May 2005).

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different national authorities and agencies for law enforcement purposes only.4 Interoperability of databases means the effective interlinking of different databases. However, one should be careful that this principle of availability is not ‘misused’ by politicians as a motive to interconnect any system for any goal whatsoever. The new emphasis on the exchange of information and interoperability of different systems goes hand in hand with two important features of recent EU policy. In the first place, this policy directly links border and immigration control to the safeguarding of internal security and the fight against terrorism. Databases set up at the EU level for entirely different purposes, should be all available for law enforcement purposes and anti terrorism measures. As a result, especially third country nationals travelling into or residing in EU countries will be the object of these new measures. As an unprivileged group, they are left without or with few rights when confronted with extra controls and possible wrongful identification. In the second place, EU policy makers tend to degrade the meaning of fundamental rights of data protection and privacy, by upgrading other public interests or tasks. Describing these rights merely as a ‘notion’, privacy and data protection are thus opposed to the ‘collective right to security ‘or to ‘the principle of availability’.5 The new emphasis on ‘securitization’ undermines as well another fundamental principle of European law: the freedom of movement.6 Freedom of movement is difficult to achieve if national authorities have the possibility to control people always and everywhere, in- and outside the EU territory. In the light of these developments, two questions are becoming more and more important. Firstly, how do EU policy makers, drafting these plans, assess the efficiency and added value of data surveillance mechanisms? Based on the saying ‘less is more’, one could wonder what effectively can be achieved by allowing authorities to collect more and more information. This question arises especially when the practice shows that national databases often are not reliable and authorities lack the financial and human resources to analyse the already available information. Secondly, is the legal protection of individuals stored into these database sufficiently taken into account in the decision making process? Both The Hague Programme and the Communication of the Commission refer to the necessity to strike the right balance between law enforcement purposes and the fundamental rights of individuals. Perhaps it should be made clearer that this balance includes the fundamental rights of third country nationals confronted with border control or immigration decisions based on information systems described above. 4 European Commission, Commission proposal for a Framework Decision on the exchange of information under the principle of availability, COM (2005) 490, (Brussels, 12 October 2005). 5 See for example, the speech F. Frattini, Commissioner for Justice, Freedom and Security, held at a meeting with the Joint Supervisory Authorities under the third pillar, on 21 December 2004, Speech 04/549, p. 4. 6 See D. Bigo and E. Guild, ‘Policing at a Distance: Schengen Visa Policies’, in: D. Bigo, E. Guild (eds.) Controlling Frontiers. Free Movement into and within Europe, (Aldershot/ Burlington, 2005), pp. 233-ff.

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In the first part of this contribution, I will give an overview of recent developments with regard to ‘data surveillance and border control’ in the European Union. I will describe the actual use and content of SIS, the development of the so-called second generation SIS (SISII) and other databases, and the future plans with regard to the use of biometrics and the interconnection of different databases. In the second part, I will underline the importance of making the right choices at the right moment. Whether this concerns technical, political, or legal matters: the choices which are made now at the EU level, will have a major effect on the future protection of individual rights and liberties. 2. SIS: its Purpose and Actual Use The Schengen Information System (SIS) is a large-scale data base which has often been described as the keystone for the abolishment of internal border control between the Schengen States. SIS is operational since 26 March 1995 and is regulated in the Schengen Convention of 1990 (hereafter referred to as the SC). Starting with only the three Benelux countries and France and Germany, SIS is meanwhile used by 15 states: thirteen EU Member States, and, on the basis of a separate agreement, Iceland and Norway. In the near future, SIS is to be used by at least 28 European States. UK and Ireland are negotiating to get access to SIS. With the Swiss referendum of 5 June 2005, Switzerland recently agreed to sign the Schengen Convention which includes the use of SIS. The accession of Switzerland is provided for in 2008. Finally, dependent on whether these countries provide for sufficient technical and legal guarantees, the 10 new EU Member States are planned to get access in 2007 to the second generation SIS (see section 3.2). The SIS includes more than 15 millions records on objects and persons.7 Approximately 900.000 of these records concern persons who are wanted for different purposes in accordance with the categories provided for in the SC. These categories include: – persons wanted for arrest or extradition (Article 95 SC); – third country nationals (non EU and non EEA citizens) to be refused entry (Article 96 SC); – persons missing or to be placed under temporary police protection (Article 97 SC); – witnesses or other persons summoned to appear in court (Article 98 SC), and; – persons (or vehicles) wanted for ‘discreet surveillance’ or specific checks (Article 99 SC).

7

See the figures in the tables included in this section.

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Whether a national authority has access to SIS, depends of the purpose for which a person or object has been stored into SIS. Each year, a list of competent authorities, authorized to search directly SIS, should be forwarded to the Council.8 About 90 % of all data on persons stored into SIS concerns data on third country nationals to be refused entry. Article 96 SC provides for two categories of third country nationals to be stored into SIS for the purposes of refusal of entry. Firstly, this storage may be based on public order or national security grounds, including a conviction for an offence which is penalized by a deprivation of liberty of at least one year. This category also includes persons against whom there is a serious suspicion of believing he or she has committed serious criminal offences, or when there is a clear evidence of an intention to commit such offences on the territory of one of the Schengen States. Secondly, persons can be recorded into SIS when they have not complied with national immigration law, and therefore have been subjected to measures of deportation, refusal of entry, or removal. These criteria of Article 96 SC are not very transparent or limitative and are being applied very differently in the contracting States. Until now the national practice has not been reviewed, but the Schengen Joint Supervisory Authority (hereafter JSA) has initiated in 2003 a coordinated evaluation on the national implementation of the Article 96 criteria, to be carried out by the national data protection authorities. Initial findings have been published in a report of 20 June 2005 of the JSA of June 2005.9 Based on this report and available national reports, one can conclude that the Schengen authorities are applying the Article 96 criteria very differently and that data stored into SIS do not always meet the criteria of Article 96. Further, national data protection authorities discovered that time limits for the storage of these data are very often exceeded.10 These findings show that the reliability of the information stored into SIS is questionable, that national authorities are using SIS for different purposes, and that authorities disregard the rules protecting the rights of individuals such as time limits. The lack of centralized, regularly updated information makes it difficult, not to say impossible, to asses the added value and practical usefulness of SIS. The last annual report on the implementation of the Schengen Convention of the Schengen Executive Committee appeared in 1999: this report held data on the use of SIS in 1998. After this report, information on the amount of records in SIS in 2000 and 2001 were only published accidentally and by different organizations. For example, the JSA published in its fourth and fifth annual report, data on the content of the SIS. 8 Council of the European Union, Document no. 6265/1/03 and no. 16023/04, (10 December 2004). 9 Oddly enough, the JSA report on this evaluation appeared in the summer of 2005 on the website of the Danish Data Protection Authority and on the website of the human rights organization Statewatch, (retrieved from: www.statewatch.org), but not at the website of the JSA itself (retrieved from: http://www.schengen-jsa.dataprotection.org/). 10 See the critical report of the Danish Data Protection Authority of 10 June 2005, published at www.statewatch.org. See also B. Hayes, ‘SIS II: fait accompli?’, Statewatch analysis, May 2005.

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However no such information was included in the sixth report of the JSA on 20022003. There are some statistical data included in the ‘Report of the ad hoc group for the study of 3rd pillar information systems’ of the Council in 2003.11 Between 1999 and 2005, the following information can be derived from different reports on the total amount of records on persons in SIS.12 199913 Total of persons entered into SIS: 855.887 Article 95: 10.419 Article 96: 764.851 (89 %) Article 97: 27. 436 Article 98: 35.806 Article 99: 17.365 200014 Total of persons entered into SIS: 842.255 Article 95: 10.914 Article 96: 750.347 (89 %) Article 97: 28.362 Article 98: 35.297 Article 99: 17.335 200115 Total of persons entered into SIS: 803.160 Article 95: 11.628 Article 96: 709.763 (88 %) Article 97: 29.132 Article 98: 30.763 Article 99: 21.874 200316 Total of persons entered into SIS: 877.655 Article 95: 14.023 Article 96: 780.992 (89 %) Article 97: 32.211 Article 98: 34.413 11 Council of the European Union, Document no. 8857/03, (6 May 2003). 12 The author did not find any information on 2002. 13 31.12.1999, source: Justice report, The Schengen Information System. A human rights audit, (London 2000). 14 23.05.2000, source: C.SIS Exploitation team, 4th annual report Schengen Joint Supervisory Authority (2000). 15 28.02.2001, source: 5th annual report Schengen Joint Supervisory Authority. 16 5.03.05, source: B. Hayes, ‘SIS II: fait accompli?’.

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Article 99: 16.016 200417 Total of persons entered into SIS: 883.511 Article 95: 14.902 Article 96: 785.631 (89 %) Article 97: 34.400 Article 98: 32.696 Article 99: 15.882 With regard to the numbers of ‘hits’ based on SIS, or in other words the number of times authorities find a record in SIS on individuals checked by these authorities, Article 96 hits produces the largest part. Data on hits are annually reported by the national SIRENE bureaux to the General Secretariat of the Council. The last update on the period between 1 January and 31 December 2004 has been published in 2005.18 Looking at these data between 1997 and 2004, hits on third country nationals based on article 96 SC concerned about 60-70 % from the total amount of hits on persons.19 In 2004, the percentage of hits on third country nationals dropped to 57 % of the total amount of hits. This could be explained by the increasing percentage of hits based on the other categories of data stored into SIS. Relatively, however, if you compare the numbers of hits with the numbers of entries for each category, you see that reports on third country nationals to be refused entry, are the least successful. This is illustrated by comparing the figures of 2001 and 200420: In 2001: Article 95: 2.841 hits, which is 24% of the total amount of records on article 95; Article 96: 26.363 hits: 3,7 % Article 97: 3.661 hits: 6 % Article 98: 1.779 hits: 12 % Article 99(persons): 2.232 hits: 10,2 % The figures of 2004 show even a lower percentage of hits on third country nationals, compared with the number of records based on Article 96 SC in SIS: Article 95: 3.813: 25,6 % 17 Report from the C.SIS Exploitation team, (01 January 2004). 18 Council of the European Union, Document no. 6335/05, (23 February 2005). 19 In 1997, third country nationals to be refused entry concerned 66 % of the total number of hits (14.806 of a total 22 475). In 2003 this was 71,5 % (26.363 of a total of 36.876), compare to the hits based on article 95: 7,7%; Article 97: 4,8%; Article 98: 10%; and Article 99: 6%. 20 Source: Council of the European Union, Document no. 6335/05.

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Article 96: 21 957: 2,8 % Article 97: 1.984: 14,4 % Article 98: 4.945: 15,1 % Article 99 (persons): 2.989: 18,8 % Based on these statistical data, one could conclude that the registration of third country nationals into SIS, in practice is less effective compared with the records on persons stored for other purposes into SIS. This information should be considered when assessing the added value of recording information on third country nationals to be refused entry in the EU territory. Even if information stored into SIS concerns for a large majority third country nationals to be refused entry, the number of hits and therefore the actual effects of this storage are relatively small compared to the number of hits on other categories of persons stored into SIS. 3. New Functionalities of SIS and the Development of SIS II 3.1. Piecemeal approach: actual amendments of SISI It is important to differentiate between the development of the second generation SIS (SIS II) and the actual amendments which have already been made or proposed for the present SIS.21 Apart from the development of SIS II (planned to be operational in 2007, see paragraph 3.2) the EU Member States have been negotiating different amendments of SIS. In 2001, Spain submitted a proposal for a Decision and a Regulation on new functionalities for SIS. The Regulation has been adopted on 29 April 2004.22 It provides for a legal basis for the information sharing by SIRENE offices, includes the possibility to add extra information to records held in SIS23, and gives visa authorities the possibility of access to information on stolen identity papers. The Regulation includes as well the duty to make a record of every transmission of personal data instead of every tenth transmission, which allows the check of unlawful use of SIS. The EU Council adopted the Decision on new functions for SIS on 24 February 2005.24 This Decision provides for the access for Europol and Eurojust to SIS, however this access is limited to their judicial and police tasks and does not include data of Article 96 or 97 SC.

21 B. Hayes, ‘SIS II: fait accompli?’. 22 Council of the European Union, Regulation 871/2004 concerning some new functions of SIS, OJ L 162, (30 April 2004). See for the decision fixing the date of application of certain provisions of this Regulation, Council decision 2005/728/JHA, 12 October 2005, OJ L 273/26, (19 October 2005). 23 This includes information on whether a person previously escaped from detention. 24 Council of the European Union, Council Decision 2005/211, OJ L 68/44, (25 March 2005). See for the decision fixing the date of application of certain provisions of this Decision, Council decision 2005/719/JHA, 12 October 2005, OJ L 271/54, (15 October 2005).

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Based on Article 9 of the Framework Decision on the Arrest Warrant of 13 June 2002, information on arrest warrants may be included into SIS in accordance with the provisions of Article 95 of the Schengen Convention.25 Further, on 24 January 2005, the Council adopted a common position on the exchange of information on stolen and lost passports between the ‘SIS countries’ and Interpol. Member States should, whenever they enter data on stolen passports in national databases or SIS, exchange these data immediately as well with Interpol. Finally, the Council adopted in June 2005 a Regulation to give vehicle registration authorities access to SIS data on stolen cars.26 3.2. Second generation SIS or SIS II: a ‘flexible tool’ Since 2001, Member States are preparing the development of the so-called ‘second generation SIS or SIS II’. The initial reason for SIS II was the technical need to make SIS applicable for a larger group of states, after the accession of the 10 new Member States to the EU on 1 May 2004. From the beginning, however, the development of SIS II has been used for political discussions on possible new requirements or functions of SIS as well. Between December 2001 and June 2004, political agreement has been reached on the following functions: 27 – SIS should remain hit-not hit based information system; – it should be possible to interlink different alerts (which would allow authorities to check whether persons/object are registered in SIS for different purposes); – the (non-mandatory) insertion of photographs; – the (non- mandatory) insertion of fingerprints to be applicable to all alerts (95-99). During the meetings of the Council, other categories of data to be included into SIS have been proposed but not agreed upon. These proposals included violent troublemakers, animals, works of art, and minors to be precluded from leaving the Schengen area. Regardless of the fact that on the political level, the decision on the final functions of SIS II is still awaiting its adoption, technically this system is already 25 Council of the European Union, Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States - Statements made by certain Member States on the adoption of the Framework Decision, OJ L 190, (18 July 2002). 26 Council of the European Union, Council minutes of 2-3 June 2005, Document no. 8849/05. This decision of the Council is based on a proposal of the European Commission, COM (2003) 510, and takes into account three amendments of the European Parliament. See Council of the European Union, Document no. 8524/05. 27 New requirements SIS – Council Conclusions: Document no. 9773/02; 9808/03, and 10125/04.

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being developed to allow for various new functions. According to the principle of a ‘flexible tool’, the Council decided in June 2003, to instruct the IT companies which are developing SIS II, to design SIS II as such to allow for new requirements whenever this is necessary. These possible new functions would include the addition of new categories of data, the modification of the duration of alerts, the storage of biometric data (especially photographs and fingerprints), and the possibility of new authorities receiving access to the SIS. The multiple use of SIS is already invoked by various new measures which provides for the access or use of SIS information by other organizations, like Europol, Interpol, national vehicle registration authorities, and Eurojust. But, as we saw above, apart from the access of Europol authorities to SIS, the Commission announced as well to study the ‘development of links between SIS II and the Europol information system’ before 2007.28 On 31 May 2005, the European Commission published three legislative proposals on the second generation SIS.29 In these proposals, the categories of alerts or records to be kept in SIS remain almost unmodified. The draft Regulation includes a new drafting for the registration of third country nationals into SIS, which is based on a more harmonized approach for the conditions on the basis of which third country nationals may be recorded into SIS. 4. Other EU Databases and the Use of Biometrics 4.1. Eurodac Eurodac is a large scale EU database which includes fingerprints of asylum seekers and illegal immigrants seeking access to one of the European Member States. Eurodac became operational on 15 January 2003.30 This database is based on the Dublin Convention of 1990 including rules for the establishment of the State which is responsible for an asylum application in the EU. This Dublin Convention has been replaced by the Council Regulation 343/2003 (Dublin II) of 18 February 2003. The purpose of Eurodac is to facilitate the determination of the responsible State, by 28 European Commission, Communication on the Hague Programme: Ten priorities for the next five years, p. 20. 29 European Commission, Proposal for a Regulation of the European Parliament and of the Council on the establishment, operation and use of the second-generation Schengen Information System (SIS II), COM (2005) 236, (Brussels, 31 May 2005); European Commission, Proposal for a Council Decision on the establishment, operation and use of the second-generation Schengen Information System (SIS II), COM (2005) 230, (Brussels, 31 May 2005); European Commission, Proposal for a Regulation of the European Parliament and of the Council regarding access to the second-generation Schengen Information System (SIS II) by the services in the Member States responsible for issuing vehicle registration certificates, COM (2005) 237, (Brussels, 31 May 2005). 30 European Commission, Programme for police and judicial cooperation in criminal matters (Programme AGIS) - Annual work programme and call for applications for 2003, OJ C 5, (10 January 2003).

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controlling in which country an asylum seeker has forwarded his or her application for the first time, or in which country he or she stayed previously. Based on a socalled ‘hit’ which occurs when transmitted fingerprints match with the fingerprints already stored into Eurodac, Member States can retrieve whether an asylum seeker has stayed previously in another Member State. National authorities should forward to the Central Unit of Eurodac the fingerprints of all individuals aged 14 years or over, who make applications for asylum, or who were apprehended when crossing illegally the borders. The Central Unit will check whether the fingerprints forwarded by the national authority are already stored into the system. If so, the national state will be informed on this ‘match’ and on the Member State which previously forwarded the fingerprints. States may also forward fingerprints on persons found illegally present within their country. Eurodac only holds fingerprints and an identification number, but no name or other personal data. The data stored into Eurodac may only be checked to establish whether another Member State is to be held responsible for the asylum application. A first annual report on Eurodac has been published by the Commission on 5 May 2004.31 According to this report, from 15 January 2003 to 15 January 2004, 271.572 fingerprints were successfully transmitted to the central authority. From a total of 246.902 asylum applications recorded by Eurodac, 17.287 concerned persons who made already an asylum application before either in another contracting state or in the same state. With other words, 7 % of the cases recorded into Eurodac, included multiple asylum applications. According to the second annual report on Eurodac, published on 20 June 2005, from the total of 232.205 asylum applications recorded by Eurodac in 2004, 31.307 cases show that the same person has already made at least one asylum application before.32 This means that the percentage of multiple asylum applications detected by Eurodac increased from 7 % in 2003 to 13, 5 % in 2004. The Eurodac reports do not provide information on whether these ‘hits’ lead to the transfer of persons to the Member State which is responsible for asylum application and thus whether by the use of Eurodac the goals of this system are actually achieved. Where the first report does not include any information on this question, the Commission concludes in the second report that Eurodac is ‘functioning well’ as regards the number of requests to take back or to take charge of an asylum seeker submitted by one Member States to another. The second report does not include explicit figures to support this conclusion. According to the Commission, they derive from a pilot project managed by the Commission services according to which 67 % of the total requests to take back or to take charge of an asylum seeker are based on Eurodac hits. Worrying is that according to the second annual report, the number of ‘special 31 European Commission, First annual report to the Council and the European Parliament on the activities of the EURODAC Central Unit, SEC (2004) 557, (Brussels, 5 May 2004). 32 European Commission, Second annual report to the Council and the European Parliament on the activities of the EURODAC Central Unit, SEC (2005) 839, (Brussels, 20 June 2005).

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searches’ in Eurodac increased significantly. This special search function (Article 18.2 of the Eurodac Regulation) is only meant for data protection purposes to protect the rights of the individual. However, the Commission notes that this possibility is frequently (mis-)used by some Member States for other purposes as well. 4.2. Visa information system In December 2004, the Commission presented a proposal for the establishment of a Visa Information System (VIS).33 In this VIS, the EU Member States will have to store information on every visa issued, on every decision to examine an application for a visa, each visa which is refused, annulled, or revoked, and on each extension of a visa. This implies the storage of information on millions of third country nationals, each record to be stored for five years.34 VIS will also include information on the EU and non EU nationals inviting third country nationals. The adoption of the VIS Regulation is foreseen for mid 2006. It is to be adopted by qualified majority vote and through co-decision with the European Parliament. From the start, VIS is planned as a multipurpose tool. The guidelines for the establishment of the ‘Visa Information System’, adopted at the meeting of 13 June 2002 of the JHA Council, describe as possible goals of VIS: the improvement of the functioning of the common policy in the field of visa, internal security and the fight against terrorism, the fight against fraud, the prevention of visa shopping, the improvement of the possibilities to return illegal immigrants, and finally, the improvement of the application of the Dublin Convention.35 Data will be used for the purpose of examining a visa application, the consultation between central national authorities in accordance with Article 17 (2) SC, checks at the external borders for verifying the identity of the person or authenticity of the visa, the identification and return of illegal immigrants, the determination of the responsibility for asylum applications; and the examination of an asylum application. The actual proposal of the Commission does not regulate the consequences of being registered into VIS. It does not explicitly prohibit that a Member State refuses a visa to a visa applicant based on an earlier registration of this person in VIS. The VIS proposal has been presented together with an Extended Impact Assessment on the added value of a new VIS.36 In this report, four alternatives for the exchange of data on visa have been examined with regard to their various impacts on, amongst others, the efficiency of 33 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, (Brussels, 28 December 2004). 34 Estimated numbers of data stored into VIS concern 20 million of visa applications on an annual basis, which would result in 70 million records to be stored into the system for the five-year term. 35 Council of the European Union, Document no. 9651/02, (2002). 36 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. EPEC, EPEC Final report, (December 2004).

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a common visa policy, its contribution to internal security, financial costs, and the impact on fundamental rights. The report refers to the ‘potential extremely grave consequences’ of the use of VIS for travellers and underlines the high financial costs of the establishment of such a system. According to this Impact Assessment Report, the effects of the use of VIS with biometrics for tracking terrorists or organized criminals will only be limited and dependent upon the effectiveness of other measures taken. In the light of these findings, it may surprise that the Extended Impact Assessment report finally concludes that the option of a VIS supported by the use of biometrics is the best available solution for improving the common visa policy. As has been underlined by the rapporteur of the European Parliament for this subject, Sarah Ludford, the decision making on VIS has been made difficult as the Commission proposal does not include the complete regulation of the future use or impact of VIS.37 In February 2005, the Council decided already to give law enforcement authorities access to the future VIS.38 This access is however not provided for in the proposal which has been forwarded to the European Parliament. Nor does this proposal take into account the future plans on the interoperability of VIS with SIS II and other European databases. In June 2005, the Article 29 Data Protection Working Party published a very critical opinion on the proposal of the VIS Regulation.39 The Data Protection Working Party especially expressed its concerns about the massive collection and processing of personal data with far-reaching consequences on the individual human rights, in particular the right of privacy, enshrined in Article 8 of the European Convention on Human Rights (ECHR). The Working Party raised doubts on whether the multipurpose structure of VIS, including the use of biometrics, would meet the criteria of proportionality and necessity as developed by the European Courts on the protection of the right to privacy. 4.3. The use of biometrics On the national level and on the European level, governments are developing mechanisms through which individuals can be controlled through the use of biometric data. Biometrics can be described as ‘automated methods of recognising a person based on a physiological or behavioural characteristic’. These characteristics include fingerprinting, retinal and iris scanning, hand and finger geometry, voice patterns, facial recognition, and other techniques. Governments present the inclusion of 37 See the two Working Documents of 15 March 2005 of MEP S. Ludford for the Committee on Civil Liberties, Justice, and Home Affairs of the European Parliament. 38 Council of the European Union, Conclusions meeting Council Competitiveness of 7 March 2005, Document no. 6811/05, (2005). 39 The Article 29 Working Party is an independent European advisory body on data protection. Opinion 1022/05/EN, WP 110, (23 June 2005), retrieved from: www.europa.eu.int/comm/justice_home/fsj/privacy/index_en.htm.

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biometric data in databases and in travel documents, as the ultimate tool for different purposes: to prevent illegal immigration or visa shopping, to combat terrorism, and to facilitate the return of rejected asylum seekers. Until now, Eurodac is the largest data base of biometric data, namely fingerprints. In the future, biometrical data will be stored and used on a much larger scale. On the EU level, different decisions have been adopted with regard to the use of biometrics. On 13 December 2004, the Council adopted the Regulation 2252/2004 on biometric features in EU passports.40 Despite the negative advice on this matter of the European Parliament, this Regulation allows for the central storage of biometric data. Further, the EU Member States reached political agreement on the draft Regulation amending the uniform visa and residence permits to include biometric data. Due to technical reasons, this proposal still awaits final adoption.41 The proposals on SIS II and VIS provide as well for the inclusion of biometrics (fingerprints) in these databases. There are discussions about the reliability of identification by using biometrics. The so- called ‘False Rejection Rate’ of the various biometric identifiers is still estimated between 0.5 and 1 %. This means, with an expected number of 20 million visa applicants as of 2007 in the EU, this could lead to 100.000 to 200.000 persons who will wrongly be rejected a visa or shall have troubles getting access to the EU.42 In its opinion on the draft VIS Regulation, the Article 29 Working Party, especially focussed on the reliability of a future VIS including the use of biometrics. The advisory body found that both in terms of accesses and in terms of false-positive and/or false-negative findings, such a system might have potentially harmful consequences for the person concerned.43According to the Working Party, the draft Regulation should provide for adequate guarantees, to ensure that persons rejected during border checks, will be informed both of the reasons of rejection and of the means by which they can assert their own point of view before any decision is taken. 5. Protecting Individuals: The Importance of Political, Technical, and Legal Choices 5.1. Choices at the political level: transparency and assessment of added value Until now, the EU policy on the use and amendments of EU databases is characterized by a lack of transparency, enhanced by the piece meal approach by which the decisions are actually taken. In the last two-three years, the EU decision makers 40 OJ L 385, (29 December 2004). 41 European Commission, Draft Regulation amending the uniform visa and residence permits to include biometric data, COM (2003) 558, (Brussels, 29 September 2003). 42 Compare information in the Extended Value Assessment on VIS, SEC (2004) 1628, and in the Opinion of the European Data Protection Supervisor on the proposal for a regulation on VIS, 23 March 2005, p 8-9. 43 Opinion 1022/05/EN, WP 110, 23 June 2005, p. 13.

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gradually extended the use, the functions, and the content of existing and planned databases. It is very difficult on the basis of the different decisions which have been adopted, to get an overall picture of the EU architecture for the future collection and sharing of personal information. This problem has been addressed as well by members of the European Parliament.44 A positive development is the principle which has been launched in the Hague Programme of November 2004 on the ‘assessment of added value of new EU databases’. According to this principle the added value should be established before the setting up of new large scale EU systems. A first example of the implementation of this principle has been the simultaneous presentation of new the draft Regulation on VIS with the report on the Extended Impact Assessment. Only: it remains very difficult to assess the objectivity of these ‘added value reports’. For example, with regard to VIS it is questionable whether this Extended Impact Assessment report, which described only few alternatives, offers a sufficient basis for a balanced, wellinformed decision making. In view of the development of the second generation SIS or SIS II, it is surprising that the present use of SIS has never been evaluated at all. However, looking at the use of SIS as described above, it is important to keep in mind the relative small success of storing information on a large group of persons, namely third country nationals. Policy makers should also be more explicit in balancing the expected positive effects of biometrics against the estimated rate of false recognition and the possibility of misuse of this information. The obligation of recurring evaluations will remain very important with regard to the proposed EU information systems from the moment they are operational. The Eurodac Regulation, but also the new proposals on VIS and SIS II include such an obligation for the Commission to report on the evaluation of these systems. But here again, everything depends on the objectivity in which these evaluations will take place. In the first annual report on Eurodac of 2003, the Commission seemed more eager to underline the success of Eurodac, than to point out the shortcomings of this system. 5.2. Interconnection of different systems: improving effectiveness? As we have seen above, the actual EU databases have been set up and designed for limited and specific goals. One could wonder whether their efficiency does not depend to a large extent on these limitations and whether the proposals for interconnecting these systems would not have negative effects for the reliability and the use of these systems. Policy makers should be more explicit about the fact that their plans for ‘interoperability’ of different systems, the extension of access

44 See for example, Baroness Ludford, rapporteur on the VIS proposal, who in her working document of 15 March 2005, considers that ‘function creep’ or the step-by-step approach by which data stored for one purpose eventually is used for other purposes, could mean that VIS evolves into a ‘general intelligence tool’.

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to different authorities, and the use of biometrics could alter the actual scope and content of EU databases. 5.2.1. Differences between the functioning and the purposes of EU systems In the first place, it is important to be aware of the different functions and purposes of the systems described above. The SIS is a multipurpose system, to be used by different authorities for different purposes. However, until now the access to SIS is strictly connected to the specific category for which the data are stored into SIS. This means that authorities may only have access to those data which are necessary for the performance of their specific tasks. SIS is also to be considered as a ‘hit-no hit’ database. SIS can initially only be used by authorities to check whether or not a specific person has been registered into SIS. If so, this ‘hit’ allows for specific measures which are defined in the provisions on each category of data in the Schengen Convention (SC). Thus, data on third country nationals to be refused entry on the basis of Article 96 SC may in principle not be used for criminal investigation purposes and SIS cannot be checked by any authority for any purpose. With regard to SIS II, the EU Council decided that this should remain a hit-no hit system. It is clear that the choice for a flexible system which allows for more authorities to have access to SIS, will change the function of SIS II de facto in an investigative tool.45 Eurodac can also be considered as a hit-no hit data base, however with the special feature that national authorities do not have direct access to the information stored into Eurodac. Contrary to SIS, Eurodac has only one purpose, namely the establishment of which country is responsible for an asylum application. According to the current Eurodac Regulation, the information stored into Eurodac is not accessible for any other authority and may not be used for any other purposes. Compared to Eurodac and SIS, VIS will be much more an investigative tool, to be used for different goals and by authorities with very different tasks. The plans for VIS imply a multipurpose system and possible decisions to be based on a VIS registration include: the refusal of entry or a visa; expulsion to the country of origin if the person has overstayed his or her visa, and the return of illegal immigrants. As we have seen, the EU Council decided to give law enforcement agencies access to VIS as well and there are plans to link VIS with other databases. 5.2.2. Differences in the selection of persons to be recorded In the second place, there are important differences with regard to the criteria on the persons to be stored into the databases described above. The registration of an individual into SIS requires a specific, individual reason why this person is searched for. This includes previous convictions, the presence of serious reasons to suspect somebody of committing or planning serious crimes, or judicial decisions. Although one can be very critical about the vague criteria provided for in the Schengen 45 Council of the European Union, Opinion of the Joint Supervisory Authority of May 2004 on SIS II, Document no. 11055/04, (5 July 2004). See the reaction of Dutch Presidency, Document no. 11055, (5 July 2004).

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Convention and their application by the individual Schengen states, principally the registration of third country nationals into SIS for the purpose of refusal of entry requires an individual, balanced decision. Eurodac includes data on the basis of much more general criteria. Every person applying for asylum in one of the EU Member States, or crossing illegally external borders or found illegally on the territory of a EU Member State, 14 years and older and a non EU citizen, should be registered into Eurodac. Comparable to Eurodac, VIS is also based on more general criteria: every non EU-citizen applying for a visa, irrespective of his or her personal behaviour will be stored into VIS. The only criteria these visa applicants will have in common are that they are nationals from countries which are on the EU ‘visa list’ and that they seek access to one of the EU Member States. The proposals as described above include the possibility that data on EU nationals will be stored into a centralized database as well. As we have seen above, VIS is to contain data on every person (EU or non EU citizen) issuing an invitation for the visa applicant or liable for the costs for this applicant. And with regard to the decisions to include biometrics in passports and travel documents, it has been proposed that everyone applying for a EU travel document, passport, or residence permit, which includes EU and non EU citizens, will be registered into a EU database as well. 5.3. Technical choices: ‘privacy enhanced technology’ Until now, the important consequences of the choice for architecture of new databases and the use of biometrics for the rights and liberties of individuals receive only little attention. Decisions on the architecture of databases and the use of biometrics are to a large extent made during negotiations between politicians and IT companies. These important issues should however be dealt with during public debates, both at the national and European level. The fact that there are still strong doubts on the reliability of biometric identifiers, has not been taken fully into account during the decision making process. For example, in the Netherlands, a report on the use of biometrics in passports, issued in September 2005, raised doubts about the reliability and possibility of recording fingerprints of individuals younger that six years and older than sixty years.46 Technical choices will also have consequences for the question whether somebody knows he or she is being checked. For example: the use of contactless chip in visa or passport will make it possible to check persons without their knowledge. Are the devices on visa or passport based on a read-only mechanism or can they be altered by the controlling authorities? In its opinion on the draft Regulation on VIS, the European Data Protection Supervisor (EDPS) referred to the impact of the choice to embed a microchip or not in the visa, as this has consequences

46 Dutch Ministry of Interiors (commissioned by), 2b or not 2b, Evaluatierapport Biometrieproef, (2005), http://www.minbzk.nl/persoonsgegevens_en/reisdocumenten/ publicaties/evaluatierapport.

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for the way the central VIS database is to be used.47 The EDPS proposed with regard to visa checks at the borders to amend the VIS proposal of the Commission as such to give competent authorities only access to the microchip on the issued visa, and not to the central database of VIS, as this would be disproportionate. Technically, it is also possible to include in passports or visa a device which makes it possible to follow the position of travellers by satellite. These are important matters which should be taken fully into account in the decision making process. Policy makers should make transparent and explicit choices on whether they want to allow or prohibit this kind of use. And when they have chosen for the latter option, they should exclude every kind of technology which would make this prohibited use possible. 5.4. Legal protection of individuals: clear criteria and extended rights The legal framework of the ‘EU data surveillance architecture’ will be highly important, not only for the protection of individual rights, but also for the possibility of independent authorities to scrutinize the use of these systems. The storage and use of personal information is bound by rules of data protection. General rules are laid down in the EC Data Protection Directive of 24 October 1995.48 More specific data protection provisions are incorporated in the regulations on the different instruments, including the Schengen Convention, the Eurodac Regulation, and the draft VIS Regulation. Currently, the powers and means of independent data protection authorities on the basis of these rules are limited. Future legislation should at least include the possibility to impose heavy financial fines on governments which act in breach of the applicable rules and supervisory authorities should be equipped with sufficient means and staff to fulfil their tasks. Informed decision making will become more and more important for the protection of individual rights. New instruments should include clear rules on the duty to motivate decisions which are based on information stored in European databases. A positive development is the proposed amendment of the Common Manual on Borders including a standard form for refusals of entry at the border.49 This standard form includes the obligation to indicate the reasons of refusal and references to national legislation relating to the right of appeal. Important as well is the draft Regulation on the Community Code on the movement of persons across

47 European Data Protection Supervisor, Opinion on the proposal for a regulation on VIS, (23 March 2005), p. 16. 48 European Parliament and Council of the European Union, Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, OJ L 1995, (23 November 1995). 49 Council of the European Union, 2004/574/CE: Council Decision of 29 April 2004 amending the Common Manual, OJ 2004, L261, (3 August 2004).

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borders, which includes the duty for authorities to, when refusing someone entrance, they should give a substantiated decision stating the procedures for appeal.50 Of course, the value of these latter rules depends on whether there are legal remedies available at all at the national level. Until now, EU rules on border control and visa applications do not provide for any explicit right to legal remedies.51 In the light of the actual developments, it is an absolute prerequisite that individuals encountering negative decisions based on ‘data surveillance’ have a right to access to courts, which right should not be dependent of their nationality, legal status, or actual location. Persons being refused entry at the borders, or whose application for a visa has been rejected based on information stored into EU databases, should have effective remedies against these decisions, whether they are in the EU territory or not. In this light it is worrying that both the VIS proposal and the new proposal on SIS II include a territorial limitation of the right to legal remedies. Contrary to the actual wordings of Article 111 of the Schengen Convention, based on the draft Regulation on SIS II, this right would be only available to persons who find themselves in the territory of Member States.52 Finally, much is unclear about the actual scope of the competences of national courts to assess the legitimacy of national decisions taken by authorities of other states. Traditional interpretation of sovereignty and the lack of harmonization of underlying rules seem to limit a broad competence for national courts. However, databases such as SIS are based on the mutual recognition of national decisions on ‘inadmissible aliens’ and of national criteria on public order and security. Harmonization of these criteria should strengthen the possibility of national courts to assess the legitimacy of these records. The new proposal of the Commission on SIS II includes a careful attempt for such a harmonized approach.53

50 European Commission, Proposal for a Council Regulation establishing a Community Code on the rules governing the movement of persons across borders, COM (2004) 391, (Brussels, 26 May 2004). 51 See E. Brouwer, ‘Effective remedies for third country nationals in EU law: justice accessible to all?’, EJML 7, (2005): 219-236. 52 See Article 13 of the Regulation on SIS II, COM (2005) 236, and Article 33 of the draft VIS Regulation, COM (2004) 835. A full reference to the Regulation on SIS II can be found in note 29. For the draft Regulation on VIS please refer to note 33. 53 Compare the texts of Article 96 of the Schengen Convention with the text of Article 15 of the SIS II proposal.

Chapter 9

Integrated Border Management at the EU Level Peter Hobbing

1. External Borders: The ‘Skin’ of the Union External borders and their crucial role for the smooth working of the Single Market, the Area of Freedom, Justice and Security and other basic objectives of the Union have long been recognized. ‘Union’ and (common) ‘border’ have formed an inseparable pair of notions since the early days of the common market and the EEC customs union in the 1960s. Of course, one has always discussed the degree to which borders were operated well but their raison d’être as such was hardly ever challenged, almost as little as the importance of skin to the well-being of the human body. It took a little longer, however, before the act of handling such borders (jointly or not) had moved on as a separate issue into the spotlight of public attention. This occurred when people became aware of the daily realities of ‘Schengenland’, which meant that ‘their own’ borders with the neighbours had disappeared, and that it was not ‘their’ police any more who were in charge of the new common borderline, far away from home. Discussions sprang up, inside the territory, as to whether ‘these foreigners on the border’ would do a good job in keeping the border tight, or create loopholes that allowed organized crime and illicit migration to penetrate all the way through the Union. Right on the border, discussions went in the opposite direction: ‘Why is it just us who bear all the responsibility and the financial burden?’ Weak links in the border chain, the need for burden-sharing and solidarity soon became the keywords and phrases of an EU-wide debate. It was the merit of the Laeken European Council of December 2001 to have sensed these tensions and initiated a discussion on a new topic called ‘integrated border management’, which would take into account the interests of those both on the border and far away from it. Although the identification of the problem did not lead to immediate solutions, the debate was well received and it has stayed in the headlines ever since. It is therefore no surprise that The Hague Programme touches this popular subject; if there was anything surprising about the programme, it would be its assumption that there was something like ‘the integrated management system for external borders’

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(European Council, 2004, item 1.7.),1 which existed as a pre-defined concept and has been just waiting for instalment. In reality, integrated border management2 is a term with a rather short history and a wide spectrum of meanings – certainly not a good starting point for a precise programme (Box 1). There is not one ‘run-of-the-mill’ approach for all situations; solutions must be tailor-made in accordance within the economic and political context. Table 1: Brief history of the term ‘integrated border management’ IBM, now definitively en vogue, seemed entirely unknown until the mid1990s. Currently it provides the keyword for innumerable reform projects around the world and appears on government websites from Azerbaijan to Zambia.* The various contents being as heterogeneous as the regions involved, there is at least the common understanding that IBM relates to ‘lean government’ approaches and that border procedures should be governed by modern economic strategies rather than slow bureaucratic structures. The concept needed for the EU borders is naturally different from that appropriate for the North American NAFTA countries or even from that proposed by the EU for new neighbours in the east. *See for example Zambia (http://www.sars.gov.za/siyakha/about_transformation.htm). The purpose of this paper is to provide greater clarity with regard to determining 1) what one should understand by ‘the’ system of IBM tailor-made for the EU, and 2) to what extent The Hague programme appears helpful in implementing this objective. 2. A Border Concept appropriate to the EU A tour d’horizon of IBM concepts applied elsewhere shows to what extent these are adapted to the specific needs of their situation, before looking at the EU, whose specific territorial situation with a fragmented borderline and patchwork structure of legal systems requires a particularly complex solution. 2.1. IBM concepts outside the EU In contrast with the EU, IBM elsewhere has mainly to do with greater efficiency in border-related cooperation at the nation-state level. This is particularly true for the former communist countries in Eastern Europe with a tradition of hermetically tight borders that served for defence purposes, but had no major role to fulfil with 1 This is contrary to the EU Constitutional Treaty of December 2004 (OJ C 310 of 16.12.2004), whose Art. III-265 mentions the introduction of an integrated system. 2 Hereafter referred to as ‘IBM’ for the sake of convenience.

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regard to the movement of persons and goods. Within the same region, one also finds the opposite challenge of merely administrative demarcation lines between former Soviet or Yugoslavian republics, which now have to be upgraded to international borders. In other parts of the world such as the North American continent, IBM is mainly seen as a strategy to pool the resources of the various government branches in a border-related assignment, whereby this increasingly implies the involvement of private operators and citizens (the ‘border community’). Cross-border ventures between border agencies of two countries are also undertaken. 2.1.1. EU enlargement and new neighbours For the newly independent states in Eastern Europe and the Balkans, there has been a direct link between border management and the setting-up of a market-oriented economy combined with democratic institution-building. IBM as it has emerged for them as a joint concept from the PHARE, TACIS and CARDS assistance programmes came to comprise the following basic elements: • •

• •

comprehensive tackling of the interrelated problems of trade, transport, insecurity, criminal smuggling and, where necessary, the development problems of the border regions themselves; strict requirements for the numerous authorities and agencies (especially border control and customs, but also transport, health, veterinary services etc.) to cooperate on common problems, rather than working separately and often at cross purposes; and strong encouragement for neighbouring countries to cooperate in managing shared borders.3 Border controls should be ‘Schengen-compatible’ in the sense that they conform to the Schengen Catalogue on external borders control.4

The four-fold EU concept of IBM – in the sense of (i) a comprehensive approach to border problems across (ii) administrative and (iii) national dividing lines under the management of (iv) dedicated professional skills – today serves as an uncontested international standard. It is widely referred to by international organizations such as NATO,5 the OSCE,6 the Centre for the Democratic Control of Armed Forces 3 Commission of the European Communities, CARDS Assistance Programme to the Western Balkans, Regional Strategy Paper 2002-2006, (Brussels, 2002). 4 Council of the European Union (2002), EU Schengen Catalogue, External borders control, Removal and readmission: Recommendations and best practices, (Brussels, February 2002), retrieved from http://ue.eu.int/uedocs/cmsUpload/catalogue20EN.pdf. 5 NATO, Common Platform of the Ohrid Regional Conference on Border Security and Management, (May 2003), retrieved www.nato.int/docu/conf/2003/030522_ohrid/c030522a. htm. 6 OSCE, Conflict Prevention Centre, Border Security and Management, (2003), retrieved from http://www.osce.org/cpc/13276.html.

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(DCAF)7 and in the Stability Pact,8 and the not only in the Balkans but also for use in other regions (the Caucasus and Central Asia).9 The CARDS formula, although a strikingly concise and reliable guideline in many respects, is missing one important feature for success, which is cooperation with the private sector, especially in the transport sector. 2.1.2. North America North American borders face completely different problems, such as demarcation lines established for centuries and not likely to change their character (or be abandoned) despite a dramatic increase in cross-border movements of both persons and goods during the past 40 years. The primary objective of North American IBM initiatives has been to reduce the ‘long waits to cross the border’ without sacrificing the ‘correct balance between facilitation and control’.10 Integrated border and marine enforcement teams (IBETs) have been created to implement a harmonized approach to Canadian and US efforts in targeting cross-border criminal activity;11 grassroots border communities consisting of business associations and citizens groups have become involved in contributing to the streamlining of border procedures in order to reduce the ‘long waits’. A similar ‘smart border’ partnership12 is intended between the US and Mexico, however, with more emphasis on security than facilitation aspects.

7 DCAF (Geneva Centre for the Democratic Control of Armed Forces), Conference Paper on Integrated Border Management, (Tirana, January 2004), retrieved from http:// pforum.isn.ethz.ch/docs/DE5ECBC7-5CA-4CEA-AC89A8BC6AF528F.pdf. It is in particular the Geneva-based DCAF that dedicates – as part of the security-sector reform in the Western Balkans – considerable resources to the restructuring of border services in the countries concerned. The ‘EU requirements’ are explicitly referred to as a benchmark for all these reforms. 8 Stability Pact, Report of the EU panel, OHRID regional Conference on Border Security and Management, (2003), from: http://www.stabilitypact.org/specials/030522-ohrid/ ohrideupanel.doc. 9 NATO, Report on the Partnership Action Plan against terrorism, (NATO Istanbul Summit, June 2004), retrieved from http://w-ww.nato.int/docu/basictxt/b040623be.htm. 10 D. W. Meyers, and D.G. Papademetriou, ‘Walking a Fine Line: Issues in Border Management’, in Canadian Journal of Policy Research, Vol. 1, No. 1, (2000): 130-32, retrieved from www.isuma.net/v01n01/waller/waller_e.shtml. 11 IBETs include core agencies such as the Royal Canadian Mounted Police, Canada Customs and Revenue Agency, Citizenship and Immigration Canada, the US Customs Service, the US Border Patrol and the US Coast Guard (the latter now being in the US Homeland Security Department). Each of the IBETs along the border may include other core agencies such as the Ontario Provincial Police. See Customs Canada, Fact sheet ‘Canada-United States Integrated Border Enforcement Teams’ (retrieved from http://www.cbsa-asfc.gc.ca/newsroom /factsheets/2002/sep/teams-e.pdf). 12 Action Plan announced by President George W. Bush in March 2002 (retrieved from http://www.whitehouse.gov/infocus/usmxborder/22points.html).

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In terms of IBM, the North American approach is marked by a broad involvement of all border-related government agencies as well as representatives of the civil society. This is combined, on the other side, with a rather traditional nation-state concept allowing for neither a general abolition of controls at borders with befriended nations nor the granting of any substantive cross-border powers to neighbouring enforcement services – thus representing an essential difference to the EU-Schengen situation. Despite excellent contacts in terms of intelligence-sharing, the NAFTA countries grant each other no rights for cross-border enforcement action: between Canada and the US, agreement exists that, during the hot pursuit of criminals, services would inform each other through a pre-established notification system, with the receiving side picking up the pursuit at the earliest possible opportunity. But as one US Homeland Security official puts it: ‘We never cross ourselves into Canada [for enforcement activities] and never ever into Mexico’. In terms of a future vision of border management, more hope seems to be based on technological devices rather than on trust between the neighbours: the smart border of the future will rely heavily on pre-arrival screening of passengers and goods as well as advanced technology to track the movement of cargo and the entry and exit of individuals. Whereas in many EU member states, the border control staff has been drastically cut down, sometimes close to zero(!),13 there is a continuous upward trend in the US: after the sharp staff increases following the 9/11 events,14 the Homeland Security Department continues to tackle border problems by recruiting large numbers of additional border inspectors. ‘In 2006, [the] Department of Homeland Security would have 8,500 more employees than it had in 2004. Many of those jobs would go for more Customs and Border Protection officers, Border Patrol agents and TSA screeners.’15 2.1.3. The customs approach EU customs – as a trade and economy-oriented administration – has always been two steps ahead of police and border guards in streamlining European borders and

13 Owing to the Schengen Agreements, Belgium, Denmark, Luxembourg, the Netherlands, Portugal, Spain and Sweden have no external land border to control any more; France, Germany, Italy and others are to follow in 2007, leaving the control task to the eastern members Finland, Poland and Hungary. For details see Box 2 below. 14 This was reflected in budget increases of $2.2 billion for border security, $619 million for customs (White House Border Security Fact Sheet www.whitehouse.gov/news/ releases/2002/01/20020125.html). During the period 1993-2000 the size of the US Border Patrol had already more than doubled, see Andreas, P., ‘US-Mexico Border Control in a Changing Economic and Security Context’, US-Mexico Bulletin, 1 (January 2005). 15 S. Barr, ‘In Bush Budget, Homeland Security Issues Drive Employment Growth’, Washington Post, (8 February 2005).

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the procedures related to their crossing,16 with many of the measures being labelled as ‘service to the border-client’. It is no surprise, that the term ‘IBM’, when used in a customs context, is primarily understood as a reference to trade facilitation projects, the most prominent of which are the WCO/UN-ECE Single Window Approach (a single-border declaration for all administrative purposes),17 the Time Release Study (comparative testing of the speed performance of customs and their efficiency in clearing goods)18 and the WCO Data Model (management of cross-border trade by means of an interconnected electronic environment).19 Beyond this, there are other approaches – still business based – but in the clear perspective of rendering the fight against fraud more effective, in particular the trafficking of drugs and other illicit commodities: the WCO Action/ Defis, recently renamed the WCO Business Partnership,20 incorporates a number of MoU initiatives formerly established to take advantage of field expertise in detecting irregular practices employed by competitors. Only after the 9/11 events did customs come to associate itself with the IBM concept predominating in the police world, that is to define it primarily as interagency cooperation at the national and/or international level.21 At the EU level, there is specifically the attempt ‘to find solutions that can marry security concerns and trade facilitation’.22 The 2003 Communication directly addresses ‘the role of customs in the integrated management of external borders’23, expressly underlining its complementary character in relation to the police/Schengen IBM Communication of the previous year. Customs IBM is mainly based on the following features: •

uniform protection of the external border – member states must ensure that

16 P. Hobbing, Management of External EU Borders: Enlargement and the European Guard Issue, DCAF Conference Managing International and Inter-Agency Cooperation at the Border in Geneva 13-15 March 2003, retrieved from http://www.dcaf.ch/news/ Border%20Mgt_031303/Hobbing.pdf . 17 United Nations, UN – Economic Commission for Europe, The Single Window Concept, ECE/TRADE/324 of April 2003. 18 WCO, Guide to measure the time required for the release of goods, (2002), retrieved from http://www.wcoomd.org/ie/En/Topics_Issues/FacilitationCustomsProcedures/TRS%20%20E%20-%20final%20version.PDF. 19 For further information, see www.wcoomd.org/ie/En/Topics_Issues/Facilitation CustomsProcedures/DataModelBackground.html. 20 This is a ‘business-led, customs-supported alliance created to combat narcotic smuggling via commercial trade’. WCO, World Customs Organization, WCO Business Partnership, formerly Action/Defis, (1999), retrieved from: www.wcoomd.org/ie/En/Topics_ Issues/WCOBusinessPartnership/1999/wco-eng2.htm. 21 WCO, Resolution of the Customs Co-operation Council on global security and facilitation measures concerning the international trade supply chain, (June 2004). 22 Commission of the European Communities, Communication: A simple and paperless environment for Customs and Trade, COM(2003) 452, (Brussels 24 July 2003), p. 1. 23 Ibid., p. 35.

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the principal security risks are addressed in a timely and harmonized manner at each point on the external (customs) border; border responsibility is to be shared by all agencies involved, with customs having the lead responsibility in ‘all matters relating to the control of legally and illegally traded goods’; the set-up of a multi-disciplinary authority responsible for safety at external borders – this is originally referred to the Common External Border Practitioners Unit and is now to be understood as a reference to the new European Agency for the Management of Operational Cooperation at the External Borders (FRONTEX).

Despite the seamless link with the Schengen border approach; it should be recalled that security is just one of the two customs legs and that the distinct trade-facilitation approach remains equally valid. Furthermore customs does not have to worry about the diversity in legal matters, which plays such an important role in the Schengen context. There is established European customs legislation in contrast to the 25 different legal orders existing for the administration of Schengen. 2.2. The Complex elements of an EU approach After the rather concise description of national IBM systems elsewhere in the world or within the closed circuit of customs administrations, one may be surprised as to how complex a system is necessary to run the complicated EU external border. Not that the EU land border is any greater than that, for example, of the US: on the contrary, the border is currently much shorter (7,169 km vs. 12,034 km). It will catch up with the US only after all the current candidates including Bulgaria, Romania and Turkey have been accepted into Schengenland.24 Finally, the geographical profile is certainly not more demanding than that of the Western Balkan countries. Most of the complication is caused by the unfinished status of the EU as neither a nation state nor a full-size federation. The border thus resembles a scattered line surrounding a colourful patchwork of separate territories. The so-called ‘EU border’ is subdivided into a number of loosely connected national segments, each of them attended to by separate services. As a consequence, EU-specific IBM needs to take care – beyond the normal challenges – of the reconciliation between the many bits and pieces found on the chequered Union map. Unlike the US, there is nothing such as a coherent EU territory characterized by a single legal system and protected by a single border service performing its duty from coast to coast.

24 A comparison of border areas based on border figures presented by the CIA World Factbook 2005 reveals the following: US, 12,034 km; EU-Schengen (currently) 7,169 km; EUSchengen (after inclusion of Turkey), 12,068 km; EU-Schengen, post-2007 (after inclusion of the 2004 newcomers) 9,080 km; EU-Schengen post-2010 (after inclusion of Bulgaria, Romania) 10,306; (retrieved from http://www.cia.gov/cia/publications/factbook/index.html).

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2.2.1. A chequered legal landscape... At this stage, the EU consists of 25 separate legal systems, 13 of which are found (together with those of Norway and Iceland) within the territory of Schengenland. Border management is performed by 15 distinct national services, each exclusively responsible for one special section of it. But, following the gradual abolition of internal border controls, the respective shares of the border have become increasingly unbalanced (Box 2). EU border management is not confined to the simple checking of passports and the prevention of illicit movements across the green border. The requirements are more complex. As border staff are bound to carry out their assignments in taking account of the ‘interests of all parties’ (Art. 6, Schengen, 1990), and in particular, refuse entry to foreigners ‘representing a threat to public policy, national security or international relations of any’ Schengen member, they must possess a considerable knowledge of the political/legal situation in other countries as well as the appropriate language skills. Table 2: The balance of border management responsibilities In the beginning, things were rather balanced and just: each state would bear the burden of its border. With the opening of internal borders, more and more countries were relieved from control tasks on the land borders and the remaining ones bore an increasingly unequal share. In the early Schengen days of 1995, the heavy weights France and Germany still managed about 98%, by 2003 their share had shrunk to 42% and with the gradual accession of the Eastern neighbours, it was further reduced to 20% (and with the likely accession of Switzerland this will decrease to 0!). Together with Norway, Finland and Greece, the main burden is shifting to the shoulders of the newcomers such as the Baltic countries, Poland, Slovakia, Hungary and Slovenia, and later also to Bulgaria and Hungary25 (see Hobbing, 2003, p. 6). Border management implies considerable financial spending, especially if done on behalf of the entire Schengen group. For example, Poland assumes the need to recruit 4,000 additional border staff in order cope with the new challenge. There is furthermore the need to upgrade border-crossing installations, surveillance equipment on the green border, linguistic and other special training for control staff, etc. Some assistance is provided by the so-called ‘Schengen facility’, a head-start funding programme providing the newcomers with approximately €963 million (€280 million thereof for Poland) over the period 2004-06 to improve infrastructures

25 P. Hobbing, Management of External EU Borders: Enlargement and the European Guard Issue.

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at frontiers, staff training, etc.26 But expenses are a continuing matter that require solutions beyond 2006: for this reason, it is a longstanding objective pursued by the Commission,27 that the external border has to be managed in explicit solidarity among the member states. Nevertheless, burden-sharing represents an extremely delicate issue given that solidarity is understood by the ‘old’ member states (France, Germany, Italy, Spain and the UK) as a two-way concept, foreseeing financial burden-sharing in return for Union involvement in the operational management of the border, in particular in terms of the possible creation of a European border police.28 As the German Minister of the Interior Otto Schily put it, the member states concerned should pay for their own border expenses, if they reject any operational involvement by the others.29 The Eastern members in turn vehemently oppose the operational involvement and all the more the ‘more radical ideas of pan-European border police forces’.30 Definitely not a promising prospect for the new European Border Agency that took office just a few weeks ago! 2.2.2. …and the adverse effects of key decisions from the past In light of these difficulties, it is an entirely legitimate question to ask whether this complicated situation could not have been avoided right from the beginning, by ‘tidying up’ the European landscape and creating a single European legal system combined with a single public service. From a utilitarian point of view, such a scenario might have come in quite handy; it would, however, not have corresponded with the historic visions of the time. The founding fathers of the EU did not envisage European integration by the merging of legal systems – not even their harmonization or approximation was part of the plan. European unification was intended to occur by economic factors that were the 26 Concerning the individual funding amounts for the Schengen facility, see the discussion in section 3.2.2 below. 27 Commission of the European Communities, Communication: A simple and paperless environment for Customs and Trade, paragraph 46. 28 The G5 Declaration of 12 May 2005 states, ‘5. The European Border Agency must above all be an operational tool that enables in particular the initiation of intensified joint operations at the EU’s external borders. Risk analysis must drive the Agency’s activities to provide a clear basis for the implementation and evaluation of the joint operations. We undertake to assign to the Agency on detached duty suitable personnel to support or assist its proper functioning. We are studying the idea of a ‘European Border Intervention Police Force’ which would allow deployment, in times of crisis, of specialized national pre-identified resources in our countries so as to intervene on the European external border.’ (Retrieved from http://www.ambafrance-us.org/news/statmnts/2005/europe_shengen051205.asp). 29 L. Kubosova, ‘Poland to host EU borders agency’, EU Observer, (15 April 2005). 30 Slovak Interior Minister Vladimir Palko on 14 April 2005, EU Observer of 15 April 2005; see also the remarks by Polish Interior Minister Ryszard Kalish on 20 May 2005: ‘Poland is opposed to the creation of a European border police force’, AFP, 24 May 2005, retrieved from http://www.eubusiness.com/afp/050514142032.6dz759oc.

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pooling of coal and steel industries of the former enemies in order to prevent future wars.31 Justice and home affairs remained a stepchild of European integration for other reasons as well: public opinion would easily accept the transfer of sovereignty rights in the economic field, but not so in judicial and law enforcement matters, which are widely considered as areas close to the heart of a nation. Every state has insisted on keeping its own criminal law system while most citizens felt (and still feel) some unease towards the idea of being tried by a judge from other than their own nation. Also, there was no strong lobbying group that would have pushed for the abolition of law enforcement borders as business and trade had done since the 1950s regarding the free movement of goods and services. When the opening of internal borders became definitive in the 1980s with the granting of the ‘four freedoms’, including the free movement of persons, police and criminal justice agencies – entirely surprised by the events – feverishly started to think about ‘compensatory measures’ that could confine the risk of criminals abusing open borders. Up to that moment, European police and judicial services had been operating far apart from each other, almost as distantly as with countries overseas; possible assistance requests were handled through complicated and highly inefficient diplomatic channels. Despite considerable progress made during the 1990s with justice and home affairs becoming the third pillar of the EU, prospects have remained limited; a genuine alignment of systems was never envisaged. The Tampere European Council of October 1999 clearly downsized all expectations: instead of any full harmonization, which had proved futile even on certain secondary battlefields of economic legislation,32 there could just be mutual recognition of diverging criminal justice systems.33 To a still lesser degree, few prospects would materialize for any sort of European public service at the operational level: even in traditional first pillar areas such as customs, it was never seriously considered to enforce Community legislation by means of a European customs guard. Besides practical considerations, there is the subsidiarity argument of Art. 5 and 10 of the Treaty establishing the European

31 Schuman Declaration of 9 May 1950, retrieved from www.historiasiglo20.org/europe/ anteceden2.htm. 32 Even former Commission President and ‘father of the Single Market’, Jacques Delors had recognized that it was illusionary ‘to wish to harmonize all’ and member states should rather find means to mutually recognize comparable national procedures. The Cardiff European Council of 15 and 16 June 1998 took up this concept proposing to extend it to the judicial field. See de Kerchove (2004). 33 European Council, Presidency Conclusions of the Tampere European Council, 15-16 October 1999, SN 200/99, (1999).

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Community (TEC), which leaves it in principle to the member states to ensure the implementation of Community policies.34 3. Integrated Border Management ‘EU-Style’: Current Tools and their Deficiencies IBM rules cannot easily be located within just one framework; they are spread across a number of legal and administrative instruments. They represent a multilayered compilation of provisions, with only the basic ones found in formal legal texts such as the Treaty on the European Community or the Schengen instruments of 1985-90, while much of the rest has been adopted through informal arrangements, for example the Common Manual on external borders adopted by the Schengen Executive Committee35 and the Catalogue of Best Practices drawn up by the Working Party on Schengen Evaluation.36 Further elements that make the IBM mechanism work practically are found in bilateral/multilateral arrangements among individual member states or between them and third countries. This situation is rather characteristic of the unsecured terrain on which the European Area of Freedom, Security and Justice had to be built. Owing to the reticence of the political level to endow justice and home affairs with formal legal tools, practitioners took refuge in ‘practical’ solutions in order to cope with the dayto-day real world problems they were faced with after the abolition of the internal borders. A good part of the scepticism of civil liberties groups (Peers, 2005) is founded on the democratic deficit of an important share of the Schengen acquis. Another dimension of the IBM mechanism should be noted: not all measures from the Schengen tool set are directly border-related – some of them concern the internal territory but are still crucial to enhancing border efficiency.37 Both types were already contained in the original instruments of 1985-90 but have developed decisively since.

34 S.A. Pappas, ‘Towards a European Public Service’, EIPA Working Document, (Maastricht, 1992), retrieved from http://www.eipa.nl/Eipascope/92/3/2.htm. 35 Council of the European Union, Common Manual, OJ C 313, (16 December 2002), p. 97. 36 The text is expressly labelled as ‘explanatory and having no legally binding status’; see Catalogue of Best Practices on External Borders Control, Removal and Readmission: Recommendations and Best Practices of February 2002, retrieved from http://ue.eu.int/ uedocs/cmsUpload/catalogue20EN.pdf. 37 The Schengen catalogue even mentions ‘four tiers’ of the border model: activities in third countries, international border cooperation, measures at external borders – border management (border checks and border surveillance), ibid., part 1, Introduction.

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3.1. The original set of Schengen instruments from 1985-90 During the early Schengen phase of the 1990s, the specific border-related mechanisms had to be based on a very small number of instructions from the original instruments themselves (so-called ‘common uniform principles’). Art. 6 of the 1990 Convention38 is widely considered the centre piece of the Schengen system.39 Border checks must be a) systematic (‘All persons shall undergo at least one such check’); b) equivalent all along the border (‘An equal degree of control shall be exercised at external borders’); and c) take account of the interests of all Schengen parties (‘taking account of the interests of all Contracting Parties’). The further rules contained within may be seen as aimed at implementation of these basic principles. The Convention, still in its external borders chapter,40 stipulates important details for the crossing of borders in terms of formal requirements (only at determined crossings and at fixed opening hours, Art. 3) and material ones (‘not be considered to be a threat to public policy, national security or the international relations of any of the Contracting Parties’, Art. 5). Another cornerstone of the early IBM system is found in the visa chapter, with its uniform set of visa rules for short-term visits not exceeding three months (Art. 10). There are ancillary provisions with a border impact such as the liability of carriers (Art. 26), liability of those providing assistance to unlawful immigration (Art. 27) and – of a highly practical importance – the Schengen Information System (SIS), to which authorities responsible for border checks and issuing visas are expressly entitled to access (Art. 101). These relatively few provisions were insufficient, however, to thoroughly shape Schengen-wide border management in view of obtaining a ‘uniform and high level of external border control’.41 The other elements needed were created outside the narrow context of the conventions, for example the joint list of countries whose nationals were subject to visa requirements42 and the uniform format for visas43 established as part of the Single Market legislation. Among the measures available inside the Schengen territory, the highest importance is attributed to those that allow member states’ enforcement services to act at or even across the internal border lines where routine controls have been 38 Hereafter this is abbreviated as ‘SCH90’ for the sake of convenience. 39 A. Niemenkari, ‘EU/Schengen requirements for national border security systems’, DCAF Working Paper Series, No.8, (2002). Council of the European Union, EU Schengen Catalogue, External borders control, Removal and readmission. 40 See Chapter 2 of Title II. 41 Council Regulation (EC) No. 2007/2004 of 26 October establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, OJ L 349 (25 November 2004), p. 1. 42 Council Regulation (EC) No. 2317/95 of 25 September 1995 determining the third countries whose nationals must be in possession of visas when crossing the external borders of the member states, based on Art. 100c TEC, OJ L 234, (3 October 1995), p. 1. 43 Council Regulation (EC) No. 1683/95 of 29 May 1995 laying down a uniform format for visas, OJ L 164, 14 July 1995, p. 1.

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abolished. This is seen as a compensatory measure in cases where the controls at the external border may prove insufficient to filter out instances of illegal immigration; in addition, they are considered as a defence against the infiltration of criminals originating in other parts of Schengenland. The most cited mechanism is the safeguard provision of Art. 2.2 SCH90, whereby member states may reintroduce controls at the internal borders ‘where public policy or national security so require[s]’, often considered an ‘emergency brake’ of a primarily psychological value allowing hesitant parties to accept the abolition of controls that would otherwise have been rejected.44 On the other hand, Art. 2.2 is often seen as the main tool for repressive governments to undermine the principle of free movement in favour of a ‘predominance of the security rationale’.45 It seems, however, that the practical importance of this provision is largely overestimated, as the temporary reintroduction of controls occurs rather rarely, while enforcement services have in the meantime established more refined and less cumbersome ways to counter illicit movements.46 Another pillar of the compensatory framework consisted of the provisions on police cooperation (Art. 39, SCH90). This mechanism was considered very advanced at the time of its creation, notably by allowing cross-border enforcement operations (surveillance of presumed criminals (Art. 40) and hot pursuit (Art. 41)). Development showed, however, that even this ‘advanced’ formula was quickly outdated. 3.2. From Amsterdam to Laeken Already during the first years of Schengen, it had become obvious that the existing rules and resources were insufficient for ensuring a coherent management of the external border.47 Also inside the territory it appeared that the ‘advanced’ police powers of the Schengen Convention were not able to match the freedom of movement granted to citizens (including criminals) through the Single Market. Politicians and practitioners thought about remedies that were first of all found at the bilateral level and later on encouraged by the EU. A great step forward was made by the Amsterdam Treaty of 1997 – whose Art. 62 foresaw Community competence for the crossing of external borders, rules on visas, etc. – and the integration of the Schengen acquis into the EU legal framework on 1 May 1999. In terms of IBM, progress was made at both the central EU and the member states level, the latter mainly through a network of bilateral agreements.

44 G. Callovi, Securing External Frontiers in a Union of 25, (Washington, D.C., 2004), retrieved from http://www.migrationpolicy.org/events/callovi_083104.pdf. 45 J. Apap and S. Carrera, ‘Maintaining Security within Borders: Towards a Permanent State of Emergency in the EU?’, CEPS Policy Brief, No. 41, (2003). 46 See section 3.2 below. 47 Commission of the European Communities, Communication: Towards integrated management of the external borders of the Member States of the European Union, paragraphs 12-14.

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3.2.1. Border-related measures (phase 2): the concept of burden-sharing The reasons for accelerating the move towards IBM at the EU level after the turn of the millennium were many: 1) the forthcoming enlargement as such exercised considerable pressure on the Union to ensure a high degree of border security, all the more so as the shifting of control responsibilities to inexperienced new members was considered an elevated risk, while public opinion seemed in any event alarmed by the increase of organized crime ‘imported’ from the east; 2) the September 2001 events increased the pressure to cope with terrorist risks in a coordinated way; and 3) the permanent need to reconfirm the mutual trust among those member states that had already abolished internal border controls – with their possible return to those controls overhanging the Union like a Damocles sword. The Commission Programme of May 2002 The signal for concrete action was finally given by the Laeken European Council of December 2001 stating that a ‘better management of the Union’s external borders will help in the fight against terrorism, illegal immigration networks and the traffic in human beings’.48 The Commission Communication towards integrated management of the external borders of the member states of the European Union, delivered upon the Council’s request in May 200249, focused on the following five categories of suggestions: Common Corpus of Legislation Given the continuing reticence of member states to tackle the sources of divergence in the law enforcement/criminal justice field, the Commission confined itself to proposing a very modest programme of ‘legislation’, that is 1) the recasting of the Common Manual on checks at the external border, known for its rather doubtful legal status; 2) the introduction, into the Common Manual, of certain ‘best practices’ from the Schengen catalogue; and, 3) the production of a practical handbook for use by border guards. More ambitious items concerned the ‘standards and procedures to be followed by Member States in carrying out checks’ and the creation of a ‘genuine inspection function at the external border’, which have eventually led to the proposal for a ‘Code on the rules governing the movement of persons across borders’ (or Community Border Code)50 currently pending in the European Parliament, and the invitation by 48 European Council (2001), Presidency Conclusions of the Laeken European Council, 14-15 December 2001, SN 300/1/01, REV 1, Conclusion no 42. 49 Commission of the European Communities, Communication: Towards integrated management of the external borders of the Member States of the European Union. 50 Commission of the European Communities, Proposal for a Council Regulation establishing a Community Code on the Rules governing the movement of persons across

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The Hague Programme to submit ‘a proposal to supplement the existing Schengen evaluation mechanism with a supervisory mechanism, ensuring full involvement of Member States’ experts, and including unannounced inspections’.51 Common Mechanism for Coordination and Cooperation A so-called ‘External Borders Practitioners Common Unit’ (EBPCU) was intended to become the central steering body for the EU’s IBM, responsible for carrying out risk analysis, facilitating operational projects on the ground and devising a common strategy for coordinating national policies. The EBPCU functions were initially attributed to the (loosely organized) Council Working Group SCIFA+, but as a result of increasing doubts about the capacity of SCIFA+ to meet the challenges involved, the idea of a permanent structure in the form of an agency soon came up. This new approach eventually led to the creation of the European Border Agency (see section 4.1 below). Another root of the new Border Agency (FRONTEX/EBA) lies in the adhoc centres created by the member states, each specialized in one type of border management field (Germany: land borders; Greece/Spain: maritime borders; Italy: airports; Finland: risk analysis; Austria: training; and the UK: control and surveillance technologies). Common, Integrated Risk Analysis This item would require in the first place the identification of common risk indicators. Constant monitoring of these indicators would then allow drawing conclusions for an EU-wide border risk-analysis. Staff and Inter-operational Equipment Suggestions were made to harmonize member states’ border infrastructure, both in terms of staffing (for example common training modules and joint language courses) and equipment (for example develop joint policies for expensive hightech equipment such as helicopters). This would gradually reduce quantitative and qualitative disparities likely to create security distortions. Long-term this strategy is expected to include the option of setting-up a college for European border guards.

borders, COM (2004)391, (Brussels, 26 May 2004). 51 Council of the European Union, The Hague Programme: Strengthening Freedom, Security and Justice in the European Union, Document no 16054/04 of 13 December 2004, p. 14.

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From Financial Burden-Sharing to the European Corps of Border Guards The burden-sharing concept is based on the observations developed above that the responsibility for managing the common border is very unequally distributed among the shoulders of just a few member states, which in addition tend to be among the least privileged in economic terms. Well aware of the delicacy of the (third-pillar related) terrain and national sensitivities, the proposal exploited the burden-sharing argument in a limited fashion. More specifically, it did not go beyond a partial compensation of national expenses nor did it invoke the responsibility side of the argument in favour of those member states that wanted to share not only expenses but also active responsibility for the actual management of the border. The temporary solidarity instruments subsequently put in place (the Schengen facility) amounted to a total of €960 million, which was foreseen to upgrade border equipment and training levels in seven new member states during the period 200406. A more progressive framework was expected for the period 2007-13, but with the recent set-back at the June 2005 European Council budget negotiations, it is yet uncertain what resources will be available for the new border. Table 1 shows the amounts envisaged for each country. Table 3: Schengen facility budget (€ millions) Member state

2004

2005

2006

Estonia Latvia Lithuania Hungary Poland Slovenia Slovakia

22.9 23.7 44.78 49.3 93.34 35.64 15.94

22.9 23.7 61.07 49.3 93.33 35.63 15.93

22.9 23.7 29.85 49.3 93.33 35.63 15.93

Source: European Commission, ‘Justice and home affairs issues both new and crucial to EU enlargement process’ (http:// europa.eu.int/comm/justice_home/fsj/enlargement/wai/fsj_ enlarge_intro_en.htm ). The European Corps of Border Guards (ECBG) was thought to perform the following tasks under the command of the Practitioners’ Unit (EBPCU): – handle surveillance functions only at certain parts of the external border and possibly later checks at border-crossing points; – exercise the full prerogatives of public authority needed to perform these tasks; and

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– respect the national authorities’ powers in matters not covered by Title IV (visas, asylum, immigration and other policies related to the free movement of persons) and Title X (customs cooperation) of the EC Treaty. The ECBG would be open at all hierarchical levels to qualified nationals of any EU member state. Despite its moderate ambitions, the project encountered strong objections from some of the member states concerned, which are situated on the external border (for example Poland and Finland), while being supported notably by France and Germany.52 It was therefore abandoned and in November 2003 replaced by the less operational proposal for a European Border Agency. 3.2.2. Internal measures (phase 2): joint centres and other alternatives to border checks Internal enforcement cooperation in the late 1990s was marked by the attempt to establish more efficient cross-border solutions, in particular to create alternatives to the old-fashioned and cost-intensive reintroduction of checks in the sense of Art. 2.2 SCH90. Joint Enforcement Centres From the perspective of avoiding bureaucratic communication structures in crossborder cooperation and taking advantage of direct personal contacts, a number of joint centres have been set up that host representatives of various enforcement services from both sides of the border.53 A forerunner was the French-German Police and Customs Cooperation Centre (PCCC) based in Kehl on the Rhine border, inaugurated in 1998 on the basis of the intergovernmental Mondorf Agreement of 9 October 1997, concluded in conformity with Art. 46 SCH90.54 Officers from police forces (Police Nationale, gendarmerie for the French and Landespolizei Baden-Württemberg and Rhineland-Palatinate, Bundesgrenzschutz for the German side) as well as French and German customs units work together under one roof, thus helping to address security deficits in the border regions caused by the fact that the law enforcement intervention has, in principle, to stop at the internal border. The PCCC’s role concerns information exchange and coordination but there 52 It should be added that some member states conducted test runs of joint teams operating on the common external border, for example Germany in December 2002 in cooperation with Greece, Italy and the UK, whereby the foreign officials, vested with public authority on the basis of a special provision of the German border guard law (BGS-Gesetz), were able to carry out passport controls, and other activities. 53 A. Maguer, Cross-Border Police Cooperation – Practical Manners, Institutions and Structures along the French-German Border, (Freiburg, 2002), retrieved from http://www. iuscrim.mpg.de/forsch/krim/maguer_e.html. 54 For details see Hobbing, Management of External EU Borders: Enlargement and the European Guard Issue, p. 19.

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is no operational remit. Another prominent example is the Police Euregion MaasRhine with a trilateral commissariat (Belgium, Germany and the Netherlands).55 Owing to the positive results obtained by the Kehl centre, this has become a model for regional enforcement cooperation implemented at numerous other locations throughout the Schengen territory and beyond, sometimes in the form of trilateral and quadrilateral structures: besides more than a dozen PCCCs created so far, there are also a number of police-only bodies called ‘Joint Police Stations’ (JPS). The further extension of these joint structures has been expressly welcomed and encouraged at the EU level by the Commission Communication on police and customs cooperation of 18 May 2004.56 Alternative Checking Methods A pragmatic alternative to border checks developed by French services relies on the routine stops of French motorway users at the toll stations – without any inconvenience to other users, customs and police staff may single out individual cars or trucks and conduct checks. Within a zone of 20 km from the borderline, such checks rely on Art.L611-9 of the Code on the Entry and Residence of Foreigners of 1 March 2005,57 while in other parts of the territory these may be based on other national provisions in accordance with Art. 2.3 SCH90.58 ‘Security Partnership’ – A New Generation of Bilateral Agreements Given that EU or Schengen-wide solutions such as the Convention on Mutual Legal Assistance in Criminal Matters59 are not likely to be put in place rapidly,60 member states have taken bilateral action to overcome the vacuum. A series of bilateral agreements have been concluded by Germany with Switzerland (1999), Belgium, the Czech Republic (2000), Denmark (2001), Poland (2002), Austria (2003) and the Netherlands (2005) (see Schmidt-Vockenhausen, 55 See La coopération policière en Europe, retrieved from http://www.ibz-gimborn.de/ Berichte/2003/Rapport%20IPA%2003%2008%20Europe.pdf. 56 Commission of the European Union, Communication, Enhancing police and customs cooperation in the European Union, COM(2004) 376, (Brussels, 18 May 2004), p. 10. 57 Code de l’entrée et du séjour des étrangers et du droit d’asile, retrieved from http:// www.association-diem.org/code-entree-sejour.htm. 58 Art. 2.3 states, ‘3. The abolition of checks on persons at internal borders shall not affect...the exercize of police powers throughout a Contracting Party’s territory by the competent authorities under that Party’s law, or the requirement to hold, carry and produce permits and documents provided for in that Party’s law.’ 59 Convention on Mutual Legal Assistance on Legal Matters, OJ C 197 of 12 July 2000. 60 So far, only three member states have ratified the Convention: Spain, Portugal and Denmark.

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2005), and there is also a new Benelux treaty on police cooperation that was concluded in 2004.61 The new agreements go beyond the limits of classical assistance in some striking ways and are considered a sort of ‘quantum leap’ in international police matters: hot pursuit, observation and undercover investigation are no longer subject to limitations in time or space (in the past, cross-border action – if allowed at all – was confined to a border zone and certain time limits); enforcement officials are entitled to arrest offenders on foreign territory when caught in the act and surveillance may also take place as a preventive measure; local police offices may in urgent cases file requests for mutual assistance directly with a foreign authority (previously there was a multi-step procedure involving central authorities); staff engaged in cross-border operations can in certain cases be vested with public authority of the foreign state when acting under the orders of that state; the agreements cover the transmission and verification of DNA profiles; and, enforcement staff may spontaneously undertake cross-border threat prevention steps in cases of emergency. Furthermore, the agreements foresee various forms of cooperative activities such as joint patrols, surveillance and investigations.62 63 Another move forward was made by seven ‘core’ members of Schengen (Austria, Belgium, France, Germany, Luxembourg, the Netherlands and Spain). They decided to launch a ‘Schengen-3’ arrangement64 signed on 27 May 2005, which would intensify cooperation by means of data exchange on potential terrorists and other criminals (so-called ‘risk persons’), armed flight attendants and major football events (for example, the FIFA World Championship in 2006). 3.2.3. Measures at the international level and on technical infrastructure It is self-evident that a comprehensive IBM approach has to be seen in a wider context and cover aspects of international cooperation as well the technical infrastructure, as both are indispensable to ensure the smooth running of the system. Although this paper does not intend to enter deeply into the subject, the following references seem important.

61 See the Treaty of 8 June 2004 (www.benelux.be/fr/rgm/pdf/rgm_Politieverdrag2004_ fr.pdf ); see also P. Zanders, La coopération policière – BENELUX, presentation given at the ERA seminar The Schengen Acquis in Police Cooperation, (Trier, 15-16 March 2005). 62 M. Schmidt-Vockenhausen, Bilateral agreements between Germany and Switzerland (and other European countries), presentation given at ERA seminar The Schengen Acquis in Police Cooperation, Trier, (15-16 March 2005). 63 A major instance of cooperation referred to is the 2003 G8 summit held in Evian, when a German police force of 1,000 officers equipped with armoured water-cannon vehicles assisted the Swiss authorities in maintaining public order. See ‘Engagement de policiers allemands pour le G8’, UDC, Berne (retrieved from http://www.svp.ch/?page_id=460&l=3). 64 See Nachrichten Überblick (retrieved from http://pocket.nachrichten.at/politik/ innenpolitik/360885).

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At the international level, action should concern activities in and arrangements with countries of origin and transit,65 whereby the focus would first be on the issuing of visa and other consular issues as well as readmission/return matters (dialogue on migration and asylum). Second, there is the technical border cooperation with neighbouring countries (for example new neighbours in the east) as well as traditional trading and political partnerships (for example the US and Canada), the intention of which is to enhance security but also to create a smoother system of managing borders and anticipating problems. In this context, recent arrangements with the US on the advanced transfer of passenger name records and data (PNR)66 and container security (CSI)67 are notable, as they embody mechanisms that lead to a ‘virtual forward-shift’ of the borderline, giving border staff added time for control purposes. Similarly, the internal technical infrastructure in terms of data and communication systems represents a cornerstone of the EU’s IBM: without the SIS linking relevant authorities – regardless of their geographical location in central offices in the capitals, as border staff right on the front line or consular representations abroad – a coordinated operation of border matters would be unthinkable. Of course, through the rapidly changing European landscape and the increasing number of participating countries and services, existing technologies become outdated. It is the challenge of the years to come to adapt the infrastructure to the new situation.68 The envisaged SIS II system will be able to accommodate links with all 25 member states together with new visual features to enrich the content of the databases (fingerprints, photos, etc).69 SIS II will share its technical platform with the future Visa Information System70,

65 G. Callovi, ‘Border controls, visa policy and biometrics’ in S. Alegre et al., ‘The Hague Programme: Strengthening Freedom, Security and Justice in the EU’, EPC Working Paper, No. 15, (2005). 66 Council of the European Union, Decision of 17 May on the conclusion of an Agreement between the European Community and the United States of America on the processing and transfer of PNR data by Air Carriers to the United States Department of Homeland Security, Bureau of Customs and Border Protection, (2004/496/EC), OJ L 183/83, (20 May 2004). See also EU-US Agreement on Passenger Name Records (PNR) of 28 May 2004, OJ L 183, 20 May 2004, p. 83 (retrieved from http://europa.eu.int/comm/external_relations/us/intro/pnr_ agreement0504.pdf). 67 Council of the European Union, Agreement between the European Community and the United States of America on customs cooperation and mutual assistance in customs matters to include cooperation on Container Security and Related Matters of 22 April 2004, OJ L 304 (30 September 2004), p. 34. 68 Commission of the European Communities, Communication, Development of the Schengen Information System II and possible synergies with a future Visa Information System (VIS), COM(2003) 771, (Brussels, 11 December 2003). 69 Commission of the European Communities, Schengen: From SIS to SIS II, MEMO/05/188, (Brussels, 01 June 2005), retrieved from http://www.europa.eu.int/rapid/. 70 Council of the European Communities, Decision of 8 June establishing the Visa Information System (VIS) (2004/512/EC), OJ L 213, (15 June 2004), p.5.

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whose purpose it is to render visa application procedures more transparent, facilitate consultations and avoid abuse in the form of ‘visa shopping’.71 4. Current Initiatives in light of The Hague Programme In 2005, the central event in border management has – so far – been the establishment of the EBA,72 based on Council Regulation (EC) No. 2007/2004,73 with a seat in Warsaw74 and the Finnish Colonel Ilkka Laitinen appointed as executive director.75 This event definitely outshines all the rest but it should not be forgotten that further developments such as the Community Border Code, currently being discussed by the Council and European Parliament, and the proposed regulation for local border traffic between the EU and third countries equally merit attention. 4.1. European border agency (FRONTEX) In comparison to the original concept of a European Border Guard, the EBA may appear a more modest achievement, given that it foresees no direct operational assignments and would not match the ‘blue helmet’ border force image that the Belgian presidency had originally had in mind back in 2001. Yet the EBA represents not only a realistic implementation (resentments against any type of multinational force were too strong at the time) but also one that seems able to adapt to challenges arising in the future. There is a solid financial and organizational basis as a Community body (Art. 15 and 29)76 and a clear hierarchical structure integrating the former ad71 For further details, see ‘EU Visa Information System gets go-ahead’, IDBAC website (retrieved from http://europa.eu.int/idabc/en/document/2186/330). The first step will be the processing of alphanumeric data and digital photographs of visa applicants, to be implemented by the end of 2006. Among other things, the VIS database will include personal identification information, the status of the visa, the issuing authority and a record of persons liable to pay board and lodging costs. The second step will consist of the addition of biometric data to the VIS and will start, if possible, by the end of 2007. This second step should be taken in coherence with the choice of biometric identifiers in the field of visas and taking into account the outcome of the on-going technical developments. Some individual member states will be allowed to store fingerprints and facial images earlier than other member states. 72 The official denomination of the EBA is the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union. 73 Council Regulation No. 2007/2004, OJ L 349, 25 November 2004, p. 1 74 Decision taken by JHA ministers on 14 April 2005, turning down the further candidatures by Hungary, Estonia, Slovenia and Malta (see the EU Observer of 15 April 2005). 75 See ‘Finn to head EU borders agency’, EU Observer, 26 May 2005 (retrieved from http://www.euobserver.com/?sid=22&aid=19163). 76 Besides the Community subsidy, EBA revenues also include contributions from the associated countries Norway, Iceland and later Switzerland as well as ‘any voluntary

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hoc centres of the member states as ‘specialized branches’ of the agency (Art. 16). Unlike intergovernmental agencies such as Europol, the EBA has its own staff (Art. 17), and thus does not have to rely on liaison officers detached from the member states and who are still mainly responsible to the latter. The current staff amounts to 26 officials, but will eventually be increased to 100. The agency’s role is based on the following cornerstones in terms of assignments: • • • •

assist member states in training matters (Art. 2.1.b); carry out risk analyses (Art. 2.1.c); follow-up on research relevant for border control and surveillance (Art. 2.1.d); and support member states in organising return operations.

Although operational action remains the prerogative of the member states (see clause no. 4), the Agency appears to have sufficient means to put its own stamp onto this sector as well. The EBA is responsible not only to 1) coordinate operational cooperation among member states (Art. 2.1.a); 2) evaluate, approve (!) and coordinate proposals for joint operations and pilot projects made by member states, but also to 3) launch its own ‘initiatives’ in this field (Art. 3.1). Further, member states shall report to the Agency on operational matters occurring outside the framework of the Agency (Art. 2.2). EU-wide coherence of operational border management can further be promoted through the EBA’s competence over: • • • • • • •

evaluating the results of joint operations (including the establishment of a ‘comparative analysis in view of enhancing the quality, coherence, and efficiency of future operations’, Art. 3.3); co-financing such operations (Art. 3.4); developing and applying a common integrated risk analysis (Art. 4); establishing a common core curriculum for border guards’ training (Art. 5); following the development of research related to control and surveillance equipment and disseminating results to member states (Art. 6); providing ‘organizational and operational assistance’ to member states in cases of need and at their request, including the ‘deployment of its experts for support’ (Art. 8); and facilitating operational cooperation with third countries (Art. 13).

With this wide spectrum of operations-related tasks, the Agency will doubtlessly be able to decisively contribute to the shaping of a Union model of operational cooperation. Further incentives such as financial subsidies and the offer of practical help through EBA staff on the spot appear quite tempting and hard to resist in contribution from the Member States’ (Art. 29.1).

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situations of need. One can thus assume that at mid-term, mutual trust between the EBA and national authorities will build up and requests for operational assistance will become more frequent. In the end, the difference between the EBA expert teams and rapid reaction forces in the sense of the 2002 Communication may be hardly visible. Also, doors seem to be open to any subsequent development. As the Agency is tasked to commission an independent external evaluation of its performance (Art. 33), such a study would include the item of the ‘need for and feasibility of setting-up a European Border Guard’ as requested by the European Parliament.77 4.2. Proposal for a European border code78 In conformity with the announcement in its 2002 Communication,79 the Commission undertook to ‘clarify, restructure, consolidate and develop rules on border controls on persons’ developed within the Schengen intergovernmental framework and give it a ‘Community character’. It hereby tackles the main criticism expressed towards the rules of the Common Manual and other acts originally adopted by the Schengen Executive Committee, that is their doubtful legal status as well as the parallel existence of ‘many overlapping sources’.80 Presented in May 2004, the proposal is the first to be treated according to the new legislative procedure for border measures in force since April 2005 following agreement on The Hague Programme,81 that is qualified majority voting in the Council and co-decision within the Parliament. Major changes proposed by the Parliament include the treatment of asylum seekers, checks on family members of EU citizens, non-discrimination standards to be respected by border guards and new procedural rights for persons checked at the border.

77 Amendments 18 and 49 requested by the European Parliament legislative Resolution, OJ C 102, 28 April 2004, p. 35. 78 Commission of the European Communities, Proposal for a Council Regulation establishing a Community Code on the Rules governing the movement of persons across borders, COM (2004)391, (Brussels, 26 May 2004). 79 See paragraph 22 on short term measures, Commission of the European Communities, Communication: Towards integrated management of the external borders of the Member States of the European Union. 80 See S. Peers, Revising EU border control rules: A missed opportunity?, Statewatch Analysis, (London, 2005), retrieved from http://www.statewatch.org/news/2005/jun/euborder-code-analysis.pdf. 81 Decision by the European Council of 5 November 2004.

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4.3. Proposal for a regime of local border traffic82 This proposal is to be seen in the context of the ‘fortress Europe’ discussions of recent years, in which the EU has been widely criticized for introducing a new ‘iron curtain’ between the new member states and neighbours in the east.83 Although the proposal cannot do away with the basic visa requirements imposed by the Schengen mechanism, there are a number of ways to soften the rules. The facilitation measures proposed centre around a special ‘L’ visa for border residents (‘L’ being taken from ‘local’). The advantages granted to holders of an ‘L’ visa would be numerous: •

• • •

As a multiple-entry visa, it is issued for at least one year and for a maximum of five years, entitling the holder to stay in the border area of the issuing member state for seven consecutive days maximum and without exceeding, in any case, three months within any half-year period. The issuing member states may decide to reduce or waive the visa fees normally foreseen. Specific border crossing points open only to border residents may be set up or specific lanes reserved for border residents at ordinary border crossing points. The implementation would be by the member states concerned by conclusion of a specific agreement with the neighbouring country (for example Poland with Ukraine).

4.4. Statements in The Hague programme on border management A first reaction by border professionals towards the Hague Programme may be that of disappointment, since there is no specific header foreseen for their topic.84 It is partially regretted that some border issues are spread over several sections, for example the use of EU know-how and funds to ‘build border-control capacity’ is under item 1.6, while the ‘external dimension’ and the ‘use of passenger data for

82 Commission of the European Communities, Proposal for a Regulation of the European Parliament and of the Council laying down rules on local border traffic at the external land borders of the Member States and amending the Schengen Convention and the Common Consular Instructions, COM(2005) 56, (Brussels, 23 February 2005). 83 See for example ‘Poland’s EU border challenge’, Radio Netherlands, (1 May 2004). 84 In addition, borders appear as just an annex to the section on the ‘Management of migration flows’, as if the subject concerned only those wishing to leave their country definitely to resettle elsewhere or it did not equally concern travellers who cross borders for the purposes of business and pleasure and who wish, by all means, to return to their country of origin. This mix-up is, by the way, not in line with the Constitutional Treaty as adopted in December 2004, which in Art. III-267 confines ‘migration management’ to the issue of a common immigration policy.

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border and aviation security’ are under item 2.2 ‘strengthening security’.85 But this appears to be a formal concern rather than a disparity and may be explained by the lesser importance of borders as a general category in comparison with security and external relations. In terms of content, the Hague Programme contains more than a dozen assignments dealing with aspects of border management, whereby their respective added value and creative importance for the further enhancement of IBM are quite diverse. Besides mere reminders of existing tasks/deadlines such as the ‘swift abolition of internal border controls’ or the ‘evaluation of the EBA...before the end of 2007’, creative new accents have been placed on certain issues previously neglected.86 These are the following: •

•

Reinforced supervision of the level of control and surveillance to ensure that it is equivalent all along the external border – the Commission is to propose a supervisory mechanism, based on member states’ experts and including unannounced inspections (1.7.1). This would replace the current peer-review function of the Working Party on Schengen Evaluation (Sch-Eval) and represent a big step forward towards an autonomous pool of inspectors, who could directly file infringement procedures against non-complying member states. Although The Hague Programme duly refers to the traditional concept of operational IBM as a national prerogative,87 various action items definitely pave the way towards an operational function of FRONTEX: 1) the set-up of teams of national experts who can provide rapid technical and operational assistance to member states requesting it (Commission proposal to be presented

85 G. Callovi, Border controls, visa policy and biometrics. 86 Council of the European Union, the Hague Programme. 87 Section 1.7.1 of The Hague Programme states that ‘The control and surveillance of external borders fall within the sphere of national border authorities. However, in order to support Member States with specific requirements for control and surveillance of long or difficult stretches of external borders, and where Member States are confronted with special and unforeseen circumstances due to exceptional migratory pressures on these borders, the European Council: • invites the Council to establish teams of national experts that can provide rapid technical and operational assistance to Member States requesting it, following proper risk analysis by the Border Management Agency and acting within its framework, on the basis of a proposal by the Commission on the appropriate powers and funding for such teams, to be submitted in 2005; • invites the Council and the Commission to establish a Community border management fund by the end of 2006 at the latest; • invites the Commission to submit, as soon as the abolition of controls at internal borders has been completed, a proposal to supplement the existing Schengen evaluation mechanism with a supervisory mechanism, ensuring full involvement of Member States experts, and including unannounced inspections.’

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in 2005); 2) an explicit instruction that the forthcoming review of the EBA and its tasks ‘should include the feasibility of the creation of a European system of border guards’; 3) an ‘assessment of whether the Agency should concern itself with [still] other aspects of border management’; and, 4) establishment of a Community border management fund (to be accomplished in 2006). This massive focus on increased powers of the EBA together with the reference to ‘long or difficult stretches of external borders…where Member States are confronted with special and unforeseen circumstances due to exceptional migratory pressures on these borders’ can easily be interpreted as preparation for a new phase of European border management marked by a strong central element.

There is certainly no complete synergy between all the ongoing initiatives and The Hague Programme, an element particularly missing in the latter to enable it to lend support to important issues such as the European Border Code project, which is still far from being accomplished. Nevertheless, The Hague Programme sets a few new accents helping to promote the specific requirements of integrated border management at the EU level. Even if generally not considered the ‘ambitious milestone’ as advertized by the Dutch presidency, it represents a solid continuation of the Tampere road. For those whose interests exclusively focus on IBM, it may still deserve the label of a landmark, signalling that this issue had not been utterly spoiled by the Tampere Conclusions in 1999. 5. Conclusion The process of perfecting border management is sometimes seen as an integral part of a repressive strategy to make borders less permeable and discourage the free movement of persons. It is certainly true that IBM helps to further some aspects of security through the EU-wide introduction of advanced equipment and coordinated communication/database structures. Borders will be a greater obstacle to those who are not wanted inside the territory. But, on the other hand, technology-based and coherently structured controls will present no obstacle to licit travellers – they are likely to even speed up clearance procedures.88 The use of high-tech equipment and biometrics in border control still involves a number of legal problems (particularly with regard to privacy), which definitely need to be resolved. At the same time, the use of advanced technology certainly promizes a decisive streamlining of bureaucratic procedures and a general reduction of waiting times, without neglecting the security concerns.

88 In this context, one should not neglect the seemingly paradoxical observation made at old-style borders, for example on the border between Poland and Ukraine prior to the introduction of the EU visa requirement, that control procedures then took much longer than is the case at a normal Schengen border where visa checks take place.

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It would therefore be the great advantage of a carefully balanced IBM approach to be able to accommodate the interests of almost all involved at the border: travellers, transporters, border staff and security services. Also for the security concerns of the member states further away from the border, such a mechanism could prove a sufficient safeguard to maintain the trust needed for the open borders of Schengenland. On the other side, when such safeguards are not visibly in place, one must fear that these member states – pushed by public opinion – may return to old ad-hoc measures in the style of Art. 2.2 SCH90. It is thus to be strongly hoped that IBM represents a convincing solution to all those involved in border matters, because any return to fragmented approaches will not only put external border security at risk but also the well-functioning of the internal area.

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Chapter 10

Negotiating the EU External Border Laura Corrado1

1. From ‘Border Control’ to ‘Border Management’ Since the early developments of Community policies in the area of justice and home affairs (JHA) in the mid-70s, the notion of ‘border control’ was closely linked to the notion of ‘free movement of persons’ and to the internal market philosophy of an ‘… area without internal frontiers in which the free movement of goods, persons, services and capital is ensured […]’.2 Thus, the exercise of effective controls at external borders was considered as one of the ‘flanking measures’ needed to accompany the abolition of border controls on persons within an area of free movement.3 This was the approach followed also in the framework of the intergovernmental experience of Schengen,4 where the ‘compensatory measures’- including common rules on border control, a common visa policy, and measures strengthening police and judicial cooperation – were built around the main objective, that was the abolition of internal border controls on persons (Article 2 of the Schengen Convention). This approach

1 The views expressed are those of the writer and may not be regarded under any circumstances as stating an official position of the European Commission. 2 Definition introduced in the EC Treaty by the Single European Act (1986), OJ L 169/1987 (see Article 14 of the EC Treaty, former Article 8A). 3 Particularly significant in this respect is the so-called Palma Report (1989) drafted by the ‘Coordinators’ Group on Free Movement of Persons’ – one of the intergovernmental groups set up in the period preceding the Maastricht Treaty and creation of the Third Pillar – and presented to the European Council of Madrid in June 1989. The Report sketched out a series of accompanying measures to the abolition of internal border controls on persons, such as the adoption of common measures to control borders, the strengthening of cooperation between police and customs services, the setting up of a system for the exchange of information on wanted and non-admissible persons etc. 4 Agreement between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their internal borders, signed in Schengen on 14 June 1985 (OJ L 239/2000, p. 13). This first agreement was followed five years later by an implementing Convention, also signed in Schengen, on 19 June 1990 (Ibid., p.19). The Schengen Convention entered into force on 26 March 1995 between its founding members, plus Spain and Portugal. Currently the ‘Schengen area’ covers the fifteen ‘old’ Member States, except the United Kingdom and Ireland, plus Norway and Iceland.

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was later reflected in the wording of the JHA sections of both the Maastricht and the Amsterdam Treaties.5 It has to be noted that, in this regard, the draft Constitutional Treaty6 would have brought forward a radical change of approach by including, amongst the objectives to be achieved in the framework of the area of freedom, security and justice, under the section dealing with policies on border checks, asylum and immigration, ‘the gradual introduction of an integrated management system for external borders’ (Article III265, paragraph 1, point c). The latter becomes therefore an objective in itself, and the clear link that had been previously established between the abolition of internal border controls on persons and the control of external borders is abandoned7. This shows very clearly – regardless of any other consideration on the draft Constitution and its fate – how much both the concept itself and the approach to the question of ‘border control’ evolved at EU level within a relatively short time-frame8. The concept of ‘integrated border management’ was developed extensively in the 2002 Commission Communication to the Council and the European Parliament Towards Integrated Management of the External Borders of the Member States of the European Union9. In that Communication, the Commission pleaded for the establishment of a coherent set of measures (legislative, operational and financial) leading to an integrated system to manage efficiently the EU external borders. The notion of (border) ‘management’, instead of ‘control’ also implied a shift, at least conceptually, from the purely security-related approach to a more global one, focusing not only on the prevention of illegal migration and of security threats but also on a smooth border crossing for bona fide travellers. The implications of such a conceptual shift might perhaps also have influenced the change of approach towards the EU neighbours following the recent enlargement, as discussed in section 3. 5 On the basis of Article K.1 of the Maastricht Treaty, ‘for the purposes of achieving the objectives of the Union, in particular the free movement of persons’ Member States shall regard as ‘matters of common interest’ nine areas, amongst which ‘rules governing the crossing by persons of the external borders of the Member States and the exercise of controls thereon’ (point 2). Following the entry into force of the Amsterdam Treaty, the newly established Article 61 of the Treaty establishing the European Community (TEC) reads: ‘In order to establish progressively an area of freedom, security and justice, the Council shall adopt: a) […] measures aimed at ensuring the free movement of persons […] in conjunction with directly related flanking measures with respect to external border controls […]’. 6 OJ C 310/2004. 7 See G. Callovi, ‘Border controls, Visa Policy and Biometrics’, in S. Alegre et al., The Hague Programme. Strengthening Freedom, Security and Justice in the EU, EPC Working Paper No 15, (Brussels, 2005). 8 On the impact of the draft Constitution for the area freedom security and justice in general, see E. Guild and S. Carrera, ‘No Constitutional Treaty? Implications for the Area of Justice, Freedom and Security’, CEPS Working Document No 231, (Brussels, 2005). 9 Commission of the European Communities, Communication from the Commission to the Council and the European Parliament – towards integrated management of the external borders of the member states of the European Union, COM(2002)233 , (Brussels, 7 May 2002).

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It has to be stressed, however, that the above Communication limited itself to define and develop the concept of ‘integrated border management’ in the framework of JHA policies and, more particularly, in respect of the control of persons at the border.10 It did not cover the customs aspect of border control – which made afterwards the object of a separate Communication11 – nor did it discuss the Second Pillar aspects linked to EU border policy and its broader foreign policy implications. The Communication did not cover visa policy neither, although this is an element that can be considered as part of a broader notion of border management: again, if we refer back to the draft Constitution, the notion of ‘integrated management system for external borders’ in Article III-265, paragraph 1 also encompasses measures concerning ‘the common policy on visas and other short-stay residence permits’ (paragraph 2, point a). Such a broader approach has been recently followed in the Commission proposal for a Decision of the European Parliament and the Council establishing the External Borders Fund for the period 2007-013 as part of the general programme ‘Solidarity and Management of Migration Flows’,12 which also covers measures related to cooperation in the field of visa policy (see, in particular, Articles 3.1.d, 4.4.d-h, 5.1.k and 7.2). In addition, visa policy is also part of the first layer – the so-called ‘pre-frontier’ measures – of the border security model as outlined in the ‘Schengen Catalogue of Best Practices on external borders’.13 For these reasons, visa policy will also be considered, as an element of the broader notion of ‘border management’, when assessing the impact of the Schengen acquis, and in particular of the border management acquis, in the enlargement process (see below section 2). If we look back at the context in which the 2002 Communication was drafted, we can easily see that the main objective of the Commission was, at the time, to put some order – while, obviously, reaffirming its role of policy initiator in an area clearly falling under Community competence after the entry into force of the

10 For an analysis of the ‘polyvalence’ of the concept of integrated border management within the EU and beyond, see P. Hobbing, ‘Integrated Border Management at EU Level’, CEPS Working Document No 227, (Brussels, August 2005). 11 Commission of the European Communities, Communication on the role of customs in the integrated management of external borders, COM (2003)452, (Brussels, 24 July 2003). 12 Commission of the European Communities, Proposal for a decision of the European Parliament and the Council establishing the External Borders Fund for the period 2007013 as part of the general programme ‘Solidarity and Management of Migration Flows, COM(2005)123, (Brussels, 4 April 2005). 13 Council of the European Union – General Secretariat, DG H (2002), EU Schengen Catalogue – External Borders Control, Removal and Readmission: Recommendations and Best practices, (Brussels, 28 February 2002), retrievable from the Council website: www. consilium.eu.int. The Catalogue, which has no legally binding value, is nevertheless used for assessing the compliance with Schengen standards in the framework of the Schengen evaluation process (See below section 2.2).

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Amsterdam Treaty14 – amongst the various ideas, proposals and suggestions floating around in 2001-2002 on how to strengthen and improve border management at the external borders of the EU. As examples of such ideas and projects we can mention the Finnish initiative, in October 2001, on the establishment of an External Border Forum;15 the paper presented by the Belgian Presidency, in the same period, on a ‘European management concept on border control’;16 the Workshop on Police and Border Security;17 and the feasibility study carried out by Italy and other partners on a European border police,18 which suggested the creation of what would afterwards become the various ‘centres’ for land, sea and air borders.19 The Commission’s objective was fully achieved since the Plan for the management of the external borders of the Member States of the European Union20, adopted by the Council on 13 June 2002 and subsequently endorsed by the European Council of Seville of 21-22 June 2002, took on board, to a large extent, the ideas and proposals put forward in the Commission Communication. The only substantial exception is perhaps the idea of a ‘European Corps of Border Guards’, to which several Member States seemed to be quite ‘allergic’ fearing that this would threaten their sovereignty over their borders. It has to be stressed, however, that in the Commission’s view this has always been seen as a long-term development and that such a European Corps

14 With the entry into force of the Amsterdam Treaty on 1st May 1999, the Community obtained full competence to adopt measures on visas, borders, immigration (both legal and illegal), asylum and on other policies linked to the free movement of persons (new Title IV of the TEC). 15 The Finnish proposal aimed at creating a special group, within the framework of the institutional structures of the EU, where the Operative Heads of the national authorities responsible for border control could meet and discuss operational issues. This idea was formally presented at the Strategic Committee on Immigration, Frontiers and Asylum (SCIFA) on 25 October 2001. 16 Council of the European Union, Document No 13147/01 FRONT 58, of 23 October 2001. All Council documents cited in this article can be found on the Council register and retrieved from the following address: http://ue.eu.int/cms3_applications/showPage.ASP?id= 549&lang=en&mode=g. 17 This was a project developed by Austria, Finland and Belgium in the first semester of 2002 and co-financed by the OISIN programme (now replaced by AGIS), which aimed at promoting exchange, training and cooperation between police and customs officials of the European Union. The final report elaborated a model of ‘border security’ similar to the one that was afterwards included in the Schengen Catalogue (see footnote 10). 18 Studio di fattibilità per la costituzione di una ‘polizia di frontiera europea’, Final Report, (Roma, 30 May 2002). This study was co-financed by the Odysseus programme (now replaced by ARGO). 19 On the developments of operational cooperation between Member States prior to the establishment of the External Borders Agency see F. Pastore, ‘ The EU Entry Control System’, in N. Walker (ed.), Europe’s Area of Freedom, Security and Justice, (Oxford, 2004), p. 89. 20 Council of the European Union, Document No 10019/02 FRONT 58, of 14 June 2002.

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would never replace national border guard services but would only support them in case of need (see points 47-51 of the 2002 Communication). As far as the legislative and the operational aspects of the ‘integrated border management system’ are concerned, it can be reasonably argued that the main measures foreseen in the 2002 Communication and in the subsequent Plan have been taken or are about to be adopted. The reference here is, in particular, to the establishment of a ‘common corpus of legislation’ – the Schengen Borders Code21 – and of a ‘common coordination and operational cooperation mechanism’ – the External Borders Agency.22 The Borders Code codifies, clarifies and develops within a single instrument – which replaces part of the Schengen Convention and various other pieces of the Schengen acquis23 – the whole Community acquis on external and internal borders24 and can be considered as one of the first successful examples of co-decision applied to JHA issues.25 As to the Agency, established since 1 May 2005, it is now in the phase of recruiting its own staff in order to be soon able to fully perform its tasks, that is to coordinate the operational cooperation between Member States (by organising and/or coordinating joint actions at the external borders), to provide technical and operational assistance, to carry out risk analyses, to assist Member States on training of their border guards and to provide them with the necessary support in organising joint return operations. With regard to the financial aspect (the ‘burden sharing’ between Member States), the Commission has put forward a proposal on a solidarity fund for the management of external borders, as part of the measures proposed under the framework programme ‘Solidarity and Management of Migration Flows’,26 on which discussion has started 21 (Draft)European Parliament and Council Regulation establishing a Community Code on the movement of persons across borders (Schengen Borders Code). Political agreement between the Council and the European Parliament on this draft Regulation was reached in early June 2005; the EP formally voted on the text on 23 June and the Council is expected to adopt it at the JHA Council of 1/2 December 2005. The text as voted by the Parliament can be retrieved from the latter’s website (http://www.europarl.eu.int). 22 European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, formally established by Council Regulation (EC) No 2007/2004 of 26 October 2004 (OJ L 349/2004, p.1). 23 The Borders Code will replace, namely, Articles 2-8 of the Schengen Convention, the Common Manual on external border controls (published in the OJ C 313/2002, p.97) and few other decisions adopted under the intergovernmental phase of Schengen (for the list, see Article 39 of the Borders Code). 24 The Commission separate proposal on ‘local border traffic’, still under discussion, is examined in section 3. 25 Co-decision applies to measures on external borders since 1 January 2005, following the entry into force of Council Decision 2004/927/EC of 22 December 2004 providing for certain areas covered by Title IV of Part Three of the Treaty establishing the European Community to be governed by the procedure laid down in Article 251 of that Treaty (OJ L 396/2004, p. 45). 26 Commission of the European Communities, Communication on the role of customs in the integrated management of external borders.

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in July 2005 within the relevant Council groups. It is clear, however, that final agreement on this instrument is dependent on an overall agreement on the financial perspectives 2007/2013. As for future developments, the Hague Action Plan (adopted by the European Council on 16 June 2005)27 foresees, in the short term (2006), the adoption of a common ‘Handbook for border guards’, that is a non-legally binding, practical tool to be used by national border guards in the performance of their border control duties, which would ensure a uniform implementation of Community rules on border control. For the medium term (2007), two further actions are planned: a proposal for setting up, within the framework of the Agency, ‘teams of national experts’ providing technical and operational assistance to Member States in the control of external borders, and a review of the tasks of the Agency – which could be extended to other areas, such as customs and phyto-sanitary controls – including the evaluation of the functioning of the national teams.28 2. Negotiating the EU External Border 2.1. The Schengen acquis and accession negotiations From the brief overview made of the recent and future developments at EU level in the area of border management, it is clear that this is an element of the acquis which has been a growing challenge for the Member States who recently joined the EU and that will remain so for current and future candidate countries. In general, the whole area of justice and home affairs has expanded so much in the latest years that it has been a real ‘moving target’ for candidate countries and, in some cases, one of the key chapters in the accession negotiations. The main challenge of such acquis lies, perhaps here more than in other areas, on the practical implementation capacity, requiring in most cases changes to administrative and judiciary structures, practices, procedures and, above all, culture.

27 Council of the European Union, Document no. 9778/2/05/REV 2 JAI 207, of 10 June 2005. 28 In this regard, it has to be noted that in the initial ‘Hague programme’, as approved by the European Council of 4-5 November (OJ C 53/2005, p.1), as well as in the Commission Communication proposing an Action Plan to implement The Hague programme (COM (2005)184 final), the date for the proposal on setting national teams of experts was 2005; this would have left enough time for assessing their functioning in 2007 (which is not the case in the final version of the Action Plan, the setting up and the evaluations being simultaneous!). In addition, the Commission Communication also included a proposal on the executive powers conferred to Member States’ officials operating at the external border of another Member State – on the basis of the results of an on-going feasibility study on the issue – to be presented in 2006. This latter measure was not retained in the final version of the Hague Action Plan. These changes are due, very likely, to the persisting reluctance of several Member States to consider, even as a long-term idea, the notion of ‘European Border Guards’.

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2.1.1. The Schengen two-step implementation mechanism The integration of the ‘Schengen acquis’ 29 into the framework of the European Union on 1 May 1999, certainly contributed to increase not only the volume of the JHA acquis but also its complexity,30 and implied new challenges for the candidate countries.31 It is to be stressed that, in accordance with Article 8 of the Protocol integrating the Schengen acquis into the framework of the European Union (Schengen Protocol), such acquis – contrary to the opting outs granted to some of the ‘old’ Member States32 – has to be accepted ‘in full’ by any country wishing to join the EU. However, the implementation of the Schengen acquis by any new Member State is to be done in two stages. This means that some parts of the Schengen acquis are to be applied upon accession (so called ‘Category I’ provisions), while some other parts, while being binding upon accession, are intrinsically linked to the lifting of internal border controls and are thus only applicable upon joining the Schengen area (so-called ‘Category II’ provisions). During the ‘transitional phase’ between accession and full participation into Schengen, the new Member States would have

29 The ‘Schengen acquis’, published in the OJ L 239/2000 (except some confidential parts), includes the 1985 Schengen Agreement, the 1990 Implementing Convention, the various Acts of Accession, and most of the decisions, as well as some declarations, taken by the Schengen Executive Committee during the intergovernmental phase. The exact list of the Schengen acquis, as well as the definition of the relevant legal bases in the EC/EU treaties for its future development, have been determined by Council decisions 1999/435/ EC and 1999/436/EC of 20 May 1999, both published in the OJ L 176/1999, pp. 1 and 17 respectively. 30 The JHA acquis was determined informally for the first time by the JHA Ministers in 1996 and then formally confirmed by the Commission in its Reports on the progress made by candidate countries in fulfilling the Copenhagen criteria in 1998. It has to be stressed, however, that negotiations on the JHA chapter were open only in 2000. On the determination of the scope of the JHA acquis vis-à-vis candidate countries, see S. Lavenex, ‘Migration and the EU’s new Eastern Border: between Realism and Liberalism’, Journal of European Public Policy, (February 2001): 24. 31 The challenge was also for the Community Institutions, and especially for the Commission: when the accession process was officially open in 1998, JHA competencies were split between the Directorate General Internal Market (for issues related to free movement of persons and visas) and the Task Force on Justice and Home Affairs, a small task force created within the Secretariat General. The Directorate General Justice and Home Affairs (now DG Justice, Freedom and Security) was established only in 1999 with the Prodi Commission. 32 On the special position of the UK, Ireland and Denmark vis-à-vis the Schengen acquis, see L.Y. Vakkuri, ‘Building upon the Schengen acquis’, ERA-Forum : scripta iuris europaei, Europäische Rechtsakademie, (Trier, 2000), p. 53, and P.J. Kuijper, ‘Some Legal Problems Associated with Communitarisation of Policy on Visas, Asylum and Immigration under the Amsterdam Treaty and Incorporation of the Schengen Acquis’, Common Market Law Review, (2000): 345.

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to gradually introduce provisions and take measures to align with the obligations deriving from Category II provisions.33 The two-step implementation mechanism of the Schengen acquis, now enshrined in Article 3, paragraphs 1 and 2, of the Act of Accession of the ten Member States having joined the EU on 1st May 2004,34 reflects the procedure followed during the intergovernmental phase of Schengen, when the lifting of border controls could only happen once all the compensatory measures were in place,35 which usually meant that full implementation would take place several years after the signature and ratification of the Convention. Indeed, almost five years elapsed between the signature of the Convention in June 1990 by the ‘founding members’ (France, Germany and the Benelux countries) and its full implementation (on 26 March 2005). As for those Member States joining Schengen at a later stage, the transitional phase between signature and lifting of internal border controls was of seven years for Italy (19901997), of four years for Spain and Portugal (1991-1995), of eight years for Greece (1992-2000), of three years for Austria (1995-1998), and of five years for the Nordic countries (1996-2001).36 Although the implementation in two stages of the Schengen acquis was not explicitly foreseen in the Schengen Protocol, it seemed very soon as the only feasible option. Indeed, imposing the full implementation of the Schengen acquis as of the date of accession would have confronted both the EU37 and the candidate countries with excessive administrative strains and would have delayed the whole accession process. A further complication was the need for evaluating acceding States, in addition to the ordinary pre-accession monitoring, in accordance with the specific Schengen evaluation procedure (see section 2.2). The opposite option, that was the postponement to a later stage of the implementation of the whole of the Schengen 33 For that purpose, all previous and current candidate countries have been requested to draft a Schengen Action Plan, reflecting the two-step Schengen implementation mechanism and thus detailing all the Schengen-related measures (legislative, administrative, operational) they have to take upon accession, as well as those to be taken between accession and full Schengen membership. 34 OJ L 236/2003, p. 33. An identical provision has been included in the Act of Accession of Romania and Bulgaria, signed on 25 April 2005. 35 See Joint Declaration on Article 139 of the Schengen Convention (OJ L 239/2000, p. 55) and Decision SCH/Com-ex(98)26 def. (Ibid., p. 138). 36 The accession of Denmark, Sweden and Finland to the Schengen Convention also led to the association of Norway and Iceland, due to the existence of a Passport Union between the five Nordic countries. To that end, an association agreement has been signed between the Schengen States and Norway and Iceland. Following the integration of the Schengen acquis into the EU, the two Nordic countries are associated to the implementation and development of measures being part of that acquis by means of an agreement concluded on 18 May 1999 by the Council of the EU and Norway and Iceland (see Council decisions 1999/437/EC and 1999/439/EC, both of 17 May 1999, OJ L 176/2000, pp. 31 and 35 respectively). 37 The reference is mainly to the development of the second generation of the Schengen Information System (SIS II), whose completion was foreseen, at the time, by the end of 2005 (the new target date is March 2007).

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acquis would have singled out such acquis and given the impression that, though formally integrated into the EU legal framework, the Schengen acquis remained something different from the ‘normal’ EU acquis in the field of justice and home affairs. The exact determination of the Schengen provisions which should be applied upon accession (Category I) and those to be applied at a later stage (Category II) was made on the basis of a working paper from the Commission services,38 which was discussed within the Enlargement Working Group from July to September 2001. The starting point was to consider the Schengen acquis as an integral and ‘normal’ part of the JHA acquis and thus to make applicable upon accession all those provisions that could actually be applied from that date, and that were not intrinsically linked to the lifting of internal border controls. This would therefore leave out the provisions on the abolition of controls on persons at internal borders, those on the need to separate intra and extra-Schengen flights at airports, and those provisions which could not be applied for technical reasons, such as those related to the Schengen Information System. The final result of the discussions held within the Council reflected, to a great extent, the suggestions put forward by the Commission services in their working paper.39 However, it appeared very clearly that most Member States – especially the Schengen ones – wished to make applicable upon accession most of the provisions related to the security/control aspects of Schengen, while being more reluctant in relation to the provisions facilitating the movement of third-country nationals within the Schengen area.40 2.1.2. Implementing the external borders acquis: ensuring a ‘high level’ of border control This lead to the inclusion in ‘Category I’ of most of the provisions related to external border control,41 whereby new Member States are bound to ensure, upon their accession to the EU and before they become part of the Schengen area, a ‘high 38 This had the status of a ‘non-paper’, distributed as an Information Note to the Enlargement Group on 17 July (Council of the European Union, Document no 10876/01 ELARG 172, of 12 July 2001). 39 The list of Category I and Category II provisions was adopted by Coreper on 26 September 2001 (Council of the European Union, Document no 12148/01ELARG 214, of 25 September 2001) and subsequently transmitted to candidate countries by the Commission. 40 In the Information Note from the Commission services it was stated that it would be possible to include in Category I also Articles 21 and 22 (on movement by holders of a residence permit) as well as Article 23 (expulsion of third-country nationals), and that ‘the application of these provisions would contribute to a better balance between freedom of movement and security’. These provisions were eventually not retained. 41 With the only exception of Article 5.1, point d of the Schengen Convention, related to the obligation of making a search in the SIS as a pre-condition of entry for third-country nationals, for the obvious reason that new Member State do not have access to the SIS until they are ready to fully implement the whole Schengen acquis.

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level of border control’ at all their borders,42 including those between Member States not having yet abolished border controls between them (so-called ‘temporary external borders’). Some candidate countries raised the suggestion of creating a ‘mini Schengen area’ between them in the transitional phase between accession and full Schengen membership.43 However, this option would have been not only in contradiction with the obligations already accepted by the new Member States in the framework of accession negotiations, but would have made them dependent on each other as to when they would be ready to join the Schengen area. Theoretically, each new Member State could join the Schengen area at a different moment and, as a consequence, its border with a neighbouring Member State would become a ‘Schengen external borders’, to be checked in accordance with Schengen standards. This would be quite difficult to ensure if border controls between the concerned neighbouring countries were completely dismantled. If we look at the process and calendar of preparation for joining Schengen (section 2.2) as well as at the predominant attitude in the new Member States, we can note a general tendency to try and avoid the creation of ‘Schengen borders’ between them, and thus a preference of new Member States – especially those having common land borders – for joining the Schengen area en bloc (‘big bang approach’). In relation to the ‘temporary external borders’, the EU Common Positions related to all ten candidate countries stated that ‘specific bilateral arrangements’, taking account of the specific situation at each border section, could be envisaged in order to ‘allow for a smooth transition when internal border controls are lifted, and avoid unnecessary investments’.44 Thus ‘the systematic checks of person crossing the border could be carried out by the border control authorities on each side of the border working in cooperation’; ‘shared infrastructure and removable and/or shared equipment, as well as joint patrols, could also be considered’.45 In November 2003, the Council also adopted conclusions concerning the adoption of flexible land border control measures in the run up to enlargement of the Union46, providing for the possibility of applying the ‘one-stop principle’ at the temporary external borders.47 This principle was later translated in Article 1548 of the Schengen Borders Code, 42 This requirement was included in all the EU Common Positions (EUCP) vis-à-vis the ten candidate countries. See for instance the EUCP on Hungary (CONF – H 56/01 of 28.11.2001, p. 6). 43 The issue was never raised officially by any of the candidate countries but it was discussed informally with the Commission by some of them during 2002. 44 See, for instance, p. 7 of the EUCP on Hungary. 45 Ibid. 46 Council of the European Union, Document no 15013/03 FRONT 164, of 19 November 2003. 47 The ‘one-stop principle’ means that persons only need to stop once to be subject to both the entry and the exit control. Obviously this entails a close cooperation between the border control authorities of the neighbouring countries, and may require juxtaposed control offices etc. This system is currently applied, for instance, at the border between Austria and Hungary and between Austria and the Czech Republic. 48 Article 17 of the final version.

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which authorises Member States to jointly control their common temporary external borders and to conclude agreements for that purpose. It needs to be stressed, however, that the inclusion of the border management chapter in the acquis to be implemented upon accession was not only a ‘burden’ for new Member States imposed by an EU essentially driven by security concerns, but also led to some important positive effects and reforms, such as the progressive ‘de-militarisation’ and professionalisation of the national services responsible for border control, an enhanced coordination of the various Ministries and governmental agencies involved in border control tasks, as well as a decrease in the generally high level of corruption of public officials, including border and customs officers. In other words, the application of the EU border management acquis had a positive impact in all new Member States, to the extent that it led to an improvement of border infrastructures and equipment, as well as to a modernisation of border control procedures, which are both pre-conditions for ensuring a smooth and efficient border crossing. This obviously required major investments from the new Member States, which were accompanied by substantial financing from the EU side, mainly via the PHARE programme: for the period 1997-2003, more than half of the total allocations for the JHA sector (€ 888,5 millions) were devoted to border control and customs (€ 475,5 millions). 2.1.3. Candidate countries and the EU visa acquis It appears necessary to add, in a broader conception of ‘border management’, that also some elements of visa policy were included amongst the provisions to be applied upon accession, namely the obligation to align with the EU visa lists49 and the rules on the uniform visa sticker.50 On the other hand, the provisions related to the conditions, criteria and procedures for issuing the Schengen uniform visa51 were not included in Category I, considering that the new Member States would continue to issue visas with validity limited to their territory until the lifting of internal border controls. The need for new Member States to introduce the visa obligation vis-à-vis most of their Eastern European neighbours has often been seen, in the wide existing scientific literature on the political, economic, social and cultural impact of enlargement on the EU neighbouring countries, as one of the main element leading to a disruption of cross-border relations between new Member States and their neighbours via the creation of a new ‘Berlin wall’ and the building up of a ‘fortress Europe’.52 49 See Council Regulation (EC) No 539/2001 (OJ L 81/2001, p.1), as amended by Council Regulations (EC) No 2414/2002 and No 453/2003 (OJ L 3272001, p. 1, and OJ L 69/2003, p. 10 respectively). 50 Regulation (EC) No 1683/1995 (OJ L 164/1995, p.1) as amended by Council Regulation (EC) No 334/2002 (OJ L 53/2002, p. 7). 51 Such provisions are essentially contained in the Common Consular Instructions on visas for the diplomatic missions and consular posts (published in the OJ C/310). 52 Although it is impossible to give full account of the different approaches and of all issues raised in this context, some interesting readings are the following: G. Amato (chair) and

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It cannot be denied that the introduction of a visa regime towards countries which had previously enjoyed visa-free travel had a big impact on the Eastern neighbours of new Member States. First of all, there is an important psychological element to consider that is the fact of having to ask for a ‘pre-authorisation’ before entering the territory of a neighbouring country, which is often perceived as a step backwards to the times of the Cold War This had obviously political implications in the bilateral relations between new Member States and their neighbours. Moreover, in more practical terms, the introduction of the visa requirement implies that a certain amount of time – and money – needs to be spent at a consulate, which in some cases can be far away from someone place’s of residence. This explains why countries like Poland waited until 1 October 2003 – postponing its commitment to introduce the visa obligation various times – before introducing the visa obligation with Russia, Ukraine and Belarus. If we continue to take the Polish example, we can see, however, that the two-step implementation mechanism of the Schengen acquis allowed Poland to introduce some flexibility in the visa regime introduced with its neighbours. In particular, on the basis of the bilateral agreements Poland concluded with the three above countries, visas are issued at a low cost for Russian and Belarus citizens (for free to all citizens of Ukraine, which in exchange did not require visas for Polish citizens)53 and in several cases they can also be issued at the border. In addition, for several categories of persons, visas are multiple-entry and are issued for up to five years; a maximum processing time for visa applications is also foreseen (five days in normal cases, two in more urgent situations). Last but not least, Poland also made a considerable effort to establish new consular facilities and upgrade the existing ones in the countries concerned.54

J. Batt (rapporteur), The long-term implications of EU enlargement : the nature of the new border, (Florence, 1999); M. Anderson and J. Apap, Police and Justice Cooperation and the new European Borders, (2002); J. Apap and A.Tchorbadjiyska, ‘What about the Neighbours? The Impact of Schengen along the EU’s External Borders’, CEPS Working Document No 210, (2004); J. Batt, ‘The EU New Borderlands’, Centre for European Reform Working Paper, (2003); C. Faria (ed.), Enlarging the Area of Freedom, Security and Justice, (Maastricht, 2003); P. Kazmierkiewicz (ed.), Neighbourhood Across A Divide? Borderland Communities and EU Enlargement, (Warsaw, 2004); J. Monar, ‘The Area of Freedom, Security and Justice after the 2004 Enlargement’, The International Spectator, (2003): 33. 53 The visa-free regime has been extended to all EU citizens on 1 May 2005 as a temporary measure (for three months) and confirmed on 1 September 2005 for an indefinite period. 54 Two new consulates have been established in Ukraine in 2003 (in Lutsk and Odessa). Upon the introduction of the visa obligation with these three countries, Poland also upgraded and modernised (especially in terms of IT equipment) three other existing consulates in Ukraine (Kiev, Charkiv and L’viv), three in Russia (in Moscow, St Petersburg, Kaliningrad; an additional one became operational in Irkutsk as of January 2004) and three in Belarus (Minsk, Grodno and Brest). Sources: Commission of the European Communities, Regular Report on Poland progress towards accession (2002) and Comprehensive Monitoring Report on Poland’s Preparations for Membership (2003); as well as information provided by Poland

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Thus, in the Polish case, although the impact of the visa obligation was certainly felt in the period immediately following its reintroduction, with long queues of people at the consulates, in the longer term, if we consider the high number of visas issued,55 the visa issuing procedures seem to have worked relatively smoothly and thus limited the negative impact of the visa obligation on the flow of people crossing the Polish Eastern border. If we look at the figures on border crossing for the first semester of 2004,56 we can see that, in comparison to the same period in 2003, there is a decrease in the number of people crossing the border but such a decrease is not as dramatic as one could have expected.57 Unsurprisingly, the flow of persons crossing the border with neighbouring Member States has substantially increased.58 The impact of the full Schengen membership on the ‘flexibility’ allowed to new Member States in the relations with their neighbours are examined in section 2.2. 2.2. Joining the Schengen area: procedures and challenges 2.2.1. Calendar and procedures At the end of 2002, under the initiative of the Danish Presidency, the Council adopted a note on the process leading to the implementation and application of the Schengen acquis in full by the new Member States following their accession to the European Union.59 This note laid down the procedure for evaluating the implementation of the Schengen acquis by the new Member States: while the assessment of the correct implementation of Category I provisions would be part of the normal pre-accession monitoring process, the evaluation of Category II provisions would reflect the procedure followed for the previous Schengen evaluations, as detailed in Decision SCH/Com-ex (98) 26 def.60 The above procedure aims at ensuring that all pre-conditions to the lifting of internal border controls – legal, organisational, operational, practical and technical – are fulfilled, and in particular the requirements concerning a functioning Schengen during accession negotiations. The reports can be retrieved from: http://europa.eu.int/comm/ enlargement/index_en.html. 55 In the period from 1 September to 31 December 2003, 360,072 visas have been issued by Polish consulates in Ukraine, Russia and Belarus (source: Polish Ministry of Foreign Affairs). The ‘millionth’ visa seems to have been issued on 10 August 2004, during a ceremony at the Polish consulate in L’viv (Ukraine) (source. ‘Les Echos de Pologne’, www.echo.pl, 10 August 2004). 56 Source: Polish Border Guard Headquarters – Bureau of International Cooperation, December 2003. 57 With Ukraine border traffic decreased of 14,3%, with Belarus of 12,7% and with Russia of 5%. 58 With Slovakia border traffic doubled, with Germany it increased of 37,4%, with the Czech Republic of 14,3% and with Lithuania of 8,1%. 59 Council of the European Union, Document no 15440/02 SCH-EVAL 42, of 10 December 2002. 60 OJ L 239/2000, p. 138.

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Information System and an effective external border control. The evaluation procedure, carried out under the supervision of the Schengen Evaluation Working Group, consists of two phases: a first stage, where an extensive questionnaire is submitted to the Member State concerned, including all areas covered by the Schengen acquis (thus, besides border and visa policy, police co-operation, data protection); a second stage, where a series of monitoring missions on the ground take place (at external borders, in consulates, at police offices etc). The missions aim at assessing the operational aspects of the implementation, and namely whether the necessary resources are in place, whether all rules and procedures are respected, whether training of the border guard personnel is appropriate etc. Experts from other Schengen States, as well as representatives from the Commission and the Council Secretariat participate in the monitoring missions. On the basis of the results of such a comprehensive evaluation, the Council decides then unanimously whether the Member State concerned is ready to lift border controls at its borders with the other Schengen States. A similar procedure exists, also under the control of the Schengen Evaluation Working Group, for the monitoring of the correct implementation of the Schengen acquis by current Schengen States.61 On the basis of the above procedure, as well as of Article 3.2 of the Act of Accession, each of the current Schengen States has therefore the power to veto the participation into Schengen of any new Member State, if it considers that not all conditions are fulfilled and that, in particular, the lifting of border control with that Member State could lead to an increase of illegal immigration or would pose security threats. It is clear that, in this regard, the question of trust between old and new Schengen States has a primary importance and that it will be decisive in determining the speed at which new Member States will join the Schengen area. When adopting the Hague programme in November 2005, the European Council ‘urged’ the Council, the Commission and all Member States ‘to take all necessary measures to allow the abolition of controls at internal borders as soon as possible, provided all requirements to apply the Schengen acquis have been fulfilled and after the Schengen Information System (SIS II) has become operational in 2007’. It added that ‘[i]n order to reach this goal, the evaluation of the implementation of the nonSIS II related acquis should start in the first half of 2006’. According to the indicative timetable for the evaluation of new Member States in view of their participation to Schengen as approved by the Council on 2 June 2005,62 eight of the new Member States will be evaluated on all non-SIS related 61 It is quite clear that this evaluation procedure, a legacy of the intergovernmental past of the Schengen, is far from being an optimal solution in institutional terms now that the Schengen acquis has been integrated into the framework of the EC/EU. Also in terms of effectiveness, this procedure has many shortcomings, being essentially based on a simple peer review mechanism. In this respect, it is worth mentioning that the Hague Action Plan foresees a proposal to be presented in 2007 in order to supplement the existing Schengen evaluation mechanism with a ‘supervisory mechanism’. 62 Council of the European Union, Document no 7638/1/05 REV 1 SCH-EVAL 20, of 22 April 2005.

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provisions during 2006;63 the evaluation of the functioning of the SIS will take place, in principle, during 2007. In relation to external border management, the evaluations should start in April (with the sea borders of Poland and Slovenia) and be concluded in October 2006 (land borders Poland and Slovakia). 2.2.2. Main challenges for the new member states The ability to effectively control the external borders will certainly be one of the main criteria against which new Member States will be assessed and considered (or not) ready to become full Schengen members. This is the reason why, in spite of the legal obligation for new Member States to ensure a ‘high level’ of border control already upon accession, additional funding has been allocated to the new Member States – the so-called ‘Schengen Facility’, enshrined in Article 35 of the Act of Accession64 – in order to further upgrade their border infrastructures, improve training and enhance their border management capacity in general. The Schengen facility provides a total envelope of about € 970 millions, to be allocated to seven of the new Member States in the period between the date of accession and 2006.65 In addition to that, some funding is also available under the ‘Transition facility’ (Article 34 of the Act of Accession)66, aiming at helping new Member States to strengthen their administrative capacity to implement and enforce Community legislation. This financial instrument, although not entirely devoted to the area of justice and home affairs, can be used to finance actions strengthening the judicial system, external border controls, anti-corruption strategy and strengthening of law enforcement capacities). This should provide new Member States with sufficient resources, both technical and human, to ensure that their border is controlled up to Schengen standards while at the same time allowing a smooth crossing of the border for the great majority of travellers who do not pose any kind of threat or problem. In relation to the visa policy, although new Member States could maintain a certain flexibility due to the two-step Schengen implementation mechanism (see section 2.1), when joining the Schengen area they will have to ensure full compliance with the Common Consular Instructions, as they will no longer issue national visas 63 The date of the evaluation is planned following a ‘declaration of readiness’ by the Member State concerned. All new Member States declared to be ready to be evaluated as of 2006 on all non SIS-related provisions, except from Malta and Cyprus. The latter asked to postpone the evaluation of the visa policy to June 2007 and the evaluation of ports and airports to 2009, due to some infrastructure works needed. Malta declared to be ready for the evaluation of its airports and seaports in the first semester of 2007. 64 The allocation of this ‘lump sum’ to acceding States for a period of three years after accession was decided by the European Council of Copenhagen of 12/13 December 2002, on the initiative of the Danish Presidency. 65 The Schengen facility does not apply to the Czech Republic (as it does not have external land borders with third countries), to Malta and Cyprus (as they considered this additional funding not necessary to manage their borders). 66 The total commitment appropriations foreseen in the Act of Accession are (in 1999 prices): € 200 million in 2004, € 120 million in 2005 and € 60 million in 2006.

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but Schengen ones, valid for the territory of all Schengen States. This implies that, for example, visas at the border can be issued only in very exceptional cases and that, as a general rule, a thorough assessment of supporting documents as well as a personal interview of the applicant, should be carried out by the consular authorities; in some cases, the consultation of other Schengen countries is required before issuing a visa, which would make the processing of visa applications in just a couple of days impossible. As regards visa fee, a flat rate (currently 35 €) will have to be applied; the current acquis foresees a possibility of reducing or waiving them only in individual cases. Does this mean that the full participation into Schengen will almost inevitably lead, as argued by many, to the creation of a new kind of wall at the borders of Europe? As discussed in section 3, this is certainly not the objective of the EU nor the inevitable consequence of its policies in the field of justice, freedom and security. 3. Managing the External Border of an Enlarged EU: Finding the Balance between Control and Openness So far we have examined the influence of the EU border and visa policy in the accession process, as well as their impact in the relations with EU neighbours, essentially from the perspective of the development of the EU as an ‘area of freedom, security and justice’, with a particular stress on the ‘security’ element. Indeed, it has to be recognised that, in the first stages of JHA accession negotiations with the ten new Member States, the EU’s main concern has been how best to ‘preserve’ the acquis, ensuring that enlargement to ten (and more) new Member States would not jeopardise the effective implementation of the JHA acquis and would not create any security loopholes. This was particularly the case in relation to the Schengen acquis, whose full implementation – implying the abolition of internal border controls between Member States – did not only require legislative alignment or changes in administrative practices but also a high degree of trust between the countries participating into it. However, the EU slowly realised – some argued too slowly67 – that a global and comprehensive strategy needed to be developed in order to address the overall impact of EU enlargement on the EU’s closest neighbours, including the consequences of extending the Schengen area to the new Member States. Arguably, this was also due to the growing demand of acceding States to have some more influence in the shaping of EU policies, especially those affecting them more directly, in order to take account of their interests.68 67 See J. Batt, ‘The EU New Borderlands’. 68 Poland, in particular, submitted a paper to the Council in January 2003 highlighting the need for the EU to enhance the relations with its Eastern neighbours, while acknowledging that developing cooperation with Eastern European States should be gradual and conditional to continuous progress in complying with democratic criteria and human rights. Poland suggested that this cooperation be supported by relevant assistance programmes. On this

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The first step in that direction was the 2003 Commission Communication on ‘Wider Europe’69, which laid down the basis for what would afterwards be named the ‘European Neighbourhood Policy’ (ENP).70 The basic aim of this policy is to avoid the emergence of new dividing lines between the enlarged EU and its neighbours (in particular, Eastern and Southern ones)71 and to establish with the latter – which do not have an immediate membership perspective72 – a close political, security, economic and cultural co-operation. If we look at the JHA part of the ENP, both in the Strategy Paper and in the Action Plans established with the various countries involved,73 we can see that border management is one of the priority issues for closer co-operation, which include actions to improve efficiency of border management (by supporting the creation and training of professional and non-military border guards) and measures to make travel documents more secure. On the ‘facilitation’

issue, see P. Kowal (ed.), ‘The EU’s ‘Eastern Dimension’ – An Opportunity for or Idée Fixe of Poland’s Policy?’, Warsaw Centre for International Relations, Working Paper, (2002). 69 Commission of the European Communities, Wider Europe-Neighbourhood: A New Framework for Relations with our Eastern and Southern Neighbours, COM(2003) 104, (Brussels, 11 March 2003). This was accompanied few months later by a Commission Communication on the financial support linked to this policy, Paving the Way for a New Neighbourhood Instrument, COM(2003)393, (Brussels, 1 July 2003). 70 Commission of the European Communities, European Neighbourhood Policy – Strategy Paper, COM (2004)373, (Brussels, 12 May 2004). A proposal for an ENP financial instrument is currently under discussion (COM (2004)628 final of 29 June), to cover overall funding for the ENP, while replacing existing geographical and thematic programmes, under the financial perspectives 2007-2013. For further details on the ENP, see the website of DG for External Relations: http://europa.eu.int/comm/world/enp/index_en.htm. See also: L. Beurdeley, ‘L’ Union européenne et ses périphéries: entre intégration et nouvelle politique de voisinage’, Revue du Marché commun et de l’Union européenne, n° 492, October-November, (2005): 567. 71 The geographical coverage of the ENP currently covers the following EU Eastern neighbours: Ukraine, Belarus and Moldova; the following Southern Caucasus countries: Georgia, Armenia, and Azerbaijan; and the following countries on the southern and eastern shores of the Mediterranean: Morocco, Algeria, Tunisia, Egypt, Israel, Jordan, Lebanon, Syria, as well as the Palestinian Authority. Libya could also be included in the future, subject to positive evolutions of the overall bilateral relations between this country and the EU. As regards Russia, which was included in the initial Commission 2003 Communication and that will benefit from the ENP funding, bilateral relations will be further pursued and strengthened in the framework of the four ‘common spaces’ – including the common space on the area of freedom, security and justice – as defined in the 2003 Saint Petersburg Summit (see footnote 82). 72 This is the reason why candidate countries (Croatia and Turkey) and the Western Balkan countries, which have a potential for EU membership in the short/medium term, are not included under the ENP. 73 Actions plan have been established so far with Israel, Jordan, Moldova, Morocco, the Palestinian Authority, Tunisia and Ukraine and are under preparation with Egypt, Lebanon, Armenia, Azerbaijan and Georgia.

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side, the main initiatives mentioned relate to measures on ‘local border traffic’ and the perspectives of ‘visa facilitation’. These two latter initiatives will be briefly examined, as they show that it is indeed possible to foresee some flexibility in the implementation of the Schengen acquis, and in particular of borders and visa policies, without undermining the coherence of the policies themselves and without threatening the ‘area of freedom, security and justice’. In relation to local border traffic, i.e. the crossing of the external border by persons living in the border region of a neighbouring country and who have legitimate reasons to cross that border very frequently (for example for family, economic, social or cultural reasons), the Commission put forward a proposal74 with the aim of striking a balance between, on the one hand, the facilitation of border crossing for bona fide border residents and, on the other hand, the need to prevent illegal immigration as well as potential threats to security posed by criminal activities. The Commission proposal suggested, inter alia, to create a special type of multiple-entry visa for the purpose of local border traffic, and to provide some practical facilitation such as the setting up of specific border crossing points or the possibility for border residents, in exceptional cases, to cross the border outside authorised border crossing points and fixed hours. Discussions on this issue have been difficult since the very beginning,75 as several of the ‘old’ Member States tended to consider the question solely in terms of security, seeming to forget that some of them had applied such regimes at their borders for many years without any particular problem.76 However, as a consequence of the enlargement of the EU to new Member State – most of them directly concerned by this question, because of the intense cross-border movements at the frontier with their Eastern neighbours77 – attitudes within the Council slowly changed and there seems to be now more willingness to find a balanced solution reconciling the need for some flexibility with security concerns.78 Apart from the increasing influence of new Member States in decision-shaping at EU level, this change of approach is, 74 Commission of the European Communities, Proposal for a Regulation of the European Parliament and of the Council laying down rules on local border traffic at the external land borders of the Member States and amending the Schengen Convention and the Common Consular Instructions, COM (2005)56, (Brussels, 23 February 2005). 75 The Commission put forward its first proposals on local border traffic already in 2003 (see COM(2003) 502, 14 August 2003); however, they were subsequently withdrawn – simultaneously to the adoption of the 2005 one – due to a change of the legal basis and of the procedure for adopting them. 76 An overview of bilateral agreements on local border traffic is annexed to the Commission Staff Working Paper Developing the Acquis on Local Border Traffic, SEC(2002) 947, (Brussels, 9 September 2002). 77 See Kazmierkiewicz, Neighbourhood Across A Divide? Borderland Communities and EU Enlargement. 78 At the time of writing, both the Council and the EP expressed their willingness to work at a first-reading agreement on the draft Regulation on local border traffic, which means

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quite likely, also linked to the shift to codecision in the field of border controls,79 which not only enhanced the role and influence of the EP in this area, but entailed qualified majority voting within the Council. This obviously means that Member States do no longer have the power to block decisions in this area, as it happened in the past, and that each of them is now obliged to make concessions on one or the other aspect. The issue of visa facilitation is something relatively new in the history of EU visa policy, since the agreement recently reached with Russia on this issue, in parallel with the conclusion of a readmission agreement,80 is the very first one concluded at Community level with a third country and is the result of some years of intense lobbying from the Russian side in order to ‘minimise’ the effects of EU enlargement on the movement of its nationals into EU Member States. Once the Kaliningrad issue – and in particular, the problem linked to the transit of Russian nationals from Kaliningrad to mainland Russia and vice-versa via the territory of some of the new Member States81 – was solved, thanks to the creation of a special transit regime,82 Russia started to make pressure to obtain a visa-free regime, or at least a facilitated regime, for all its nationals.83 The agreement initialled in October 2005 provides

that political agreement between the two co-legislators on the issue could be reached by the end of 2005. 79 This was the consequence of the entry into force of Decision 2004/927/EC (for a full reference see footnote 23). 80 The two bilateral agreements on visa facilitation and readmission were initialled on 12 October 2005 in Luxembourg in the margins of the EU-Russia Permanent Partnership Council (JHA). They await formal signature from both parties and ratification (from the Russian side only) prior to their entry into force. 81 On the Kaliningrad question in general, see : R. Cholewinski and E. Slavenas, ‘Foreign Policy Implications of the EU Justice and Home Affairs Acquis: the Case of the Baltic States’ in M. Anderson and J. Apap, Police and Justice Cooperation and the new European Borders, p. 103; R. Yakemtchouk, ‘L’Union européenne et Kaliningrad’, Revue du Marché Commun et de l’Union européenne, (2003): 160. 82 See the Joint Statement on Transit between the Kaliningrad Region and the Rest of the Russian federation, agreed at the Brussels EU-Russia Summit of 11 November 2002, as well as Council Regulations (EC) No 693/2003 and No 694/2003 establishing a specific Facilitated Transit Document (FTD), a Facilitated Rail Transit Document (FRTD) and defining uniform formats for those documents (OJ L 99/2003, pp. 8 and 15 respectively). 83 See, in particular: the Joint Statement agreed at the EU-Russia Russia Summit of 1 May 2003, where the EU and Russia ‘agreed to examine the conditions for visa-free travel as a long term perspective’, to ‘conclude timely the negotiations on a readmission agreement’ and to promote ‘the better use of existing flexibilities in the Schengen agreement’. At the following EU-Russia Summit (6 November 2003), the parties agreed ‘to take forward work to create a common space of freedom, security and justice’ and ‘welcomed the recent [in October 2003] meeting of [visa] experts’, ‘to examine conditions for visa-free travel as a long-term perspective and to look at existing flexibilities within the Schengen agreement, in order to facilitate travel in the short term and on a reciprocal basis’. Formal negotiations

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for the possibility, for specific categories of persons,84 of reducing the documentary evidence required to prove the purpose of entry, of issuing multiple entry visa (with a validity of up to five years), of waiving the visa fees, and of reducing the time needed to process visa applications (ten days in normal cases). Following the Russian example, several other third-countries are now asking to negotiate a similar agreement with the EU. The next country with which the EU is likely to negotiate is Ukraine, on the basis of a negotiating mandate recently adopted by the Council;85 the Western Balkan countries, as well as Turkey, might be the next ones. It has to be mentioned that, however, the question of visa facilitation, which is certainly a factor of ‘openness’ towards third countries, is being linked to an element of ‘control’, that is the conclusion of readmission agreements. Indeed, in the Hague Programme (see section 1), the European Council invited the Council and the Commission ‘to examine, with a view to developing a common approach, whether in the context of EC readmission policy it would be opportune to facilitate, on a case by case basis, the issuance of short-stay visas to third country nationals, where possible and on the basis of reciprocity, as part of a real partnership in external relations, including migration-related issues’. It is clear that here the perspective is much narrower, in the sense that visa facilitation is seen as one of the possible ‘carrots’ to convince third countries to conclude a readmission agreement with the EU. The establishment of such a link, however, also means that it will be quite difficult in the future to conclude a readmission agreement – which is essentially in the EU’s interest, to better control migratory flows directed to its territory – without granting any kind of facilitation in terms of access to the EU territory for certain categories of nationals of the third country concerned. If there is a continuous tension within the EU between policies of ‘openness’ and policies of ‘control’ vis-à-vis third countries, it has to be recognised that there is nevertheless an effort from the EU side – even in an environment strongly influenced by security concerns, such as the post-9/11 world – to reconcile these two aspects when developing and implementing the area of freedom, security and justice. This particularly concerns the relations with the EU closest neighbours, as there is a growing awareness that policies limited to the ‘control’ aspect are, in the long term, counterproductive, and that cooperation with the third countries concerned on a variety of JHA issues (border management, fight against cross-border crime and terrorism) is far more effective in preventing threats to the security of the EU. As stressed in the recently adopted Commission Communication on A Strategy on the with Russia on a visa-free agreement were officially open on 20 October 2004 and have been conducted in parallel with negotiations on the readmission agreement. 84 Such categories include, inter alia: members of official delegations, business people, international lorry drivers, crew of international trains, students, participants in international sport events or in scientific, cultural and artistic activities. 85 The mandate to negotiate a visa facilitation agreement has been adopted by the General Affairs Council on 9 November 2005. Negotiations on a readmission agreement are already on-going.

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External Dimension of the Area of Freedom, Security and Justice, ‘the successful establishment of the internal area of freedom, security and justice’ also depends on a secure and stable external environment and can only be ensured by engaging in dialogue and cooperation with third countries worldwide and by ‘sharing and promoting [with them] the values of freedom, security and justice’.86

86 Commission of the European Communities, Communication on A Strategy on the External Dimension of the Area of Freedom, Security and Justice, COM (2005) 491, (Brussels, 12 October 2005).

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Chapter 11

The Outsiders: The European Neighbourhood Policy Karen E. Smith1*

1. Introduction In May 2004 the European Union acquired not just ten new member states but also several new neighbours. At about the same time, it began to flesh out a ‘European neighbourhood policy’, to bring some order to the EU’s relations with its old and new neighbours and ensure that the newly enlarged Union would be surrounded by a ‘ring of friends’. The European neighbourhood policy (ENP) does not resolve the basic dilemma facing the EU – how large should it become? – but it does provide the EU with additional tools for fostering friendly neighbours. The challenges associated with the neighbourhood are daunting, however, and it is not clear either that the extra tools are sufficient or that they will be used effectively to promote fundamental political and economic reform in the neighbours and to tackle the perceived problems posed by their geographical proximity to the enlarged EU. Ever since the end of the Cold War, the EU has faced the essential dilemma of where its final borders should be set. According to the Treaty of Rome (truly of a different era), any European country can join the EU. But when the geographical definition of ‘Europe’ has become as fuzzy as it now is, setting limits to EU membership is consequently problematic. Inclusion means bridging the old Cold War divide and uniting a continent, but could end up shredding the carefully woven fabric of the Union itself. Exclusion means isolating countries that can ill afford isolation, and making a mockery of the very term ‘European union’. The history of post-Cold War relations between the EU and its non-EU European neighbours can be read largely as a history of the EU coping with the exclusion/inclusion dilemma by eventually choosing inclusion. After enlarging to include three west European countries in 1995, the EU promised inclusion to twelve more applicant countries but threatened (temporary) exclusion if they did not meet the EU’s membership conditions. In 2004 a ‘big bang’ enlargement ended up excluding very few applicants indeed. Inclusion won out over exclusion. *Many thanks to S. Trzeciak for his research assistance for this article, and to the Chatham House study group, R. Whitman and F. Bicchi for their useful comments on an early draft of it. This article previously appeared in International Affairs, 81, no. 4 (2005), pp. 757-773. I would like to thank the Editors for the permission granted to reprint it here.

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The story does not end there, of course: the queue of candidates, and potential candidates, just keeps on growing. The EU has an inclusive position on eight of them: Bulgaria and Romania can join in 2007; Croatia and Turkey could begin membership negotiations in 2005; the remaining countries of the ‘western Balkans’ (Albania, Bosnia and Herzegovina, the Former Yugoslav Republic of Macedonia, and Serbia-Montenegro – which might, of course, break up into its two constituent parts plus Kosovo) have been promised membership when they meet the conditions. But even an EU of 33 (or 35) member states still leaves out other ‘European’ countries, notably in the rest of the former Soviet Union, several of which have declared their wish to join. And here the inclusion/exclusion dilemma is still unresolved. Until quite recently, relations with those outsiders to the east – with the possible exception of Russia – were not a major priority for EU policy. The 2004 enlargement, however, brought the EU closer to them, and thus created an immediate need to ensure that the wider neighbourhood was stable, to avoid the risk of instability spilling over into the larger EU. As Christopher Hill has argued, the extension of the EU’s border is ‘the most important of all the foreign policy implications of enlargement’.1 It creates new dividing lines between insiders and outsiders, lines which themselves create formidable problems for the countries on either side of them, as the European Commission has noted: ‘Existing differences in living standards across the Union’s borders with its neighbours may be accentuated as a result of faster growth in the new Member States than in their external neighbours; common challenges in fields such as the environment, public health, and the prevention of and fight against organized crime will have to be addressed; efficient and secure border management will be essential both to protect our shared borders and to facilitate legitimate trade and passage.’2

Furthermore, ‘enlargement fatigue’ was setting in and the EU wanted to stave off yet another round of enlargement. The ENP was launched to address all of these challenges. The ENP also embraces the countries of the southern Mediterranean, though the dividing line between the EU and these countries has not shifted very far with the 2004 enlargement, and the problems posed by those borders have long been a concern. The southern Mediterranean countries were included in the ENP to balance 1 C. Hill, ‘The geopolitical implications of enlargement’, in J. Zielonka, (ed.), Europe unbound: enlarging and reshaping the boundaries of the European Union (London, 2002), p. 97. 2 European Commission, Paving the way for a new neighbourhood instrument, COM (2003) 393, (1 July 2003), p. 4. Most notably, enlargement means the eventual extension of the Schengen rules, which create a ‘hard’ border. In particular, the new member states must impose visa requirements on nationals from neighbouring countries. H. Grabbe notes that ‘erecting Schengen borders with difficult neighbours like Ukraine, Kaliningrad (part of Russia) and Croatia could upset delicately balanced relationships and stall cross-border economic integration’: Heather Grabbe, ‘The sharp edges of Europe: extending Schengen eastwards’, International Affairs 76: 3, (2000): 528.

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the EU’s southern and eastern ‘dimensions’ (and thus respond to concerns of southern member and non-member states), though given many of the ENP’s objectives this is in any case arguably rather logical. The two dimensions inside the ENP, however, make awkward bedfellows, especially given that the east European countries are (reluctantly) seen as potential member states, while the Mediterranean countries have not been considered eligible for EU membership. This article first traces briefly the history of the ENP and compares it to previous attempts to offer neighbours some kind of association with the EU that falls short of actual membership. It then analyses the substance of the ENP. The last part asks whether the ENP provides the appropriate framework for dealing with major challenges facing the EU in its relations with the neighbours. 2. History of the ENP The origins of the ENP date only to early 2002, when the UK in particular pushed for a substantive ‘wider Europe’ initiative3, to be aimed at Belarus, Moldova, Russia and Ukraine, but not the south-east European countries (already involved in the stabilization and association process) or the more distant western former Soviet republics, Armenia, Azerbaijan and Georgia. In December 2002 the Copenhagen European Council approved the idea, but included the southern Mediterranean countries in the initiative, on the insistence of southern member states. In June 2004, after lobbying by the Caucasian republics (and a peaceful ‘rose revolution’ in Georgia), the Council extended it still further to Armenia, Azerbaijan and Georgia. Russia has declined participation, preferring to develop cooperation with the EU on a more ‘equal’ basis, developing four ‘common spaces’ (economic; freedom, security and justice; external security; and research and education). The 16 participants in ENP are listed in table 1. The ENP stretches over a very large geographical area, and encompasses a wide diversity of countries. It also supplements, though it does not replace, other frameworks for relations with the Union’s neighbours: the Euro-Mediterranean partnership (and related Euro-Mediterranean agreements and the MEDA assistance programme which is the principal financial instrument of the EU for the implementation of the Euro-Mediterranean partnership), and the Partnership and Cooperation Agreements (PCAs) and TACIS assistance programme with the former Soviet republics. Two ENP countries, Belarus and Libya, are not formally linked to the EU by an agreement and have in fact been the subject of EU sanctions. The self-exclusion of Russia relieves some awkward problems and poses new ones. Arguably relations with this very large and rather touchy neighbour are on a different plane from those with the other countries. But Russia’s relations with 3 The name of the initiative has been changed as many times as the list of neighbours included in it: from ‘wider Europe’ to ‘proximity policy’ to ‘new neighbourhood policy’, and finally to ‘European neighbourhood policy’. The ratification process was then frozen due to the lack of democracy in Belarus.

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its ‘near abroad’ are particularly sensitive, and the absence of Russia from the framework that is supposed to address difficult cross-border issues leaves a large hole in the middle of the policy. Russia was also the one eastern neighbour that the EU could confidently exclude from potential membership, which means the ENP is now even more starkly an attempt to handle the membership aspirations of east European states. The pursuit of closer relations with those states also risks upsetting the EU’s relations with Russia, yet these two sets of relationships will now be addressed in different frameworks. Table 1: ENP partners and their current contractual links with the EU Country

Agreement and date

Algeria Armenia Azerbaijan Belarus Egypt Georgia Israel Jordan Lebanon Libya Moldova Morocco Palestinian Authority Syria Tunisia Ukraine

Euro-Med association agreement signed, April 2002 Partnership and Cooperation agreement in force, July 1999 Partnership and Cooperation agreement in force, July 1999 Partnership and Cooperation agreement signed, March 1995 Euro-Med association agreement in force, June 2004 Partnership and Cooperation agreement in force, July 1999 Euro-Med association agreement in force, June 2000 Euro-Med association agreement in force, May 2002 Euro-Med association agreement signed, April 2002 none in force Partnership and Cooperation agreement in force, July 1998 Euro-Med association agreement in force, March 2000 Interim Euro-Med association agreement in force, July 1997 Euro-Med association agreement signed, October 2004 Euro-Med association agreement in force, March 1998 Partnership and Cooperation agreement in force, March 1998

The importance of the neighbourhood for EU policy-making has been reiterated at the highest levels. The December 2003 European Security Strategy declared that ‘building security in our neighbourhood’ is one of three strategic objectives for the EU: ‘Our task is to promote a ring of well governed countries to the East of the European Union and on the borders of the Mediterranean with whom we can enjoy close and cooperative relations.’4 The draft constitutional treaty contains an entirely new provision, article I-57 on the ‘Union and its neighbours’. According to this, the Union ‘shall’ develop special relationship with neighbouring countries, ‘aiming to establish an area of prosperity and good neighbourliness’, and may conclude specific

4 European Council, A secure Europe in a better world: European Security Strategy, (Brussels, 12 December 2003), p. 8.

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agreements with them. This marks out the neighbourhood policy as a special – and separate – area for external policy-making, and the neighbours as special partners.5 The ENP is not the first ever attempt by the EU to design a strategy for relating to European neighbours without letting them in. In 1989 the European Community tried to postpone membership applications from European Free Trade Area member countries (‘EFTAns’), by creating the European Economic Area (EEA). The EEA extends the single European market to the EFTAns, but not formal participation in the relevant law-making process. Some EFTAns (Austria, Finland, Sweden) were not satisfied with this early policy of ‘all but institutions’, and chose to join the EU in 1995; many of the rest are considering the possibility of fully joining the EU one day. Other proposals were less successful. In January 1990 the French President, François Mitterrand, called for a European Confederation linking all European states. The proposal went nowhere and was replaced by a concentric circles policy, which offered special ‘Europe’ association agreements to the Central and East European countries in an attempt to distract them from their membership demands. In April 1991 Commissioner Frans Andriessen suggested that the Community create an affiliate membership category. Affiliate members would have ‘a seat at the Council table on a par with full members in specified areas, together with appropriate representation in other institutions, such as the Parliament’.6 The ‘specified areas’ were foreign policy, monetary affairs, transport, environment, research and energy. The affiliate membership idea also went nowhere, dismissed as unworkable by many within the Community and as an unacceptable offer of ‘second-class’ membership by the Central and East European countries. In June 1992 the Commission suggested creating a ‘European Political Area’, within which European leaders would meet regularly, and Central and East European countries could be associated with specific EC policies and participate in meetings on trans-European issues. The June 1993 Copenhagen European Council transformed the idea into the ‘structured relationship’, a framework for discussions on all areas of EU business with the Central and East European countries – but this was after those countries had been told that they could apply for EU membership. Cooperation would prepare them for membership, not keep them on the outside. There was nonetheless considerable frustration with the structured relationship, and in 1997 it was replaced halfheartedly by the ‘European Conference’.

5 Since the early 1990s the growing importance of the EU’s ‘periphery’ has been obvious. In addition to enlargement and the Euro-Mediterranean partnership, this is evident in the June 1992 agreement by foreign ministers that there were three priority areas for CFSP Joint Actions, all neighbouring regions (Central and Eastern Europe; the Mediterranean; the Middle East); in the first (and only) CFSP Common Strategies being directed at neighbours (Russia, Ukraine and the Mediterranean); and in neighbours having become the EU’s top aid recipients. 6 F. Andriessen, Towards a Community of twenty-four, speech to the 69th Plenary Assembly of Eurochambers, Brussels, 19 April 1991, Rapid Database Speech/91/41.

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The European Conference was created in December 1997 by the Luxembourg European Council as a means of linking the EU and the then 13 applicant countries, above all Turkey. The EU had just launched the ‘accession process’ with twelve of the applicants, and the European Conference was an attempt to maintain relations with Turkey, which, much to its dismay, was not included in the accession process. The European Conference entailed periodic meetings of the heads of state or government, or foreign ministers, to discuss foreign policy problems and issues such as immigration or transnational crime. Turkey in fact refused to participate in it for several years. An early stab at a European neighbourhood policy took the form of a boost to the European Conference. In June 2001 the Göteborg European Council suggested inviting Moldova and Ukraine to the next meeting. In October 2001 the European Conference was expanded to 40 participants, including EFTAns, the south-east European countries, Moldova, Russia and Ukraine. But it has never been anything more than a large and unwieldy talking shop: with no decision-making capacity, it not only offers neighbours little of substance but also has never produced much of substance itself. All of these schemes have two things in common: they involved regular meetings at high levels on political issues; and they did not set up decision making frameworks, but at best frameworks for consultation. Given extensive interdependence in Europe, regular consultation is certainly desirable. But concrete benefits for participants were few: after all, many of the non-EU countries to which these schemes were offered were – or were about to become – full members (with voting rights) in other, wider European organizations that discuss political issues: the Council of Europe, the Organization for Security and Cooperation in Europe, even NATO. The EU schemes did not represent an example of ‘effective multilateralism’, a core strategic objective for EU foreign policy in the 2003 European Security Strategy.7 Separate from the above schemes is the Euro-Mediterranean partnership, launched in 1995 in Barcelona. This combines bilateralism (the conclusion of Euro-Med agreements with individual countries), multilateralism (regular meetings among the partners, at many levels and on numerous issues) and EU encouragement for regionalism (such as the formation of a Mediterranean free trade area). It was not designed principally to stall enlargement or mollify disappointed membership candidates, since most of the partners have not been considered potential EU members (with the exception of Cyprus, Malta and – eventually – Turkey), but was

7 ‘Effective multilateralism’ in the Security Strategy seems to imply making international organizations and agreements more effective. Another definition can be found in the academic literature. J. Ruggie has argued that multilateralism is an institutional form that coordinates relations among three or more states on the basis of generalized principles of conduct, and that successful cases of multilateralism generate expectations of diffuse reciprocity among the members (that is, aggregate benefits are equal over time). See J. G. Ruggie, ‘Multilateralism: the anatomy of an institution’, International Organization 46: 3, (1992).

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seen as a way to foster conflict resolution and, to a lesser extent, domestic reform in the southern neighbours. The ENP departs from these precedents in that it does not set up an overarching framework or conference that entails regular meetings of all the neighbours at any level. The EU has jettisoned a grand, multilateral approach in favour of bilateralism: the ENP concentrates on developing bilateral relations between the EU and individual countries, in an attempt to influence their internal and external policies. Change in the direction desired by the EU is seen to be more likely to come about by the use of EU leverage on its neighbours separately rather than in multilateral discussions. Will this different strategy be longer-lasting and more effective than previous attempts to deal with the neighbours? 3. The Content of the ENP In December 2002 the Commission President, Romano Prodi, declared: ‘We have to be prepared to offer more than partnership and less than membership, without precluding the latter.’8 In March 2003 the Commission specified that the neighbours ‘should be offered the prospect of a stake in the EU’s Internal Market’.9 The EU will offer ‘all but institutions’ to the neighbours: as much as it can do without actually enlarging. Increased economic integration and closer political cooperation will be conditional. Clear benchmarks, set out in action plans, will spell out ‘the actions the EU expects of its partners’, and will be used to evaluate progress towards reform. New benefits will be offered only to reflect progress made.10 In early 2004 the Commission began preparing action plans for the most advanced neighbours. The ENP is primarily an attempt to create good neighbours: namely, the kind who conforms not only to ‘EU values’ generally speaking, but also to EU standards and laws in specific economic and social areas. The process of growing closer to the EU by ‘approximating’ its values and standards is expected to help increase prosperity and security in the neighbourhood, though observers have questioned whether the acquis communautaire is an appropriate framework for countries struggling with basic economic reforms.11 A secondary aspect of the ENP is to prevent the emergence of new dividing lines, through a variety of means including more crossborder cooperation.

8 Romano Prodi, A wider Europe: a proximity policy as the key to stability, speech to the Sixth ECSAWorld Conference, (Brussels, 5-6 Dec. 2002), SPEECH/02/619, p. 3. 9 European Commission, Wider Europe – neighbourhood: a new framework for relations with our eastern and southern neighbours, COM (2003) 104 final, (Brussels, 11 March 2003), p. 4. 10 European Commission, Wider Europe – neighbourhood, p. 16. 11 See J. Batt, ‘The EU’s new borderlands’, Centre for European Reform Working Paper (London, Oct. 2003), pp. 34-5.

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In the action plans the EU will set out the values and standards that the neighbours should adopt, with detailed objectives and ‘precise’ priorities for action.12 These are not new legal agreements; the PCAs and Euro-Med agreements will remain the key framework for bilateral relations. They are supposed to be differentiated according to the various neighbours’ specific circumstances, and drawn up after talks held with each neighbour. Promoting ‘joint ownership’ of the plans should better ensure that the neighbours will meet the objectives set out in them. EU aid will support their implementation. Progress in meeting the objectives is to be monitored in the association or partnership councils established by the existing agreements, and the Commission will issue regular progress reports. On the basis of those reports, the EU could decide to offer a neighbour a more wide-ranging contractual framework, a ‘European Neighbourhood Agreement’ (the content and scope of which has yet to be defined).13 In December 2004 the Commission published draft action plans for seven countries that already had agreements with the EU in force: Israel, Jordan, Moldova, Morocco, the Palestinian Authority, Tunisia and Ukraine.14 Although the PCAs with Armenia, Azerbaijan and Georgia have already entered into force, these countries were included in the ENP at a relatively late stage so their action plans were delayed. Euro-Med agreements with Egypt and Lebanon entered into force in 2004, so they will be next in the queue for action plans. According to the Council, ‘action plans should be comprehensive but at the same time identify clearly a limited number of key priorities and offer real incentives for reform’. 15 The draft action plans are certainly comprehensive, containing very long lists of ‘priorities for action’ (for example, in the case of Ukraine, there are almost 300 such priorities; in the case of the Palestinian Authority, almost 100) across a wide variety of issue areas from political cooperation to implementing single market legislation.16 The most important priorities are listed at the start of each action plan (14 in the case of Ukraine, eight in the case of the Palestinian Authority); nonetheless the sheer number of ‘things to do’ is striking. Significantly, the benefits on offer from the ENP are only vaguely summarized at the start of the action plans, and they are not directly connected to fulfillment of the huge number of objectives or even the

12 The action plans are cross-pillar, containing political and economic objectives relating to issues spanning all three pillars; in writing them, the Commission has to coordinate with member states, presidencies and the CFSP High Representative. 13 European Commission, Communication on the Commission proposals for action plans under the European Neighbourhood Policy (ENP), COM (2004) 795, (9 December 2004); and European Neighbourhood Policy strategy paper, COM (2004) 373, (12 May 2004). 14 They are available on the European Commission’s ENP website: http://europa.eu.int/ comm/world/ enp/document_en.htm (accessed 28 Jan. 2005). 15 General Affairs and External Relations Council, European Neighbourhood Policy – Council conclusions, 14 June 2004, press release 10189/04 (presse 195). 16 The ENP action plans thus resemble other EU initiatives: the Common Strategies, for example, were criticized for simply listing, and not prioritizing, numerous policy objectives.

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most important priorities. It is hard to see how these action plans provide a ‘real incentive for reform’. Assessing each neighbour’s progress in taking the actions laid out is less than straightforward, for three reasons. First, sometimes it is not clear who (the EU or the neighbour) is supposed to be carrying out the action. For example, in the action plan for Ukraine, the exhortation to ‘develop possibilities for enhanced EU-Ukraine consultations on crisis management’ presumably applies to both sides. But who is to ‘undertake first assessment of the impact of EU enlargement on trade between the EU and Ukraine during 2005 and regularly thereafter as appropriate’? Second, even when it is clear that the neighbour should be taking the action, it is not always equally clear how progress will be judged. Scattered throughout many action plans is much about how neighbours must ‘enhance institutional or administrative capacity’ in particular areas. What that entails is not specified. Third, no time span for meeting particular objectives is given. The action plans are for three years, but it is not clear how many of the myriad priorities are to be met within that time frame, or to what extent. Clear benchmarks these are not. The action plans are striking for at least two other reasons. The first is the prominence within them of political objectives, including – most notably – respect for specific human rights and democratic principles. Insistence upon these could herald a new era in the EU’s relations with its Mediterranean neighbours in particular, in which human rights and democracy have not been usually important aspects.17 This seems to reflect the new Zeitgeist, apparent also in the US administration’s greater Middle East initiative and the current discourse about spreading democracy in the region. But pressing governments to implement democratic reforms is extremely difficult if those same governments view such reforms as threatening their own hold on power. Whether the EU is offering enough to entice them to do so is debatable, but surely the imprecise way in which incentives have been set out in the action plans is not a helpful start. Other political objectives prominent in the action plans are cooperation in the fight against terrorism and on non-proliferation of weapons of mass destruction,18 and ensuring international justice through support for the International Criminal Court. Their inclusion highlights not only the cross-pillar nature of the ENP, but also

17 See R. Youngs, The European Union and the promotion of democracy: Europe’s Mediterranean and Asian policies (Oxford, 2001); S. Panebianco, ‘Constraints to the EU as a “norm exporter” in the Mediterranean’, CFSP Forum 2, (2004), retrieved from www. fornet.info; and the revealingly titled European Commission communication, Reinvigorating EU actions on human rights and democratization with Mediterranean partners: strategic guidelines, COM (2003) 294, (Brussels, 21 May 2003). 18 In fact, the EU’s insistence on including this objective caused tensions with Israel (which possesses nuclear weapons), and a delay even in the publication of the action plan. K. Diab, ‘Commission wants closer EU-Israeli ties’, European Voice, (16 December 2004–12 January 2005).

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the increased prominence of political objectives – including those relating to the EU’s internal security agenda19 – in the EU’s external policies. The second striking aspect of the action plans is that, with one exception, they reflect a rather ample dose of EU self-interest. For example, four action plans, those with Moldova, Morocco, Tunisia and Ukraine, insist that the neighbours must conclude readmission agreements with the EU.20 In another example, Ukraine’s action plan contains the objective: ‘continue consultations on the possible EU use of Ukraine’s long haul air transport capacities’ – capacities which the EU desperately needs if its European Security and Defense Policy is to carry much punch. The exception is Israel’s action plan, which is less a list of things for Israel to do, and more a list of things for the EU and Israel to do together: for some, a clear indication of the more equal standing of the two sides; for others, another sign of the EU offering Israel too much of a carrot and not using enough of a stick.21 The action plans with the other neighbours are certainly much, much more commanding – and perceived inconsistency in the EU’s treatment of its neighbours may reduce its credibility and legitimacy. In attempting to prevent the emergence of new dividing lines in Europe, the Commission has two broad approaches. The first is to encourage (and support financially) the inclusion of the neighbours in European networks of all kinds: transport, research and education, energy, environment, culture and so on (this can also entail approximating to EU standards first). The second is to foster cross-border cooperation, and specifically concrete projects to link neighbouring regions across the EU’s new border. The Commission is streamlining and simplifying the funding of such programmes, which has long been complicated by a profusion of different regulations and procedures. The Commission has estimated that total funding available for these programmes for 2004-06 would be a substantial €955 million (drawn from the existing aid programmes).22 Other ways of diminishing the importance of borders, however, are much less easily realized by EU action. The Commission has suggested, so far unsuccessfully, visa facilitation and the establishment of local border traffic regimes, to allow border area populations to maintain traditional contacts. Member states still hesitate to go that far in blurring the EU’s outer border. Furthermore, the measures to foster 19 R. Dannreuther, ‘Introduction: setting the framework’, in R. Dannreuther, (ed.), European Union foreign and security policy: towards a neighbourhood strategy, (London, 2004), p. 3. 20 In these, a third country must agree to readmit not only its own nationals expelled from member states but the nationals of other countries who have passed through its territory on their way to the EU. They firmly place the onus on third countries to control movements of their own and other countries’ nationals towards the EU. Not surprisingly, they have not been warmly welcomed by third countries, many of which (notably Morocco) did not consider the financial incentives offered by the EU to be enough to prompt them to sign. Now the EU has effectively made future relations conditional on acceptance of a readmission agreement. 21 Diab, ‘Commission wants closer EU-Israeli ties’. 22 European Commission, ‘Paving the way’, pp. 10-11.

Year

2007

2008

2009

2010

2011

2012

2013

Total 2007–2013

€million (2004 Prices)

1,433

1,569

1,877

2,083

2,322

2,642

3,003

14,929

The European Neighbourhood Policy

Table 2. Proposed appropriations for commitments for the European Neighbourhood and Partnership Instrument

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cross-border cooperation go hand in hand with strong pressure on the neighbours to manage their borders and reform their customs services. This may help to speed up traffic across borders where new regulations on visas have just been imposed, but it will also address the EU’s concerns about trafficking (of illegal immigrants, drugs, weapons and so on) across those borders. The dilemma, of course, is that when countries try to ‘harden’ borders – particularly where cross-border travel has boomed since the end of the Cold War (as between Poland and Ukraine) – they may end up fostering even more illegal cross-border activity, as people try to circumvent controls.23 The Commission has proposed increasing the resources available to the ENP for the 2007-13 financial perspective. In a radically simplified structure for financing the EU’s external action, a European Neighbourhood and Partnership Instrument (ENPI) would replace existing geographical and thematic programmes with the 16 ENP partners plus Russia.24 The ENPI will encourage economic integration and political cooperation between the EU and the neighbours, promote sustainable development and poverty reduction, and address security and stability challenges posed by geographical proximity to the EU. It would support the implementation of the ENP action plans. The proposed expenditure would increase over the seven-year period (see table 2), but total expenditure on the ENPI would still be just over 15 per cent of spending on external action (a proposed figure of €95,590 million), and the external action budget itself accounts for less than 10 per cent of the EU’s total budget. 25 Negotiations on the financial perspectives are in their infancy. Six net contributor countries (Austria, France, Germany, the Netherlands, Sweden and the UK) have declared that the budget ceiling should be capped at 1 per cent of annual EU gross national income or GNI (the Commission has proposed budgets of an average of 1.14 per cent of annual GNI), which could reduce proposed spending significantly. 4. Challenges remaining in the Neighbourhood The ENP is shaping up to be an ambitious cross-pillar and possibly well-funded foreign policy initiative, though the goal of providing neighbours with clear benchmarks for reform connected to clear incentives cannot be said to have been 23 See Batt, The EU’s new borderlands, chapter 3, and J. Zielonka, ‘How new enlarged borders will reshape the European Union’, Journal of Common Market Studies, 39: 3, (2001): 522-6. 24 European Commission, Proposal for a regulation of the European Parliament and of the Council laying down general provisions establishing a European Neighbourhood and Partnership Instrument, COM (2004) 628 final, (Brussels, 29 September 2004). 25 Comparing the ENPI budget with current spending is problematic. In 2004 the budget for the Mediterranean and East European countries totalled €1,420 million (€467 million for Eastern Europe, Caucasus and Central Asia, and €953 million for the Middle East and southern Mediterranean), but the ENPI includes parts of other current budget lines as well.

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achieved yet. But three other serious challenges for the EU remain. The first is that of confronting the ghost of enlargement, which haunts EU relations with its neighbours; the second is the challenge of influencing positively the serious problems afflicting several of those neighbours; the third is that of building a neighbourhood with some degree of cohesiveness. Three observers have argued that ‘no matter how frequently NATO and EU officials reiterate that they have no intention of redividing Europe, irrespective of how many “partnerships” they offer to non-members, the inevitable consequences of admitting some countries to full membership of the organizations and excluding others is to produce “insiders” and “outsiders”’.26 And the problem for the EU is that those outsiders object, vociferously, to being on the outside. Just as the EEA did not stave off for long the accession of three EFTAns, so the ENP is lagging behind aspirations in Eastern Europe. The debate about Ukraine crystallizes the dilemma. Ukraine has been stating its intention to join the EU since the mid-1990s. Its intention may have been far removed from the reality of conditions within the country, in terms of its actual preparation for moving closer to the EU and compliance with membership conditions, but it was nonetheless declared persistently.27 The ENP can in fact be interpreted as being a policy partly designed to handle this ‘Ukrainian problem’ in the short term. It is patently failing to do so. The dramatic public protests over the conduct of the Ukrainian presidential elections in the autumn of 2004, the agreement to rerun the second round of those elections in accordance with OSCE/EU election standards, and opposition candidate Viktor Yushchenko’s victory in the rerun have been described as an ‘orange revolution’. It was accompanied by demands from Yushchenko himself, some member states (above all Poland), the European Parliament and numerous commentators for the EU to respond to these remarkable events by offering Ukraine the clear prospect of membership.28 The EU’s refusal to do so was apparently contributing to a ‘widening split between Kiev and Brussels’; but splits were also appearing in Brussels.29 The pressure on the EU to move Ukraine from the ENP to the ‘pre-accession’ policy is intense, even though doing so might 26 M. Light, S. White and J. Lowenhardt, ‘A wider Europe: the view from Moscow and Kyiv’, International Affairs, 76: 1, (2000): 77. 27 Ukraine’s policy seemed to be one of ‘integration by declaration’: Light et al., ‘A wider Europe’, p. 85. 28 See ‘Yushchenko seeks EU membership’, BBC News Online, 25 Jan. 2005; J. Pawlicki and R. Soltyk, ‘Time to offer more to Ukraine during “birth of a new European nation”’, European Voice, 16 December 2004-12 January 2005; ‘A region transfixed’ and ‘Ukraine on the brink’, The Economist, 27 November 2004; J. Steele, ‘Ukraine’s postmodern coup d’etat’, Guardian, 26 November 2004. On 13 January 2005 the European Parliament voted by 467 to 19 in favour of a non-binding resolution calling for Ukraine to be given the prospect of EU membership. 29 A. Beatty, ‘Yushchenko seeks to heal split with EU’, European Voice, 27 January2 February 2005; Honor Mahony, ‘European Commission sends contradictory messages on Ukraine’, euobserver.com, 28 February 2005.

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have a negative impact on the EU’s relations with Russia. Can the EU continue not to offer entry to this importunate would-be member? In 2002, Prodi stated: ‘The goal of accession is certainly the most powerful stimulus for reform we can think of. But why should a less ambitious goal not have some effect? A substantive and workable concept of proximity would have a positive effect.’30 The problem is that the ‘less ambitious goal’ does not seem to be enough for Ukraine. Does this mean that the EU’s only way of influencing Ukraine (and other neighbours) is to offer membership? Andrei Zagorski has argued that ‘conditionality will not be the efficient tool for dealing with Ukraine unless the EU decides to grant Kiev a prospective membership option’.31 But Zagorski’s recommendation that the EU instead engage Ukraine in a dialogue on shared values and cooperation, addressing shared security threats, looks unlikely to work either, given the extent to which the stakes have now been raised on membership. It will require much careful diplomacy and a more precise offer of incentives to lower those stakes – if the EU can agree to do so in lieu of a membership promise. While Ukraine poses the immediate problem, the membership issue will surely arise also with respect to the other East European countries in the ENP – particularly if they too should launch profound political and economic reforms. Arguably, the membership issue will not end even there. The inclusion of potential EU members and outsiders in the ENP has not diluted the membership aspirations of the East European countries and might raise the aspirations of the Mediterranean countries. After all, Morocco first made its case for joining the Community back in 1987. Geographically, the southern Mediterranean will be that much ‘closer’ after Turkish accession (should that happen), and historically, of course, the Roman empire joined the northern and southern shores of the Mediterranean sea. A southern enlargement is not beyond the realms of imagination, particularly of the imagination of those in the south. And how will the EU react if Lebanon or Morocco moves rapidly towards liberal democracy? The pressures to expand beyond the ENP could well increase. The problem here is the inherent ambiguity in the definition of ‘Europe’ – and therefore of the membership and identity of the EU. So far, the EU has never dashed membership expectations (Morocco is excepted) with a definite, permanent ‘no’; and accepting the implications of such a decision does not come easily to the EU. Yet ambiguity is not boosting the EU’s leverage: in fact, it is forcing it into a reactive and defensive rather than a strategic mode. Thus a policy based on ambiguity may not produce the effects the EU expects – and will therefore probably not last very long. The second challenge facing the EU is how to deal with ‘countries of concern’ and serious conflicts in and between the neighbours. Countries of concern include Belarus and Libya, but several other neighbours (Syria in particular) are also problematic,

30 R. Prodi, A wider Europe, p. 3. 31 A. Zagorski, ‘Policies towards Russia, Ukraine, Moldova and Belarus’, in Dannreuther, ed., European Union foreign and security policy, p. 94.

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both in terms of their lack of respect for human rights and democratic principles,32 and because of security concerns. The list of sites of conflict is tragically long: the Middle East, primarily between Israel and the Palestinian Authority; Moldova; Armenia and Azerbaijan; and Georgia. Does the ENP give the EU more leverage, more possibilities to exercise influence, in these cases than it had before? Neither Belarus nor Libya is currently linked to the EU by a formal agreement, and the ‘conditional’ carrots so far offered by the EU – conclusion of the PCA for Belarus, inclusion in the Euro-Med framework for Libya – have had some effect arguably only with respect to Libya (though it is not clear how much the latent threat of force by the US played a role in nudging Libya towards accepting western demands). The lifting of UN sanctions on Libya in 1999, its closing down of WMD programmes and its announcement that it was ready to be a full member of the Euro-Med process are all extremely positive steps. Still, the EU is insisting that Libya fully accept the ‘Barcelona acquis’ and resolve outstanding issues in relations with member states before it can be fully integrated into the Euro-Med process and therefore into the ENP. The signals are promising, but the carrots may not prove appetizing enough if Libya perceives the ENP as merely providing a long list of things to do for few concrete rewards in return. Optimism comes much less easily in the case of Belarus. The EU has made it clear that only when the conditions for free and fair elections have been achieved can Belarus be integrated into the ENP.33 Whether the additional carrots on offer under the ENP will make a difference to politics within Belarus can be doubted. In the meantime, the Commission has proposed that the EU give more aid to support civil society and democratization in Belarus, hoping that a ‘bottom-up’ approach will eventually work. Belarus represents an extreme case of an authoritarian regime apparently little enticed by the EU’s carrots and little disturbed by the EU’s sticks (no aid programme, no agreement). But in other non-democratic regimes around the Mediterranean, the EU’s attempts to influence politics seem just as ineffectual. The EU has generally not applied political conditionality, and political dialogue has tended not to dwell on democracy or human rights; the fear of giving too much political space to Islamic fundamentalists has acted as a powerful deterrent, and the EU does not want to destabilize countries whose support for a Middle East peace agreement and action against terrorism and illegal immigration are so crucial.34 Those regimes are now under considerable pressure from the US (now bent on spreading freedom around the world), so that there might be more space for the EU to get tough, should the member states so agree. But will offering more of the same – more (though vaguely stated) integration with the EU, more aid – be enough to make a difference, to 32 None of the neighbours can be considered to behave as a good example in this respect, but the question is one of degree. Some are clearly worse than others. 33 European Commission, European Neighbourhood Policy strategy paper, p. 11. 34 Gordon Crawford, Foreign aid and political reform: a comparative analysis of democracy assistance and political conditionality (Basingstoke: Palgrave, 2001), pp. 221-3.

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persuade those countries to reform? Here the absence of clear benchmarks linked to clear benefits is particularly disturbing. Then there are the conflicts in the neighbourhood. The EU has not been engaged in several of these – in Moldova, Georgia, or Armenia and Azerbaijan – instead supporting the conflict resolution efforts primarily of the OSCE. In fact, the EU has generally not engaged with those neighbours at all, which means that the ‘EU’s rhetorical reach exceeds its grasp’: its occasional pronouncements go unheeded.35 The action plans with Moldova and Ukraine call on both to participate constructively in OSCE negotiations for settling the Transnistria conflict.36 The ENP may give the EU more leverage, because its instruments are more numerous than in the past, but its capacity to make a significant impact on such countries and conflicts could be dwarfed by the scale of the problems and the involvement of other actors – notably Russia. The biggest conflict is, of course, the Israeli-Palestinian one, which also has pernicious effects on security in the wider Mediterranean. The Euro-Mediterranean process was an attempt to foster interdependence and therefore mutual trust that might ease security concerns in the Middle East; but so far it has not succeeded in doing so, and in fact it has often been stymied because of the very lack of progress in the peace process. Indeed, the 2000 Common Strategy on the Mediterranean admitted that cooperation within the Euro- Mediterranean framework was ‘providing a foundation on which to build once peace has been achieved’ – in other words, not before.37 The action plans for Israel and the Palestinian Authority urge progress towards a comprehensive settlement of their conflict, and expect Israel to work with the EU to that end (in an attempt to prevent the EU from being sidelined in negotiations). But rather than dwelling on the negotiating process itself (much less using its leverage to compel both parties to negotiate), the EU is instead urging fundamental domestic reforms in Palestine – thus appearing to respond assiduously to Israeli concerns about terrorism, financial fraud and the this will work remains to be seen, but again the absence of a clear incentive structure does not help the EU’s cause much. The third challenge for the EU is how to connect the disparate countries and regions included in the ENP. The EU has not inserted a strong regional, much less multilateral, component in the ENP. It is a policy based on strengthening the bilateral links between the EU and each neighbour – a policy for neighbours rather than a neighbourhood policy. As noted above, there is no overarching framework providing for regular meetings or contacts among all of the neighbours. This may logically reflect the geographical extent of the neighbourhood, and the fact that the two parts 35 S. N. MacFarlane, ‘The Caucasus and Central Asia: towards a non-strategy’, in Dannreuther, ed., European Union foreign and security policy, p. 131. 36 The Council recently appointed a special envoy to Moldova to contribute to peacemaking, which sparked bureaucratic wrangling as the Commission insisted that the envoy have limited involvement in implementing the ENP action plan. ‘Dutchman set to be EU’s man in Moldova’, European Voice, 10-16 March 2005. 37 European Council, Common Strategy of the European Council of 19 June 2000 on the Mediterranean region (2000/458/CFSP), in OJ L 183, (22 July 2000).

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of it, Eastern Europe and the Mediterranean, are not coterminous and differ quite markedly in many of the challenges faced by the countries within them. It also reflects the difficulties inherent in constructing a meaningful and effective multilateral dialogue among so many different countries. But there is also remarkably little on regional cooperation in the ENP, compared to the emphasis on domestic reforms and building ties with the EU. The EU has evidently concluded that the way to foster peace and prosperity in the neighbourhood is to foster reform in each neighbour first. The action plans do encourage cross-border cooperation (between neighbours, and between each neighbour and its bordering EU member state or states); they do encourage political dialogue (between the EU and each neighbour) on ‘regional issues’; and those with Mediterranean countries do mention both the EuroMediterreanean process in general and the need for those neighbours to free up their trade with one another. Yet such priority actions are still vastly outnumbered by the actions relating to domestic reforms. The emphasis is plainly on encouraging each neighbour to undertake economic and political reforms, in accordance with the ‘guidance’ provided by the EU. Strikingly, the Commission has stated that the EU will ‘strongly encourage’ regional integration in the Mediterranean, but will only ‘consider’ new initiatives to encourage regional cooperation between the former Soviet republics, a genuinely touchy issue because of the risk of legitimizing Russian dominance.38 It has also made clear that the EU will not establish new regional bodies, but will rather support existing entities (thus fostering local ownership of regionalism).39 If the financial resources devoted to supporting such initiatives increase, then the ENP may indeed encourage regional cooperation. But it still creates a ‘hub and spoke’ model for its relations with the neighbours, similar to the one that it developed with the Central European countries – which has been criticized as not encouraging the mutual identification that would ease their integration into the EU.40 Furthermore, the EU is clearly the dominant actor in the relationship, with no multilateral framework that might balance the partners. Yet the EU is the world’s foremost example of regional integration, has prided itself on boosting regionalism elsewhere in the world, and now claims to be supporting effective multilateralism everywhere. Not doing so in its own backyard seems a rather curious paradox. 5. Conclusion Is the ENP adequate to deal with the outsiders? Will it foster a friendly neighbourhood and a ‘ring of friends’? The challenge is enormous, given the problems faced by the neighbours, and requires an ambitious policy response. That the ENP certainly is. 38 European Commission, Wider Europe – neighbourhood, p. 8. 39 European Commission, European Neighbourhood Policy strategy paper, p. 21. 40 See P. Dunay, ‘Strategy with fast-moving targets: East-Central Europe’, in Dannreuther, ed., European Union foreign and security policy, p. 40.

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But the ENP requires much of the neighbours, and offers only vague incentives in return. The hovering ghost of enlargement will not vanish if ‘all but institutions’ proves to be meaningless, and fostering reform – much less conflict resolution – will be an uphill struggle. The member states will need to be more serious about setting clear benchmarks (and standing by them consistently) and offering concrete incentives (even when they perceive these to be costly to themselves) if the ENP is to meet its core objectives. A clearer incentive structure, attached to clearer and well-ordered priorities, would give the EU better tools for fostering fundamental reform in the neighbours. And while there is an undeniable need for reform in the neighbours, there is also an undeniable need for all the neighbours to cooperate with one another. Strengthening the multilateral and/or regional elements in the ENP would help to tackle not just the cross-border problems that affect the EU but also those that affect all of the neighbours. Most importantly, the EU should try to resolve the hardest dilemma of all: where its borders will stop moving outwards. Ambiguity is not working. Either the EU should say ‘no’ to further enlargement, so that the ENP (preferably revamped and improved) becomes the framework for relations with the neighbours for the foreseeable future; or it should say ‘yes’ to letting in (eventually) a specified number of neighbours, which then move out of the ENP, but no one else. But it will not be easy for a consensual body, in which compromise is a necessity and ambiguity of purpose traditionally a virtue, to make such a definitive statement about the EU’s identity.

Chapter 12

No Constitutional Treaty? Implications for the Area of Freedom, Security and Justice Sergio Carrera and Elspeth Guild

1. Introduction The Amsterdam Treaty ‘Europeanized’ policies relating to ‘Freedom, Security and Justice’. Since its entry into force in 1999, the progressive development of a European area encompassing these three dimensions has been constantly reaffirmed as a priority for the Union. The European Constitution positively revisited the foundations and prospects of the EU’s Area of Freedom, Security and Justice (AFSJ) and proposed a far-reaching reallocation of competencies.1 First, most of the complex institutional and legal frictions that currently characterize cooperation in these sensitive policies would have been substantially solved with the entry into force of the Constitution. Secondly, it would have provided a uniform juridical framework facilitating efficiency and legal certainty, and overcoming the current democratic and judicial deficit that policies dealing with ‘Freedom, Security and Justice’ quite often suffer from. Thirdly, by collapsing the current pillar structure, the Constitutional Treaty would have abolished the EU Third Pillar, which is the intergovernmental dimension from which the most far-reaching policies dealing with ‘security’ emerge. Police and judicial cooperation in criminal matters would have mutated into a Community competence. Finally, the Constitution, and particularly the Charter of Fundamental Rights of the European Union inserted as its Part II, would have guaranteed the accountability (democratic check) of the legal measures adopted and their full compliance with the rule of law and fundamental rights. The future of the Constitutional Treaty, however, is now very much in doubt. The blows received from the French and Dutch referenda in such rapid succession have made it difficult to imagine that the Treaty, at least in its current form, will ever enter into force. In this paper we examine what the failure of the Constitutional Treaty 1 Treaty Establishing a Constitution for Europe, as signed in Rome on 29 October 2004 and published in OJ C/310 on 16 December 2004. See Article I-3.2 (The Union’s Objectives) which stipulates that ‘The Union shall offer its citizens an area of freedom, security and justice without internal frontiers’.

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would mean for the Area of Freedom, Security and Justice. What are the effects should the Constitutional Treaty fail and what could be done to mitigate those effects that are negative? These are the questions we propose to address here. This paper proceeds in two main sections: first we examine the implications that a failing Constitutional Treaty would have towards the progressive building of an AFSJ. Secondly, we address the negative consequences that the failure of the Constitution would cause, and whether they could be overcome through other ‘alternative mechanisms’. In the final section we specifically consider what some may see as an attractive option – seeking to limit the damage via institutional behaviour that conforms to the norms set out in the Constitution – and examine the risks inherent in such an option. 2. What Benefits are Promised/Lost by the Ratification/Rejection of the Constitutional Treaty? This section highlights seven main benefits, promised by the Constitutional Treaty for policies under the rubric of ‘Freedom, Security and Justice’ and considers the implications of its failure. 1. The complexity, ambiguity and lack of transparency inherent to the current regime would be considerably diminished by the abolition of the already familiar ‘pillar division’ in the treaties. These policies are currently placed in two different locations within the wider EU legal framework: the EC First Pillar, which contains Title IV of the Treaty establishing the European Community (TEC), ‘Visas, Asylum, Immigration and other policies related to free movement of persons’, and the EU Third Pillar, which resides in Title VI of the Treaty on the European Union (TEU), ‘Provisions on Police and Judicial Cooperation in Criminal Matters’ (see table in the annex).2 The negative effects that this division encompasses have often been pointed out:3 a lack of transparency regarding the institutional and procedural settings, a high degree of inefficiency owing to the duality in the legal dimension4 and a serious lack of democratic and judicial accountability. The Constitution would have ‘communitarized’ most of the policies falling within the EU Third Pillar and offered a unique framework common for all these fields under Chapter IV ‘Area of Freedom, Security and Justice’ (Articles III-257 until III-277). This 2 About the evolution of the EU Third Pillar in an institutional perspective, see P. J. Kuijper, ‘The Evolution of the Third Pillar from Maastricht to the European Constitution: Institutional Aspects’, Common Market Law Review, 41, (2004): 609-626. 3 See T. Balzacq and S. Carrera, Migration, Borders and Asylum: Trends and Vulnerabilities in EU Policy, (Brussels, 2005). 4 For an analysis of the concept of efficiency in relation to Justice and Home Affairs policies, see M. Anderson and J. Apap, Striking a Balance between Freedom, Security and Justice in an Enlarged European Union, (Brussels, 2002), pp. 25-28.

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consolidation would have considerably facilitated the development of more integrated, legitimate and coherent policies. 2. The Constitution would harmonize the package of legal acts that are being used to develop policies on Freedom, Security and Justice. As mentioned, at present there is a dual legal dimension which creates uncertainty as regards the precise legal effects of each of the acts, as well as in terms of their particular scope. The instruments that are used to adopt measures under the First Pillar are already well known: Regulations, Directives, Recommendations, Decisions and Opinions. Under the umbrella of the Third Pillar, instead we find conventions, common positions and framework decisions. The latter, which are binding on member states in their entirety and do not require national ratification,5 do not have direct effect. However, a recent judgement by the European Court of Justice (Pupino ruling6) confers direct effect for Framework Decisions. In paragraph 38 of that crucial ruling, the ECJ stated that its ‘jurisdiction would be deprived of most of its useful effect if individuals were not entitled to invoke framework decisions in order to obtain a conforming interpretation of national law before the courts of the Member States’. Article I-33 of the Constitutional Treaty would have required the institutions to use certain legal instruments in order to exercise the Union’s competences: European Laws (which have the same features as the traditional Regulations), European Framework Laws (which correspond to Directives), European Regulations, European Decisions and Recommendations. This uniform set of legal instruments would have brought a substantial degree of legal certainty to the whole system. However, the way in which the transition towards the new juridical regime presented in the Constitutional Treaty would actually take place remains far from clear. If the Constitutional Treaty is indeed not adopted, the heterogeneity in the types of EU laws would unfortunately continue. This would have substantial disadvantages for the Union, the member states and individuals. Already Framework Decisions – the preferred instrument of the EU Third Pillar – have required interpretation by the ECJ regarding their precise legal effects. The unfortunate tendency inside the Council to treat Framework Decisions 5 According to Article 34 of the TEU, ‘Framework Decisions shall be binding upon the Member States as to the result to be achieved but shall leave to the national authorities the choice of form and methods. They shall not entail direct effect.’ On the other hand, Article 249 TEC establishes that ‘A Directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods’. Directives may be addressed to any one member state and do not have to be addressed to all. Even though this article implies that the provisions contained in a directive are not directly applicable, the ECJ has ruled otherwise: an individual can rely on the provisions of a directive against a defaulting state after the time limit for implementation has expired. For an in-depth study of the legal instruments that are being used to develop EU policy, see P. Craig and G. de Búrca, EU Law: Text, cases and materials, (Oxford, 2000). 6 Case C-105/03, Criminal Proceedings against Maria Pupino, 16 June 2005.

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Security Versus Freedom?

as ‘gentlemen’s agreements’ rather than as ‘real law’ is likely to change but for the moment member states seem to make compromises on wording that is based on what now appears to be a fallacious belief that Framework Decisions do not have direct legal effects. The failure of the Constitution would leave in doubt the real effects of different types of measures under the AFSJ fields. This, in turn, will lead to conflict. 3. As regards the decision-making process, following Article III-396, qualified majority voting (QMV) and the co-decision procedure would become the applicable procedural rules. This would bring numerous positive elements to the regime. Article 67 of the TEC foresaw that five years after the Amsterdam Treaty entered into force (1 May 1999), the Council would take a decision providing for all or parts of the areas covered by Title IV (Visas, Asylum, Immigration and other Polices related to Free Movement of Persons) to be governed by the co-decision procedure (Article 251 TEC) and QMV voting. Following that official call for action, the Council Dision 2004/927 of December 2004 indeed provides for the extension of co-decision to all the fields of JHA included in the EC First Pillar, except for the case of legal migration.7 The first measure ready to be adopted under the extended co-decision procedure is the so-called the ‘Community Borders Code’.8 However, this only applies to the First Pillar. The EU Third Pillar remains far from being the best democratic practice of the EU. Under the Constitution, the European Parliament would be more directly involved in the overall decision-making process of those fields currently covered by the EU Third Pillar. At present, the European Parliament is not sufficiently included in the decision-making of Third Pillar-related policies, which have profound consequences in the daily lives of every individual inside the EU.9 While the EC First Pillar has now been brought into conformity with EU norms and settings, the EU Third Pillar remains sui eneric.10 The 7 Council of the European Union, Council Decision 2004/927/EC of 22 December 2004 providing for certain areas covered by Title IV of Part Three of the Treaty establishing the European Community to be governed by the procedure set out in Article 251 of that Treaty, OJ L 396/45. (December 2004). 8 European Commission, Proposal for a Council Regulation establishing a Community Code on the rules governing the movement of persons across borders, COM (2004) 391, (Brussels, 26 May 2004).This Regulation would establish rules governing the movement of persons across external and internal borders in the European Union. 9 See J. Apap and S. Carrera, ‘Progress and Obstacles in the Area of Justice and Home Affairs in an Enlarging Europe’, in J. Apap (ed.), Justice and Home Affairs in the EU: Liberty and Security Issues after Enlargement, (Cheltenham, 2004), pp. 1-24. 10 Article 29 TEU says that ‘Without prejudice to the powers of the European Community, the Union’s objective shall be to provide citizens with a high level of safety within an area of freedom, security and justice by developing common action among the Member States in the fields of police and judicial cooperation in criminal matters and by preventing and combating racism and xenophobia’.

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advantages of a single legislative procedure where democratic accountability of any measure being proposed and adopted is guaranteed would be lost if the Constitution is rejected. 4. The Constitutional Treaty would also confer an enhanced accountability to the national parliaments over decisions taken under these areas.11 The importance of national parliamentary scrutiny and its direct linking with the EU system cannot be underestimated as we have seen in the ratification process of the Constitutional Treaty. The distance between the people of Europe and the EU institutions is far too large. The engagement of national parliaments in the legislative machinery of instruments of heightened sensitivity such as the ones dealing with ‘Freedom, Security and Justice’ is crucial for a high involvement of the people of Europe. A clear and more active role for national parliaments in the decision-making process and monitoring of EU security agencies (such as Europol and Eurojust) is necessary to strengthen democracy inside the Union.12 Rejection of the Constitution would deal a severe blow to this key objective. 5. Judicial control over executive action in the fields of AFSJ is critical to the protection of civil liberties and fundamental rights, as well as the rule of law. The European Court of Justice does not have full competence to review and interpret legal instruments dealing with judicial cooperation in criminal matters and police cooperation. This variable geometry of the ECJ jurisdiction in the Third Pillar is problematic. In particular, the relegation of immigrants, asylum-seekers and refugees to an inferior level of judicial protection inside the TEC is not acceptable.13 Some limitations to the jurisdiction of the Court in Luxembourg would remain under the Constitution, however, such as the stipulation presented in Article III-377.14 11 Article III-259 stipulates that ‘National Parliaments shall ensure that the proposals and legislative initiatives submitted under Section 4 and 5 of this Chapter comply with the principle of subsidiarity, in accordance with the arrangements laid down by the Protocol on the application of the principles of subsidiarity and proportionality’. 12 See Article I-42.2 of the Constitutional Treaty, which establishes that ‘National Parliaments may, within the framework of the area of freedom, security and justice participate in the evaluation mechanisms provided for in Article III-260. They shall be involved in the political monitoring of Europol and the evaluation of Eurojust’s activities in accordance with Article III-276 and III-277’. 13 For an examination of the evolving role of the Court in the fields of immigration and asylum and its implications for individual immigrants and asylum seekers in the Union, see E. Guild and S. Peers, ‘Deference or Defiance? The Court of Justice’s Jurisdiction over Immigration and Asylum’, in E. Guild and C. Harlow (eds), Implementing Amsterdam: Immigration and Asylum Rights in EC Law, (Oxford, 2001). 14 This provision states that ‘the ECJ shall have no jurisdiction to review the validity or proportionality of operations carried out by police or other law-enforcement services, or the exercise of the responsibilities incumbent upon member states with regard to the maintenance of law and order and the safeguarding of internal security’.

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Further quick and universally applicable interpretation and accountability of each EU measure dealing with these fields are vital for the development of a strong AFSJ. The legitimacy and legality of this European area depend on individuals being able to rely on, and challenge the legislation in place. Without the direct and open engagement of citizens of the Union, the area cannot succeed. The approval of citizens depends on their confidence about the protection of the rule of law. As we have seen in the ECJ’s judgment in Pupino, the extension of fundamental rights to these areas in order to protect the citizen is necessary as part of the legal framework that protects the coherence of the rule of law.15 6. The field of JHA most affected by the Constitutional Treaty would clearly be police and judicial cooperation in criminal matters.16 These areas, which currently reside in the EU Third Pillar, have been developed in a rather loose legal framework (the intergovernmental method). A ‘no’ to the Constitution would trap this area in its existing legal limbo, causing substantial problems for its overall efficiency. There is a pressing need to bring these policies to the ‘Community method’, which would be the only way to provide them with a greater coherency, certainty and legitimacy. The Constitution would have helped considerably to fill this gap. Its failure would mean that the current incoherencies will persist. All the weaknesses of using exclusive mutual recognition of judgements and judicial decisions under a weak legal framework as an organising principle would be magnified.17 The weakness inherent in the most important Third Pillar measure in criminal justice – the European

15 In particular, the Court highlighted in this ruling that ‘in accordance with Article 6(2) EU, the Union must respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950, and as they result from the constitutional traditions common to the Member States, as general principles of law. The Framework Decision must thus be interpreted in such a way that fundamental rights, including in particular the right to a fair trial as set out in Article 6 of the Convention and interpreted by the European Court of Human Rights, are respected’. See paragraphs 58 and 59 of the judgement. 16 For a study of the proposed constitutional framework of the EU from the perspective of the gradual realization of measures in criminal law, see E. Guild, ‘Crime and the EU’s Constitutional Future in an Area of Freedom, Security and Justice’, European Law Journal, Vol. 10, No. 2, (2004): 218-234. 17 See S. Peers, ‘Mutual Recognition and Criminal Law in the European Union: Has the Council got it wrong?’, Common Market Law Review 41, (2004): 5-36, which highlights that ‘…the principle of mutual recognition in criminal matters is different from the traditional principle of cooperation between States…in the system of mutual recognition, the decision of the first State takes effect as such within the legal system of the second State…[T]he effect of the mutual recognition system is that the executing State has in principle lost some of its sovereign power over the full control of the enforcement of criminal decisions in its territory’.

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Arrest Warrant 18 – was made apparent when the Constitutional Courts in Germany and Poland found their national implementing legislation conflicted with constitutional guarantees. 19 The possibility to move these policies into the first pillar through the use of Article 42 of the TEU is discussed below in section 3. Further, the failure of the Constitutional Treaty would put an end, at least in the short term, to the possibility of creating a ‘European Public Prosecutor’ who would coordinate the provision of criminal justice in cross-border situations.20 This is unfortunate as it is precisely legal ‘coordination’ more that anything else that is lacking in these policies.21 The coherency of the system of police cooperation at the EU level would also be weakened if the Constitution fails.22 Already a small number of member states have moved ahead in regulating the exchange of sensitive police data outside the EU framework by concluding the Prüm Convention (commonly called ‘Schengen III’).23 This new challenge to solidarity in the area among all the member states requires a robust common European response. This is now further excluded, or at least inhibited by the failure of the Constitution. 18 See J. Apap and S. Carrera, ‘The European Arrest Warrant: A Good Testing Ground for Mutual Recognition in the Enlarged EU?’, CEPS Policy Brief, No. 46, (2004). 19 Judgement of 18 July 2005, 2 BvR 2236/04, Bundesverfassungsgericht, which states ‘The European Arrest Warrant Act infringes the guarantee of recourse to a court (Article 19.4 of the Basic Law) because there is no possibility of challenging the judicial decisions that grants extradition’. See also Judgement of the Polish Constitutional Tribunal concerning the European Arrest Warrant, 27 April 2005, P1/05, which ruled that ‘Article 607t § 1 of the Criminal Procedure Code, insofar as it permits the surrendering of a Polish citizen to another Member State of the European Union on the basis of the European Arrest Warrant, does not conform to Article 55(1) of the Constitution’. 20 The European Public Prosecutor would be a judicial body with direct enforcement authority, not just an individual with powers to facilitate and coordinate the action of the member states. It would be responsible for the investigation and prosecution of financial crimes against the EC throughout the EU. The financial crimes would include for example fraud, corruption and money laundering. See C. Van den Wyngaert, ‘Eurojust and the European Public Prosecutor in the Corpus Juris Model: Water and Fire?’, in N. Walker (ed.), Europe’s Area of Freedom, Security and Justice, (Oxford, 2004), pp. 201-239. 21 See Anderson and Apap, Striking a Balance between Freedom, Security and Justice in an Enlarged European Union, pp. 45-53. 22 For an evaluation of the police cooperation at EU level see C. Fijnaut, ‘Police Cooperation and the Area of Freedom, Security and Justice’, in N. Walker (ed.), Europe’s Area of Freedom, Security and Justice, (Oxford, 2004), pp. 241-282. 23 The Prüm Convention between the Kingdom of Belgium, the Federal Republic of Germany, the Kingdom of Spain, the French Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands and the Republic of Austria on the stepping up of cross-border cooperation, particularly in combating terrorism, cross-border crime and illegal migration, was signed on 27 May 2005, Council Secretariat, Brussels, 7 July 2005, Document no. 10900/05.

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7. Finally, the inclusion of the Charter of Fundamental Rights of the Union in Part II of the Constitution would place the EU under a clear legal obligation to ensure that in all its areas of activity, fundamental rights and ‘liberty’ are respected and actively promoted. The accession to the European Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR) of 1950 as provided in Article I-9 of the Constitution would have served as an excellent reminder to the member states of the obligations and commitments they have undertaken with respect to the ECHR.24 The Charter, originally agreed in 2000 in a non-binding form,25 constitutes the central plank of rights of the Constitutional Treaty. While it contains all the rights already included in the ECHR, it goes much further, codifying the rights and freedoms already existing in the EU treaties as well as those human rights and fundamental freedoms as recognized by international agreements to which the Union, the Community or all the member states are party.26 In the field of AFSJ, the transformation of the Charter into a Constitutional Bill of Rights is critical. While the Constitution makes few changes to the fields of immigration and asylum, the Charter, as a legally binding part of the Constitution, is likely to have deep and beneficial effects.27 The application of the principles of fundamental rights in EU instruments adopted in immigration and asylum has been hotly disputed. For instance, the European Parliament has taken action before the European Court of Justice to strike down provisions in the family reunification directive which it considers in opposition to the principle of respect for family life contained in Article 8 of the ECHR.28 The UN High Commissioner for Refugees (UNHCR) has urgently called for the 24 Article I-9 of the Constitution establishes that ‘The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Constitution. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result form the constitutional traditions common to the Member States, shall constitute general principles of the Union’s laws’. 25 The Charter of Fundamental Rights of the Union, OJ C-364/1, (7 December 2000). 26 Article II-113 of the Constitutional Treaty stipulates that ‘Nothing in this Chapter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognized, in their respective fields of application, by Union law and international law and by international agreements to which the Union or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States’ constitutions’. 27 See E. Guild, ‘The Variable Subject of the EU Constitution, Civil Liberties and Human Rights’, European Journal of Migration and Law, Vol. 6, No. 4, (2004). 28 Council of the European Union, Council Directive 2003/86 of 22 September 2003 on the right to family reunification, OJ L 251/12, (3 October 2003). See Case C-540/03, European Parliament v. Council, Case pending. The specific grounds being contested are: a) Member States are permitted under the Directive to exclude children over 12 if they have not complied with an integration requirement; b) children over 15 may be excluded altogether from family reunification; and c) Member States may restrict or exclude family reunification

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withdrawal of a proposal for a directive on minimum procedural standards for qualification as a refugee29 on the grounds that it does not meet the minimum requirements provided by the UN Convention on the status of refugee of 1951 and its 1967 protocol.30 Finding comprehensive tools to limit this sort of ‘human rights dispute’ is certainly in the interest of all the parties involved. The insertion of the Charter as a justiciable part of EC law would assist in clarifying the duties of the EU institutions in protecting fundamental rights and freedoms. It is now clear that the current, relatively weak, references to fundamental rights in the EU treaties have been insufficient to ensure that all the measures in AFSJ actually comply with them.31 In addition, the by now familiar passage that is usually incorporated in the preamble (or Explanatory Memorandum) of those legislative proposals and drafts instruments considered as having a link to fundamental rights does not provide a solution.32 This is because preambles do not have binding legal effect for the member states, and only provide interpretative guidance. In the AFSJ, the loss of a justiciable Charter of rights is among the gravest consequences of the failure of the Constitution. All of these sensitive areas covered by an AFSJ need to be placed within a strong legal framework that also incorporates fundamental rights as norms of Europe. The development of a strong fundamental rights system in the EU based on the right of the individual to rely on her/his rights directly before the courts has been central where the sponsor has been living less than two years in its territory. See Balzacq and Carrera, Migration, Borders and Asylum: Trends and Vulnerabilities in EU Policy, p. 8. 29 Council of the European Union, Amended Proposal for a Council Directive on minimum standards on procedures in the Member States for granting and withdrawing refugee status, Document no. 14203/04, Asile 64, (Brussels, 9 November 2004). 30 See UNHCR, The European Union, Asylum and the International Refugee Protection Regime, UNHCR’s recommendation for the new multi-annual programme in the area of freedom, security and justice, UNHCR, (New York, September 2004). See also UNHCR, Provisional Comments on the Proposal for a Council Directive on Minimum Standards on Procedures in Member States for Granting and Withdrawing Refugee States, Council Document, 14203/04, Asile 64, (New York, 19 November 2004). 31 Article 6.1 of the TEC provides that ‘the Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States’. Paragraph 2 of the same article establishes that ‘the Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the member states, as general principles of community law’. 32 The passage is worded as follows in SEC(2001) 380/3: ‘This [act] respects the fundamental rights and observes the principles recognized in particular by the Charter of Fundamental Rights of the European Union’. In some other cases a second sentence is added: ‘In particular, this [act] seeks to ensure full respect for [right XX] and/or to promote the application of [principle YY] / (Article XX and/or Article YY of the Charter of Fundamental Rights of the European Union)’.

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both to democracy and stability since the end of WWII. The confidence of the citizen in judicial protection against any executive incursion in respect of these rights and freedoms (right to an effective remedy),33 is a key element of the constitutional traditions of the member states. A failure of the Constitution would diminish this essential constitutional element to the legitimacy of the EU project to create an ever closer union among the peoples of Europe and the goal to achieve a truly coherent AFSJ. 3. Could the Negative Effects of these Seven Implications be Resolved without the Constitutional Treaty being Approved? In this section we examine what mechanisms are available to consolidate the legislative, operational and judicial mechanisms of AFSJ. Our objective is to see whether the AFSJ can be brought into the system of the EC First Pillar in the absence of a Treaty amendment. Complexity, ambiguity and lack of transparency are consequences of the current First and Third Pillar divide in the AFSJ realm.34 As long as this obscure structure continues to exist, the defects inherent to the dual dimension will stay with us. Without the Constitutional Treaty it will not be possible for uniform legal acts to have the same legal effects, nor will it be feasible to adopt for instance, policies on judicial cooperation in criminal matters and police under the EC First Pillar (Community Competence). Already at the moment, practical efficiency and effectiveness are subject to a variable geometry of EU law in these areas. While Denmark, Ireland and the UK have opted out of measures taken in the field of immigration and asylum (Title IV TEC – First Pillar), they participate fully in measures in police and judicial cooperation in criminal matters (Title VI TEU – Third Pillar).35 Moreover, in the First Pillar, Ireland and the UK have the possibility to opt in to measures, unless they are building on the Schengen acquis. Denmark’s position is slightly nuanced as it is opted out of all aspects of the TEU that are contained in Articles J.3.1 and J.7 on defence but opted in on Title IV EC measures on mandatory visa countries. There is no opt-out for any of the 10 new member states under the First or Third Pillars. They have been required to participate fully in both Title IV TEC and Title VI TEU. However, they are not yet 33 Otherwise provided in Article 13 of the ECHR (Right to an Effective Remedy), which reads as follows: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity’. 34 See M. den Boer, ‘The European Convention and its Implications for Justice and Home Affairs Cooperation’, in J. Apap (ed.), Justice and Home Affairs in the EU: Liberty and Security Issues after Enlargement, (Cheltenham, 2004). 35 Denmark, Ireland and the UK have negotiated special protocols attached to the Amsterdam Treaty that allow them to remain outside the measures adopted under the umbrella of Title IV of the EC Treaty. Ireland and the UK may, however, opt into any legal instrument dealing with these matters in a case-by-case basis.

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integrated in the free circulation area and border controls still apply at their borders with the other member states. Article 42 TEU is initially quite interesting as a potential mechanism to resolve the incoherence of Third Pillar serving as the vehicle for police cooperation and judicial cooperation in criminal matters. This appearance, though, is deceptive. Under this provision, the Council may take a decision, acting on the basis of unanimity that action in areas referred to in Article 29 TEU shall fall under Title IV TEC (First Pillar). This decision can only be based on an initiative by the Commission or a member state. Further it must be adopted by unanimity.36 The matters covered in Article 29 TEU include closer cooperation between police forces, customs authorities and other competent authorities in the member states, including cooperation through the European Judicial Cooperation Unit (Eurojust) and approximation of the rules on criminal matters in the member states. When and if such a decision is ever adopted, the relevant voting conditions are also to be established. Thus at first glance it would appear that there could be an easy transfer of fields of responsibility from the Third Pillar to the First in the areas that have caused so much concern. This would bring these policies under a single, coherent, legislative, effective and judicial supervisory structure. But this impression is incorrect. Article 42 TEU goes on to state that the Council shall recommend to the member states to adopt the decision ‘in accordance with their respective constitutional requirements’. This means that there would have to be a ratification procedure in the Member States in accordance with national constitutional requirements. As many aspects of judicial cooperation in criminal matters and police have far-reaching constitutional implications, some member states may be required to carry out constitutional amendments before they could ratify a decision following Article 42 TEU. In some member states this may include referenda approving the decision before it could take effect. Therefore this article does not get around the problem of ratification in the member states; it merely disguises the issue behind a decision of the Council. In fact there is not much difference between the Article 42 TEU procedure and a Treaty amendment. Politically it may be easier to argue that a referendum is not required under Article 42 TEU, but this depends on national Constitutional norms of each member state. The existence of Article 42 TEU highlights a further problem, the separation of competences among the pillars. Those fields of competence that have been assigned to the Third Pillar are exclusive to it and cannot be subsumed into the TEC (that is First Pillar) without the correct procedural requirements being fulfilled (that is Article 42 TEU). Article 308 TEC provides that where action by the Community 36 Article 42 TEU states that ‘The Council, acting unanimously on the initiative of the Commission or a Member State, and after consulting the European Parliament, may decide that action in areas referred to in Article 29 shall fall under Title IV of the Treaty establishing the European Community, and at the same time determine the relevant voting conditions relating to it. It shall recommend the Member States to adopt that decision in accordance with their respective constitutional requirements’.

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should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community and the TEC has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament, take the appropriate measures. However, this provision cannot be used to adopt measures in the fields of police and judicial cooperation in criminal matters as there are express powers in Title VI TEU. The only mechanism by which the powers could be moved into the First Pillar would be by means of Article 42 TEU or a Treaty amendment.37 Article 308 TEC cannot be invoked to circumvent the express arrangements of the TEU and the clear will of the member states. Such action would almost certainly be ultra vires and the ECJ would be obliged to find null and void any measures adopted under such a procedure.38 Even if it were possible to use Article 42 TEU to transfer a field of activity from the TEU to the TEC, the question would arise of where it could be transferred to. The special venue for such a field which is intrinsically tied to the AFSJ is Title IV TEC. But to transfer it to this part of the Treaty would have the consequence of placing it within the realm of the three protocols on opt-outs by Denmark, Ireland and the UK (see above).39 This might not be agreeable to those three states – one of which, at least, argued strongly in the intergovernmental conference leading to the Amsterdam Treaty for the retention of the EU Third Pillar as an area of weak 37 The European Parliament called in 26 May 2004 on the Council to move judicial and police cooperation into the Community sphere and on the Commission to draw up a proposal for a decision, on the basis of Article 42 of the TEU, providing that actions in areas referred to Article 29 are to fall under Title IV of the EC Treaty and, at the same time, requiring that such action to be decided on by qualified majority. See European Parliament resolution on progress made in 2004 in creating an area of freedom, security and justice (AFSJ), Article 2 and 39 of the TEU, P6_TA-PROV(2005)0227, adopted on 8 June 2005. 38 The separation of powers between the First and Third Pillars as regards judicial cooperation in criminal matters has recently been confirmed by the European Court of Justice. In Case C-176/03, Commission v. Council of 13 September 2005 the ECJ was asked to strike down a Framework Decision which required Member States to create criminal sanctions for the failure to respect environmental norms whose norms are included in a First Pillar measure. The Court held in paragraph 26 that ‘The Council and the Member States which have intervened in these proceedings, with the exception of the Kingdom of the Netherlands, submit that, as the law currently stands, the Community does not have power to require the Member States to impose criminal penalties in respect of the conduct covered by the framework decision’. In paragraph 27 stipulated that ‘Not only is there no express conferral of power in that regard, but, given the considerable significance of criminal law for the sovereignty of the Member States, there are no grounds for accepting that this power can have been implicitly transferred to the Community at the time when specific substantive competences, such as those exercised under Article 175 TEC, were conferred on it. See also Case C-170/96, Commission v. Council [1998] ECR I-2763’. 39 See Protocols added by the Treaty of Amsterdam, Protocol on the position of the United Kingdom and Ireland and Protocol on the position of Denmark, OJ 1997 C340/92114.

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legislative, democratic and judicial control. But it would constitute a derogation from the Union principle of ‘an ever closer Union’, as member states that had accepted the binding effect of provisions in one venue would have the possibility to opt-out of the legal effects of those same provisions simply because it had been moved to another Treaty dimension. The other possibility, if the national ratification requirement could be resolved, might be to create a new Chapter in Title IV TEC to accommodate these fields without engaging the opt-out protocols. A Treaty amendment that would only move judicial cooperation in criminal matters into the EC First Pillar might be possible to negotiate inside the Council not least in light of the ongoing debate about the European Arrest Warrant. Member states might well prefer to have less far-reaching policy measures in these controversial fields but ones that are clearly legally binding in the sense of the EC First Pillarrelated laws, rather than EU Third Pillar ones, which are too wide to be accepted at the national constitutional level.40 The co-decision procedure and the inclusion of the European Parliament in the decision-making process will continue not to apply in all AFSJ policies as far as some of them will remain under the EU Third Pillar framework. It is of course possible that a minor Treaty amendment could be made in order to extend the scope of Article 251 TEC to the Third Pillar. This outstanding possibility has not yet been proposed, but if it is, it would constitute a Treaty amendment, thus requiring ratification by the member states. Some national parliaments, like the ones in the Netherlands and the UK, have struggled to gain participation and a more active role in the development of EU policy. This has been hampered, however, by the lack of a proper legal base on which to do so. Once more, a separate Treaty amendment could enhance their role and competencies over these areas. This would indeed be highly advisable for the sake of democracy in an enlarging Europe. The limitations as regards the jurisdiction of the ECJ could paradoxically be remedied more easily in the EU Third Pillar because under this framework, following Article 35 TEU, the member states can make a declaration recognising the jurisdiction of the Court in Luxembourg over these policies.41 Under Article 35.3.a TEU, member states accept that only courts of tribunals against whose decisions there is no judicial remedy may request the ECJ to give a preliminary ruling. This means that only courts of final instance may refer questions, which is likely to cause substantial delays. Article 35.3.b TEU provides that any court of tribunal in a member

40 For a study on the problems inherent in the rapid development of the principle of mutual recognition and the ways in which these problems might be addressed allowing for full protection of fundamental rights, see S. Alegre and M. Leaf, ‘Mutual Recognition in European Judicial Cooperation: A Step Too Far Too Soon? Case Study – the European Arrest Warrant’, European Law Journal, Vol. 10, No. 2, (2004): 200-217. 41 According to Article 35.2 TEU, ‘By a declaration made at the time of signature of the Treaty of Amsterdam or at any time thereafter, any Member State shall be able to accept the jurisdiction of the Court of Justice to give preliminary rulings as specified in paragraph 1’.

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Table 1. Declarations accepting the jurisdiction of the ECJ in the light of Article 35 TEUa Country

Date

Occasion

Art. 35.2

1 Germanyb

2/10/1997

X

X

2 Austriab

2/10/1997

X

X

3 Belgiumb

2/10/1997

X

X

4 Greeceb

2/10/1997

X

X

5 Luxembourgb

2/10/1997

Signature of the Treaty of Amsterdam Signature of the Treaty of Amsterdam Signature of the Treaty of Amsterdam Signature of the Treaty of Amsterdam Signature of the Treaty of Amsterdam Signature of the Treaty of Amsterdam Ratification of the Treaty of Amsterdam

X

X

6 The Netherlandsc 2/10/1997 7 Sweden

8/05/1998

X X

X

8 Finland 9 Spainb 10 Portugal

X X X

11 12 13

X X X

X X X

X

X

14

10/07/1998 23/12/1998 19/03/1999 Ratification of the Treaty of Amsterdam Italyb 19/04/1999 Franceb 14/03/2000 Czech Republicb 16/04/2003 Signature of the Athens Treaty Hungary 7/07/2004

Art 35.2 Art. 35.3.b

X X X

a This table was kindly provided by the Council of the European Union, Directorate-General H – Justice and Home Affairs, Directorate II – Police, customs and judicial cooperation. The authors are grateful for having received this valuable information. b They reserved the right to include in their national legislation provisions stating that, where a question on the validity or interpretation of an act based on Article 35.1, is raised before a national court or tribunal against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice. c On the 2/10/97 the Dutch Government was examining whether, according to Article 35.3, the faculty to request the Court to give a ruling may be conferred to other courts or tribunals than those against whose decisions there is no judicial remedy.

state may make a request for a preliminary ruling from the ECJ. Thus declarations under Article 35.3.b TEU lead to a quicker resolution of outstanding issues. As the table above shows, a large majority of the ‘traditional’ EU-15 member states has already recognized the jurisdiction of the Court to give preliminary rulings on the validity and interpretation of these acts,42 with the exception of the UK, Ireland 42 The initial declaration made by most of the Member States after the entry into force of the Amsterdam Treaty was included in the OJ 1999 C120/24, (1 May 1999), regarding ‘Information concerning the date of entry into force of the Treaty of Amsterdam’.

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and Denmark. As regards the 10 new member states, only the Czech Republic and Hungary have issued such a declaration.43 Those member states that have not yet made a declaration (either old and new) should be encouraged to do so as a matter of priority. It is unacceptable that there should be such a variable geometry for the sake of rule of law in an enlarged EU. By a simple declaration, these negative limitations to judicial review could be easily resolved. This is not the case in the EC First Pillar, where Article 68 TEC provides for the possibility to submit a request for a preliminary ruling only by a court or tribunal of a member state against whose decisions there is no judicial remedy under national law.44 Finally, the legal force of the Charter of Fundamental Rights of the Union remains one of the most important aspects of the Constitutional Treaty for an AFSJ. When the Charter was adopted in 2000, it was foreseen that a decision would be taken on its legal effects. The Nice Intergovernmental Conference agreed on the Charter and acknowledged in the set of declarations adopted that its status had to be resolved.45 The possibility is always open for the Council to adopt a decision granting legal effects to the Charter. The European Commission’s proposal for monitoring and scrutiny of its proposals for EU legislation in terms of compliance with the Charter of Fundamental Rights does not resolve its lack of legally binding effects or the lack of scrutiny during the overall decision-making process (including the last stage at the Council).46 43 See for example the Treaty of Accession of the Czech Republic, signed in Athens on 16 April 2003. Specially the section on ‘Final Act’, III. Other Declarations, G. Declaration of the Czech Republic on Article 35 of the EU Treaty, which says ‘The Czech Republic accepts the jurisdiction of the Court of Justice of the European Communities in accordance with the arrangements laid down in Article 35.2 and 3.b of the Treaty on European Union. The Czech Republic reserves the right to make provision in its national law that when a question concerning the validity or interpretation of an act referred to in Article 35.1 of the Treaty on European Union is raised in a case pending before a national court or tribunal against whose decisions there is no judicial remedy under national law, that court or tribunal is obliged to bring the matter before the Court of Justice’. 44 See E. Guild, The Legal Elements of European Identity: EU Citizenship and Migration Law, (The Hague, 2004), pp. 182-184. Article 68 TEC establishes that ‘…where a question on the interpretation of this Title or on the validity or interpretation of acts of the institutions of the Community based on this Title is raised in a case pending before a court or a tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon’. 45 See Declarations adopted by the Nice Intergovernmental Conference, Declaration 23 on the future of the Union, says that ‘the process should address, inter alia, the following questions: the status of the Charter of Fundamental Rights of the European Union, proclaimed in Nice, in accordance with the conclusions of the European Council in Cologne’. 46 European Commission, Communication on Compliance with the Charter of Fundamental Rights in Commission legislative proposals – Methodology for systematic and rigorous monitoring, COM(2005) 172 final, (Brussels, 27 April 2005), which states in

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4. Conclusions The foundations of an Area of Freedom, Security and Justice need to be revisited. The common list of complaints associated with this area would have been largely resolved by the Constitutional Treaty. We have pointed out seven main benefits that the Constitution would have offered to the AFSJ. The overall effects of the Constitution would be of a substantial and positive nature. While bringing a ray of light into the whole decision-making process and structure, the Constitutional Treaty would also have facilitated, and positively promoted democratic and judicial accountability which, at the moment, are seriously weak. The mechanisms for operational cooperation in ‘Freedom, Security and Justice’ continue to be fragmented between two separate sectors: the EC First Pillar and the EU Third Pillar. This narrow legal duality would have mostly disappeared, and therefore most of the current vulnerabilities and inefficiencies inherent to the regime would have been corrected. The abolition of the duality in pillars would lead to increasing legal certainty, a set of uniform legal acts, stronger involvement of the European Parliament in the decision-making process, as well as the widening of the ECJ’s jurisdiction to review and interpret these policies. Judicial cooperation in criminal matters and police cooperation, and the Charter of Fundamental Rights of the Union are the core aspects that would have been most affected by the entry into force of the Constitution. First, judicial and police cooperation would be shifted to ‘Community competence’. This innovation would avoid narrow, nationally oriented and nation-state views of the politics and philosophies concerning these areas. It would also ensure a common European policy subject to democratic accountability (by the European and national parliaments) and the rule of law. The loss of a justiciable Charter is among the gravest consequences of the failure of the Constitution, although it is perhaps the easiest to remedy, requiring only a Council decision. As we have seen in this paper, there are a series of examples demonstrating how the current arrangements at EU level do not prevent ‘human rights disputes’. The Charter would help in achieving this fundamental goal. As to the question of whether the AFSJ could be easily brought into the system of the EC First Pillar without the Constitution and a treaty amendment, this paper has answered in the negative. Article 42 TEU provides that the Council shall recommend to the member states to take a decision that action in these areas would move to the First Pillar ‘in accordance with their respective constitutional requirements’. Since many aspects of the EU Third Pillar (judicial cooperation in criminal matters and police) might have profound constitutional implications, some member states may be required to make amendments to their respective constitutional settings before they could actually ratify a decision following Article 42 TEU. In some member

paragraph 6 that ‘the main aim of the methodology is to allow the Commission services to check all Commission legislative proposals systematically and rigorously to ensure they respect all the fundamental rights concerned in the course of normal decision making procedures’.

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states, this may include referenda approving the decision before it could actually take effect. The areas covered by an AFSJ need to be placed in a strong and uniform legal framework which incorporates fundamental rights as norms of Europe. A robust approach is very much needed in order to guarantee a high degree of protection for the individual, and the democratic accountability of each of the legal measures being adopted. It seems clear that there is an increasing need for reform over the institutional and procedural aspects of AFSJ. Whether this will take the form of a Constitution or a Treaty amendment the future will determine.

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Chapter 13

CFSP after the Constitutional Treaty: The Stakes for the Future Udo Diedrichs and Funda Tekin

1. The Debate on the Future of CFSP: The Obsession with the Constitutional Treaty The last years have been a crucial phase for the Common Foreign and Security Policy (CFSP). Apparent failure during the Iraq crisis1, increased heterogeneity in the wake of enlargement, and the present ratification crisis of the Treaty establishing a Constitution for Europe (TCE) – which was triggered by a negative vote in France on 29 May 2005 and an even more dramatic rejection a few days later on 3 June 2005 in the Netherlands – do not sum up to an overwhelmingly positive assessment of the record of Europe’s foreign policy. Now that the entrance into force of the Constitutional Treaty seems to be in real danger, pessimists might state that the stakes for the CFSP and its future look rather dreadful. The EU will probably have to be prepared to live and work with the Treaty of Nice in the coming years, which might lead to new crises and conflicts. Despite – or perhaps because of – these critical developments, the scientific preoccupation with CFSP has flourished over the last years, and has grown into a business of its own.2 The state of CFSP has been the object of intensive discussions in the academic as well as political sphere, but these undertakings have been carried out in a surprisingly modest way with regard to the longer-term evolution of Europe’s foreign policy.3 More than ever, there is a need for a fundamental political debate 1 C. Hill, ‘Renationalizing or Regrouping? EU Foreign Policy Since 11 September 2001’, Journal of Common Market Studies, Vol. 42, No. 1, (2004): 143-163. 2 E. Regelsberger, Elfriede, Die Gemeinsame Außen- und Sicherheitspolitik der EU (GASP), Konstitutionelle Angebote im Praxistest 1993-2003, (Baden-Baden, 2004). R.H. Ginsberg, The European Union in International Politics, Baptism by Fire, (2001). B. White, Understanding European Foreign Policy, (London, 2001). A. Forster and W. Wallace (2000), ‘Common Foreign and Security Policy’, in: H. Wallace and W. Wallace (eds), Policy-making in the European Union, (Oxford, 2000): 461-492. J.-M. Dumond and P. Setton, La politique étrangère et de sécurité commune (PESC), (Paris, 1999). C. Hill, ‘The Capability Expectation Gap, or Conceptualizing Europe´s International Role’, Journal of Common Market Studies, (1993): 305-328. 3 See here as an exception the systematic analysis of CFSP by Regelsberger 2004.

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on CFSP, but also for academic reflection which goes beyond the analysis of recent events, actual crises or short-term initiatives. In this paper, we distinguish four main dimensions of crucial importance to CFSP, which will guide our analysis. Each of them approaches CFSP from a different angle, and highlights distinctive questions and issues. Those dimensions are: 1.1. The strategic dimension: CFSP as foreign policy The apparent difficulty of defining a concrete strategic vision for CFSP is owed to at least two factors: The uncertainty about the political convictions and ideas in the new member countries, and the taboo created after the end of the Iraq crisis,4 meaning that the elementary causes for the serious divergences among the EU countries and within NATO would not be addressed, out of fear to ‘open the wounds’. This could have a rather dangerous impact, as it prevents any substantial reflection on the competing values and ideational systems in foreign policy. So the question seems justified about what strategic orientation CFSP reveals, and in which way it is going to integrate ESDP and provide it with strategic orientation. With the emergence of ESDP, it will be crucial to see whether CFSP has become ESDP-driven, or if it is CFSP which is really able to ‘guide’ ESDP. 1.2. The institutional dimension: CFSP as a system of governance The institutional dimension of CFSP is related to the set of rules, procedures, bodies and the administrative infrastructure designed to make Europe’s foreign policy work. The ratification crisis of the Constitutional Treaty has created a new situation, where it has become uncertain whether the legal base will be reformed. It becomes clear that the Constitutional Treaty has been useful and damaging at the same time: useful as it prescribed an institutional macro-structure of CFSP for the next decade and included some clarifying provisions on the relationship between CFSP and ESDP,5 but also damaging, as it narrowed down the debate on the fundamentals of CFSP and overlooked the institutional potential and options that exist even without the Constitutional Treaty.

4 J. Howorth, ‘France, Britain and the Euro-Atlantic Crisis’, Survival, Vol. 45, No. 4, (2004): 173-192. 5 M. Jopp, E. Regelsberger, ‘GASP und ESVP im Verfassungsvertrag - eine neue Angebotsvielfalt mit Chancen und Mängeln’, Integration, no. 4/03, (2003): 550 ff. U. Diedrichs, M. Jopp, ‘Die Sicherheits- und Verteidigungspolitik der EU nach dem Verfassungsvertrag: Innovationen, Experimente, Impulse’, in: M. Jopp, S. Matl (eds), Der Vertrag über eine Verfassung für Europa – Analysen zur Konstitutionalisierung der EU, (Baden-Baden, 2005), pp. 343-366.

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1.3. The social dimension: CFSP as group-building process The social dimension of CFSP focuses on the relationship among its actors and institutions at different levels, trying to grasp the socialising effects which are in play via processes of ‘Europeanization’ and ‘Brusselization’.6 The daily practice of personal and institutional contacts and exchanges has contributed to the emergence of an ‘esprit de corps’ among the diplomats and EU officials which facilitates decisionmaking and supports the search for common approaches. However, the accession of ten new member countries which will be followed by Bulgaria and Romania in the next years and Turkey’s knock on the door for decades, has put CFSP under heavy pressure. 1.4. The international dimension: CFSP as a concert of states CFSP can be grasped as an institutional system, but it also represents a case of – a special kind of – international relations among its members, embedded into the broader context of its external environment. If viewed from an international perspective, it appears as a concert of state trying to cooperate for dealing with foreign and security policy issues. A key question in this regard concerns the political leadership to be organized within CFSP. As one assumption would hold, we are facing the emergence of a triumvirate in the shape of France, the UK and Germany, taking the basic decisions in CFSP and ESDP, while the rest of the Union will be expected to go along; enlargement might render this development inevitable. The events after September 11th, with the famous trilateral consultations in Ghent in October 2001, and the London dinner event in November 2001,7 but even more the coordination of positions after the end of the Convention with regard to the contested issues in ESDP, the initiative on Iran or the proposal in February 2004 to create battle groups, all have stressed the importance of the Franco-British-German relationship in providing guidance to Europe’s foreign policy. Even without naming it a ‘directoire’, it may have already become a de facto leading group within the European Union. It would go beyond the scope of this contribution to provide an answer to these questions, but at least some light can be shed on the basic options and scenarios for the future of CFSP.

6 B. Tonra, The Europeanisation of National Foreign Policy, Dutch, Danish and Irish Foreign Policy in the European Union, (Aldershot, 2001). 7 J. Howorth, ‘European Defence and the Changing Politic of the EU: Hanging Together or Hanging Separately?’, Journal of Common Market Studies, Vol. 39, No.4, (2001): 765789.

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2. The Strategic Dimension: Security as the Key Concern? The booming academic industry dealing with ESDP8 has contributed to generating the impression that CFSP would be increasingly absorbed by security and defence, or put more positively: that CFSP has finally found a field of vocation and operation where it could play a relevant role in the world well beyond the mere rhetoric of diplomacy. Although the TCE has made clear that ESDP is an integral part of CFSP (Article I-16.1 TCE), a key question is: Has the preoccupation with security and defence meanwhile – especially since the attacks of 9/11 and Madrid on 11th March 2004 – overshadowed the fact that CFSP is more than the institutional framework for ESDP? The fact that the EU has so far not been able to present a European Foreign Policy Strategy as a complementary and embracing concept to the European Security Strategy (ESS), is a telling case and might reflect the lack of consensus on broader foreign policy issues, but if this is the case then even security policy is not in a enviable shape. Nevertheless, the ESS can be regarded as a highly positive achievement after the Iraq crisis.9 The elaboration of a European approach is based on a comprehensive concept of security, including a broad range of the challenges on all levels. This approach also tries to take account not only of the military dimension of threats, but also of their root causes and the underlying social and economic conditions which might lead to instability, extremism, or terrorism. A combination of civilian and military means in a long term preventive time frame is regarded as the best way for avoiding the emergence of threats and challenges to the EU’s security (European Security Strategy 2003). At the core of the EU approach to tackle problems of security lies the concept of ‘effective multilateralism’, which stands in contrast to the US approach of unilateralism in case of need, or of building coalitions of the willing. It includes a clear commitment to international organizations like the United Nations, which is regarded as important source of legitimacy for foreign and security policy actions.10

8 T. Garden, ‘The Future of ESDP – Defence Capabilities for Europe’, The International Spectator, vol. XXXVIII, No. 3, (2003): 7-15. A. Deighton, ‘The European Security and Defence Policy’, Journal of Common Market Studies, Vol. 40, No. 4, (2002): 719-41. G. Andréani, C. Bertram, C. Grant, ‘Europe´s Military Revolution’, Centre for European Reform, (London, 2001). E. Brimmer (ed.), The EU’s Search for a Strategic Role, ESDP and its Implications for Transatlantic Relations, (Washington, D.C., 2001). M. Jopp, ‘Gemeinsame Europäische Sicherheits- und Verteidigungspolitik’, in: W. Weidenfeld, W. Wessels (eds), Jahrbuch der Europäischen Integration 1999/2000, (Bonn, 2000), pp. 243-250. S. Duke, The Elusive Quest for European Security. From EDC to CFSP, (Oxford, 2000). 9 Hill, ‘Renationalizing or Regrouping?’. 10 R. Hunter, ‘The US and the European Union: Bridging the Strategic Gap?’, The International Spectator, Vol. XXXIX, No. 1, (2004): 35-50. A. J.K. Bailes, ‘The Institutional

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In particular due to threats such as terrorist attacks, which have been dominating international security for the past years, the focus on ESDP and mutual defence is not a wrong one, but it should not be forgotten that we need a broader approach to CFSP reaching beyond these questions, including a vision for a world order and a common approach towards global opportunities and challenges. Although the ESS includes the economic dimension of international trade relations, it will not be able to substitute a broader and more fundamental European Foreign Policy Strategy. Such a strategy should aim at an overall positioning of the European Union as an international actor, include principles, objectives, priorities, and strategies, linking the different aspects and dimensions of EU external relations into a common framework and be more concerned about the operational dimension. In this context, elements like the European Neighbourhood Policy (ENP) could be integrated into a broader context, and also the Treaties could in the future be ‘relieved’ from providing too detailed provisions on objectives, principles or instruments which belong less to the constitutional level, but rather to the strategic or operational one. 3. The Institutional Dimension Revisited: Living without the Constitutional Treaty The present state of ratification of the TCE has created fears of a failure that could bring the whole integration process to a halt or even worse- it could cause a dramatic crisis. The negative outcome of the referenda in France and the Netherlands seem to confirm this scepticism. However, the real danger in our view does not lie in the failed ratification of the TCE as such, but in the wrong lessons which could be drawn from failure by the political leaders in Europe. The ‘obsession’ of the academia and political class with the Constitutional Treaty might have contributed to a negligence of important aspects of foreign and security policy cooperation within the EU. It seems that without the Constitutional Treaty there would be no future for CFSP and more particularly for ESDP. This seems to be not only a wrong impression but in the light of the failing ratification process an unhealthy approach. What is needed in the first place is a sober and relaxed assessment, moving away from apocalyptic assumptions in the sense that Europe would be finished in case the TCE did not enter into force.11 This position does not deny that the TCE would bear positive implications for CFSP, beyond doubt. But it is something different to focus on the TCE as if it were an option without alternative. There would indeed be alternative options in CFSP if the TCE did not enter into force. Reform of ESDP and Post-Prague NATO’, The International Spectator, Vol. XXXVIII, No. 3, (2003): 31-46. 11 A prominent example of this obsessive radicalism came from Commissioner Margot Wallström who said in a speech at the former Czech concentration camp of Terezin: ‘There are those today who want to scrap the supranational idea (of the EU and) go back to the old purely inter-governmental way of doing things. I say those people should come to Terezin to see where that old road leads’.

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The vote must be accepted under any circumstance, and we should be ready to acknowledge that apparently the EU does not have the backing of a majority of the population. But still, moods and preferences may change, so it would be premature to forecast the ‘end of integration history’. We should also have a look at the main reasons for the rejection of the TCE; according to a poll undertaken immediately after the vote, the following items were mentioned as the most important reasons for the no-vote in France (Le Monde, 31 May 2005)12: 1. 2. 3. 4. 5.

1unemployment (46%) general political dissatisfaction with the current situation (40%) a no will enable a renegotiation of the TCE (35%) The TCE is much too liberal (34%) TCE is too difficult to understand (34%)

Remarkably, 80% of the no-voters think that France has not been weakened by the rejection of the TCE within the European Union. With regard to CFSP, a sober and relaxed stance would be appropriate under these conditions. There has been no rejection of the TCE in France or the Netherlands as far as we know based upon disagreement with relevant provisions concerning the CFSP. This seems to be a first key conclusion to be drawn from the polls available after the ratification disaster. Second, there are at least some possibilities for translating relevant elements of the TCE into political reality if the member states wish to do so, even without ratification.13 In the following, we will present the main innovations of the TCE with regard to CFSP and try to assess the possibilities for introducing some of these elements even without a ratification of the TCE. The Constitutional Treaty has so far been exhaustively analysed and assessed by experts and observers.14 In spite of the recent uncertainty regarding the fate of the TCE it is highly fascinating to have a closer look at some elements and to assess the possibilities for their realization even without the ratification of the Constitutional Treaty. The Union Minister of Foreign Affairs (Article I-28 TCE) as one of the major innovations of the institutional set up of CFSP would have been subject to a so 12 The question was: ‘Parmi les raisons suivantes, quelle sont celles qui vous ont les plus pousser à voter non?’ [Among the following reasons, which ones push you more to vote ‘no’?] 13 S. Kurpas, ‘What could be saved from the European Constitution if Ratification Fails? The Problems with a Plan B’, CEPS Policy Brief No. 70, (2005). 14 Diedrichs and Jopp, ‘Die Sicherheits- und Verteidigungspolitik der EU’. Jopp and Regelsberger, ‘GASP und ESVP im Verfassungsvertrag’. W. Wessels, ‘Eine institutionelle Architektur für eine globale (Zivil-) Macht? Die Artikel zur Gemeinsamen Außen- und Sicherheitspolitik des Vertrags über eine Verfassung für Europa’, Zeitschrift für Staats- und Europawissenschaften, No. 3/2003, (2003): 400-429.

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called ‘double hat’. According to the TCE, he was foreseen to be Vice President of the European Commission and Chair of the Foreign Affairs and External Relations Council at the same time. The list of functions applied to the post of the foreign minister is impressive. Apart from the external representation of the Union he was designed to be particularly responsible for conducting CFSP and providing initiatives, including for ESDP (Article I-28.2 TCE), and for coordinating the area of external relations within the Commission (Article I-28.4 TCE). Particularly in ESDP he would have been responsible for coordinating civilian and military aspects of crisis management (Article III-307.2 and III-309.2 TCE). The creation of the post of a foreign minister might lead to a higher degree of efficiency and effectiveness in the EU system of external action. The continuity of the EU external representation could be improved, but it should not be overlooked that the Union Minister of Foreign Affairs will be much more than an upgraded version of the High Representative (HR). Thus, the decision to have Javier Solana occupy this post does not seem to have been an optimal one. From an institutionalist perspective, it can be questioned if it makes generally sense to nominate a person as foreign minister who has either served as HR or as commissioner. If the nature of the foreign minister as a truly innovative combination of both institutional profiles is taken seriously, the incumbent should not have belonged to either institution (Commission or Council) before. Regarding the post of a foreign minister, it would be extremely difficult to create such a post without Treaty changes. According to the actually relevant Article 213.2 of the Treaty establishing the European Community (TEC) the ‘Members of the Commission may not, during their term of office, engage in any other occupation, whether gainful or not’. This would make a combination of Commissioner for external relations with the post of Secretary General of the Council and High Representative for CFSP rather improbable. On the other hand, the Council could possibly without Treaty change enhance the tasks of the High Representative; it should thus be checked if the Presidency could delegate to him the chair in the Foreign Affairs and External Relations Council on a regular basis; he could also be allowed to participate in the Commission College meetings, which the Commission rules of procedure would permit (Article 10 of the Commission Rules of Procedure). A regular participation of the HR in the Commission, coupled with a more intensive cooperation of the Council with the Commission, could lead to a kind of ‘engrenage’ that would remain below the level of ‘double hatting’, but go well beyond the institutional parallelism practiced so far. Forms of flexible cooperation have been intensely discussed throughout the history of integration.15 The enlargement of the European Union has added to this discussion about capable member states going ahead inside or outside the EU framework. In this sense, Article I-41.6 TCE provides that ‘those Member States 15 Diedrichs and Jopp, ‘Flexible Modes of Governance: Making CFSP and ESDP Work’, The International Spectator, No. 3, pp. 15-30.

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whose military capabilities fulfil higher criteria and which have made more binding commitments to one another in this area with a view to the most demanding missions shall establish permanent structured cooperation within the Union framework’. The Protocol on permanent structured cooperation annexed to the TCE defines a number of objectives like the creation of combat units until 2007 which must be fulfilled by all member states participating, and also enumerates a number of fields where increased efforts for coordinating member state activities should be undertaken.16 From a perspective of strengthening the common institutional framework, in which permanent structured cooperation could help to advance the integration process, the search for intra-EU solutions should be taken as a priority now that the future of the Constitutional Treaty is more unpredictable than ever. But such mechanisms need to be organized in an identifiable, effective and transparent manner. As one option, the Headline Goal 2010 could be amended or enhanced so that all objectives and activities of the permanent structured cooperation would find a coherent foundation. This means that structured cooperation would not serve as a way of differentiation, but as a common project for all EU states. If we take the creation of the battle groups as a key element in this context, there is a real possibility of reaching an overall solution. The capability conference from November 2004 defined 13 battle groups in which nearly all EU states participate either by offering troops or niche facilities. This process should be driven further, similar to the commitments undertaken by the member states for the European Rapid Reaction Forces (ERRF). If it proves impossible to anchor the backbone of structured cooperation within the EU, there could be a tendency of choosing to cooperate outside the European Union framework in flexible ad hoc coalitions, which might further weaken the EU and CFSP as a whole. The danger exists, and there should be no illusion about the potential for erosion. The European External Action Service (EAS) was intended to assist the Union Minister of Foreign Affairs in fulfilling his mandate (Article III-296.3 TCE). Even without the ratification of the TCE, the external service could be created and would not necessarily require a change of primary law; thus, the Council and the Commission could conclude an inter-institutional agreement with the purpose of establishing a common framework for integrating civil servants from both bodies into this new service.17 Still, the primary problem would lie in the political authority for such a service. It would remain unclear if the Commisison or the Council bears the political responsibility for the service, or if it would have to be shared between both, which could cause inter-institutional tensions and conflicts. In any case it would not make sense to create a service as an institutional ‘torso’. Other elements of the TCE like the enhanced Petersberg tasks could possibly be agreed upon in a pragmatic way, by defining the objective of a military mission 16 Diedrichs and Jopp, ‘Die Sicherheits- und Verteidigungspolitik der EU nach dem Verfassungsvertrag’. 17 S. Kurpas, ‘What Could be saved from the European Constitution if Ratification Fails?’.

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according to the needs arising in the specific situation, and there is no formal reason to assume that the existing Petersberg list would be exhaustive. More tricky is the question of the mutual defence clause; here, two basic options are available: either leave it without such a clause, or to rely heavily on the WEU, which then could be – at least temporarily – reinvigorated in order to provide for the legal basis and offer a framework for implementation. A third option, a core group outside the EU, like the Franco-German idea of a European Security and Defence Union (ESDU), that would be built around such a mutual defence clause, does not seem to be a likely option at the moment, as it would further contribute to dividing the EU countries and could also impair the success of Franco-German initiatives within the Union. The creation of the defence agency has been agreed and implemented already independent of the ratification of the Constitutional Treaty. Thus, a crucial element for ESDP in coordinating military procurement, promoting the capability improvement and pooling research and technological development has already become reality and will shape the course of Europe’s security policy in the next years. The defence agency will probably become the institutional core for the capability improvement process in ESDP, and could, over time, develop into a more effective instrument for pooling resources in research and procurement. The nature of CFSP with or without the prospective conclusion of the TCE still be a ‘mixtum’ – a category of competencies of its own, but still no one should be surprised that the fundamental direction would be clearer if the Constitutional Treaty is ratified: There can be no doubt that the TCE would exert a dynamic effect not only as a legal text, but also as a source of political ambition and inspiration. It could endow political actors with new potential for creative visions, and it is able to de-legitimize the narrative of national interests in foreign policy. It is this symbolic dimension which more than any strictly legal provision could trigger off a process of continuous ‘federalization’. However, it is also clear: however wishful the TCE might be regarded, CFSP could be further developed even without it. The future course of CFSP does therefore not only depend upon the ratification of the Constitutional Treaty, although there is the symbolic dimension which still counts and which would suffer in case of a failure. 4. The Social Dimension: Finding a New Group Identity for CFSP The social dimension of CFSP seems to be an issue which has attracted rather little interest among policy-makers in Brussels, although it acquires an enormous amount of importance. In this respect, an event like enlargement is not primarily about integrating new members into the EU and adapting them into the existing foreign and security policy system, it is much more about the emergence of new patterns of interaction and communication between all member states, trying to define a

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common project and to shape a collective identity for a Union which has become more heterogeneous and multicoloured.18 This dimension is not just about the institutional provisions on efficient procedures or effective instruments, nor is it just centred around a political bargaining process in which the leadership of CFSP is at stake, or about the strategic orientation of the EU towards the international environment; it is a fundamentally interactive process among the members of the European Union themselves, which is designed to contribute to the development of a common understanding of what binds them together and what might distinguish them from the outside world, a sense of ‘esprit commun’, fed both by communication processes, and leading into the direction of social group-building.19 Enlargement does not primarily create problems of size or scope, but of identitybuilding and the formation of a new collectivity that has to find new interpretations for the mutual relationship of its component parts, which does not only include member states, but also civil society, NGOs, diplomats or military actors, international organizations and institutions. In CFSP, there is little knowledge about the ideas and identity-building processes in the new member states, nor any substantial mechanism of redefining or reshaping intra-group behaviour. Adaptation is just not sufficient for integrating the new CFSP into a coherent ensemble of actors. On the other hand, the consensus-machinery is limited to work with much less time and less room for communication. Additionally, early analyses of the referenda outcomes in France and the Netherlands also seem to hint at strong resistance among the population against enlargement, which could be taken up by the political elites in some member states, creating an opposition to further accession in the next years; it could also lead to stronger resentment between old and new members in the already existing EU. If an anti-enlargement mood builds up in the next months as a result of the referenda and the ratification crisis, the process of EU-wide socialization and Europeanization could be at least slowed down, if not blocked. 5. The International Dimension: The Need for Leadership It would be unbearable for the EU to pass through a tortuous phase of ratification referenda in a number of EU countries, always being unsure about the outcome. Now that France and the Netherlands have voted ‘No’, it seems that the ratification process will not die of age, but rather be aborted. Even more than before, the EU needs a strong political impulse for defining its basic direction. This also applies for CFSP. After the Iraq crisis, there are even signs that the political background has substantially changed in the EU, particularly due 18 M. Ortega (ed.), ‘Global Views on the European Union’, EU Institute for Security Studies, Chaillot Paper, No. 72, (Paris, 2004). J. Batt et al., ‘Partners and Neighbours: A CFSP for a Wider Europe’, EU Institute for Security Studies, Chaillot Paper, No. 64, (Paris, 2003). 19 U. Schmalz, Deutschlands europäisierte Außenpolitik, Kontinuität und Wandel deutscher Konzepte zur EPZ und GASP, (Opladen, 2004).

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to domestic political conditions in Italy, Spain and the UK. Tony Blair has paid the price for his solidarity with the US, and any future Labour premier will probably be highly cautious in incurring the risk of getting entangled in a military operation without securing the support of the population. Second, there will be an extremely high threshold for any future operation of the kind of Iraq, due to the discredited reputation of the US and the Bush administration in the UK. In Spain, the new socialist government after withdrawing the troops from Iraq has made it clear that the country would not participate in or support any military intervention in other countries of the region, while in Italy after the tragic events in relation with the death of secret service agent Nicola Calipari, the public mood strongly sharpened against the Italian participation in Iraq, putting the Berlusconi government under heavy political pressure. Under these conditions, the former pro-US camp has been considerably weakened, due to mainly domestic public opinion or electoral change occurred in connection with the Iraq crisis. This does not mean however, that the inversion of the argument would hold true, namely that France and Germany appear as particularly strong at the moment. On the contrary, the former function of the Franco-German couple as a political engine has been largely lost in the turmoil over Iraq and the debates of the Convention. The result could be a rapprochement between the Big Three (France, Germany and the UK) in defining and deciding upon the basic choices of CFSP. The creation – most probably informally – of such a leading group would face resistance mainly from three sides with slightly different interests: first of all, the EU institutions, in particular the High Representative will dislike such a group as it would cut him off the inner circle of decision-making in CFSP. Second, the smaller countries would fear a domination by the bigger ones, and would support an institutional approach or a strictly consensus based approach within CFSP. Thirdly, the middle-range powers like Spain, Italy, and Poland would resent the creation of a ‘directoire’ mainly because they are not part of it, revealing an inferiority complex. At the moment, all three leaders in question – Blair, Schröder and Chirac – seem much too weak for providing the necessary leadership. Blair has been substantially weakened by the last elections and might be replaced by Gordon Brown somewhere next year, Schröder might not survive elections in September, and Chirac has been put under enormous pressure after the referendum disaster on 29 May. Thus, it has to be awaited whether in those three countries new leaders will emerge who could commonly inject a fresh impulse to the CFSP. If not, there will be a clear lack of orientation and coherence in Europe’s foreign policy. 6. Where to Go from Here: Options and Scenarios It is not fully clear in which direction CFSP will develop. After recent events, there are at least three plausible scenarios which describe the path of the coming years. Each of them reveals a certain degree of credibility.

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Lessons Learned: After Iraq, Europe will grow together and find a more coherent foreign policy. The EU will digest the failure of the TCE and exploit the limited possibilities offered by the Nice Treaty in implementing institutional reforms, generating higher coherence between the Council and the Commission in foreign policy, enhancing the Petersberg tasks and integrating permanent structured cooperation into the existing set of ESDP mechanisms. The lessons of Iraq would lead the member states into more solidarity and less unilateralism, furthermore the Commission and the Council, particularly under the initiative of the High Representative, would be able to enhance effectiveness and efficiency. After a period of some years, the TCE could be reintroduced to the agenda and become ratified, once the political and socio-economic environment in the Union has changed to the better. Fragile Constellations: CFSP will muddle through and suffer from some serious problems in consistency and coherence, without causing major turmoil. In a second scenario, CFSP will have to work under the Nice Treaty, but not succeed in fully managing the institutional and procedural problems linked with the enormous pressure created by enlargement and the insufficient legal provisions. The member states would try to design solutions inside and outside the Treaties, building groups of the willing and the capable for driving a number of initiatives forward, but without systematically developing a common framework. CFSP would not die, but would oscillate between phases of regular functioning (in organising daily diplomatic exchange and in managing smaller crisis-management operations), but would disappear from the scenery once a major crisis emerges. Thus it would remain a semi-successful exercise of coordinating national foreign policies. The Incremental Decline of CFSP: The End of Europe’s Foreign Policy. Even worse, the third scenario would claim a negative evolution of the integration process triggered by the failure of the TCE and the unmanaged problems in national political systems. Under this perspective, CFSP would increasingly become less coherent and effective, while member state foreign policy would try to adjust to the international environment without necessarily adopting common European approaches. The lack of leadership, institutional impasses, strategic lack of orientation and the inability of the member states to ‘grow together’ as a group would contribute to a ‘renationalization’ of foreign policy20 and to a serious crisis of CFSP. At the moment, each of these scenarios would have some credits. We assume that the basic features of CFSP will probably remain intact, and no revolutionary change is to be expected. But a clear political push is required, for providing orientation and optimism that CFSP is alive and well. Even the Constitutional Treaty would not have transformed Europe’s foreign policy into a full-fledged federal system. CFSP is neither a classical international regime nor an alliance. Although the probable nonratification of the TCE has not made life easier for the construction of a Common Foreign and Security Policy, it has neither closed all doors for further development. The EU should be aware that CFSP reveals some other dimensions than the 20 Hill, ‘Renationalizing or Regrouping? EU Foreign Policy Since 11 September 2001’.

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institutional one which are also of high relevance and for which the Constitutional Treaty wouldn’t have offered all solutions anyway. Therefore there is no reason for depression.

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JUSTICE

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Chapter 14

Transparency, Justice and Territoriality: The EU Border Challenge Juliet Lodge

1. Introduction The EU external borders symbolize a common security identity. The establishment of an EU border agency – FRONTEX based in Warsaw- is based on many premises.1 These concern administrative efficiency gains designed to enhance operational efficiency and effectiveness, and promote and realize judicial cooperation within and across agencies, and within and across the member states borders to consolidate and securitize the EU common border. The rationale for introducing the associated measures is derived from that of the Single Market. The justification for doing so that is badly communicated to the public and EU citizens rests on claims about the impact these new measures will have on (i) combating illegal movement of people – the associated issues of the criminalization of economic refugees, asylum seekers etc; and (ii) enhancing the EU’s ability to combat international organized crime, and international terrorism.2 The instruments adopted to facilitate these structural steps rest on (i) new legislation and measures – like FRONTEX, the European Evidence Warrant and European Arrest Warrant, whose constitutionality is increasingly contested;3 (ii) new processes of human cooperation, exchange of professionals – an Erasmus 1 Council Regulation(EC) No 2007/2004 of 26 October 2994 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the member States of the European Union, OJ L349, (25 November 2004), p. 1-11. 2 Commission of the European Communities, Memorial Report dedicated to victims of terrorism, (March 2005), SEC(05) 272. 3 EurActiv.com 19 July 2005 report on Germany’s Constitutional Court ruling against the extradition of a terrorist suspect under the EAW as unconstitutional. Dual nationals may not be extradited under German law. The Court argued that the EAW infringed rules governing freedom from extradition and said Germany’s implementation contravened basic rights. A new German law incorporating the EAW was needed to facilitate this. On the legal issues raised by the e-evidence see M.V.P. Asinari, ‘Legal Constraints for the Protection of Privacy and Personal Data in Electronic Evidence Handling’, International Review of Law, Computers and Technology, 18(2004): 231; and O.Leroux, ‘Legal Admissibility of Electronic Evidence’, Ibid., 8(2004): 193.

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exchange programme for police, immigration, asylum, legal agents, judiciaries etc -; and (iii) ICTs. Hence the growing rows over biometrics. The latter are emblematic of contestation over security and borders, especially following the acceleration of measures after the 7 July 2005 London terrorist bombings. They signal the irrelevance of internal territorial borders (in non-territorially defined cyber-space), but their successful implementation rests on seemingly contradictory premises: (a) the irrelevance of borders to effective judicial and police cooperation (within and beyond Schengen) and (b) the retention and strengthening of cooperation of the very authorities charged with maintaining and policing intra-EU as well as the EU’s territorial external borders. The EU is coupling traditional steps to border controls – like a border guard – with non-traditional steps to managing non-territorially defined space – ICTs. This produces sometimes contradictory policy directions and differences over which might be seen as a flanking measure and which as a core activity. For example, an ICT advocate, the UK, initially opposed the proposed border guard in 200220034, but by 2005 accepted the security rationale behind the border guard having nevertheless elevated ICT applications to security as a core aim. Moreover, biometric identifiers are the forensic adjuncts to augmenting the EU’s immigration and asylum policies, and especially the counter-terrorism and JFS strategies. This paper focuses on them. The arguments over biometrics illustrate the opacity of EU steps to heighten security, freedom and justice; and the challenge they pose to understanding democratic accountability in non-territorial space as exemplified in the proximity paradox. This paper begins by briefly looking at a core supposition underlying much of the argument. It then focuses on the particular challenge posed by the roll-out of biometrics under the JFS where transparency and accountability provisions are 4 House of Commons European Scrutiny Committee, The EU’s Justice and Home Affairs Work programme for the next five years, 28th Report of session 2003-04, HC42-xxvii, London, 14 July 2004, p.3 The EP initially also favoured burden sharing by means of joint action and strengthening Schengen to enhance border cooperation, but then accepted a new agency to carry out border checks, a Community operational structure to improve the protection of external borders External Borders Agency (OJ L 349/1, 25 November 2004); European Parliament, Committee on Citizens’ Freedoms and Rights, Justice and Home Affairs DRAFT REPORT on the communication from the Commission to the European Parliament and the Council in view of the European Council of Thessaloniki on the development of a common policy on illegal immigration, smuggling and trafficking of human beings, external borders and the return of illegal residents. Rapporteur: Hubert Pirker, 2003/2156(INI), (14 October 2003). Commission of the European Communities, Proposal for a Regulation on the creation of an ‘Agency for the Management of Operational Co-operation at the External Borders’, COM(2003) 687, (11 November 2003). Feasibility study on the control of the European Union’s maritime borders (‘CIVIPOL’), 11490/1/03, (19 September 2003), http://register. consilium.eu.int/pdf/en/03/st11/st11490-re01en03.pdf. Border Guard training, Document no 12570/03, (16 September 2003), http://register.consilium.eu.int/pdf/en/03/st12/st12570en03. pdf.

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inadequate. It goes on to examine how the EU has tried to meet the transparency challenge as it securitizes the external border; and concludes with comments on the proximity paradox. 2. The Contingency of Transparency Typically the idea of transparency is evaluated from a perspective of traditional assumptions about transparency as a leit motif of democratic accountability as expressed in democratically elected and legitimate representative institutions.5 When this conception is applied to JFS areas, the deficiencies in institutional practice are glaring. Such deficiencies lead to two main lines of argument: one derived from the need to improve democratic practice and formal structures of open democratic accountability, exemplified by calls for greater national and supranational parliamentary control, and reference to judicial authorities. This is tied to discourse on civil rights and liberties.6 The second conception is more obscure and relates to administrative aspects of transparency. It is far more limited and is justified by reference to operational necessities whose realization, it is claimed, are the pre-condition to the member states acting in solidarity to enable the EU to deliver security, freedom and justice to its citizens. This is clearly shown by the July 2005 proposal for a Council Decision on improving police cooperation especially at the internal borders. It is explicitly confirmed in its impact assessment of the measures envisaged to amend the Convention implementing the Schengen Agreement. It states that the direct aim is to ‘contribute to the implementation of Articles 2 and 3 of the Charter of Fundamental Rights which state that everyone has the right to life and physical integrity’. The promotion of cross border law enforcement cooperation while respecting different legal traditions is therefore justified as is, according to the Commission, the processing of data in accordance with Article 8 of the Charter.7 Legislation on the protection of individual rights provides a framework for a gamut of additional measures from individual rights in respect of administrative practices of good governance to be upheld by the EU ombudsman and national ombudsmen to codes of practice for public sector agencies and a rolling programme of proposals to ensure that those implementing cooperation among judicial and law enforcement agencies (including customs and migration) are made politically answerable for their actions. The proposal, therefore, to bring the Police Chiefs Task 5 J Lodge ‘Transparency and EU Governance: Balancing Openness with Security’, Journal of Contemporary European Studies, 11, (2003): 91-118. 6 E. Guild, ‘The Variable Subject of the EU Constitution, Civil Liberties and human Rights’, European Journal of Migration and Law, 6(2005): 381-94. 7 Commission of the European Communities, Proposal for a Council Decision on the improvement of police cooperation between the Member States of the European Union, especially at the internal borders and amending the Convention implementing the Schengen Agreement, COM(2005) 317, (Brussels, 18 July 2005).

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Force within the EU Council structures is a step in the right direction but many others are needed, for example regarding the accountability of the EU’s Counterterrorism Co-ordinator. There is a clear need for policy in respect of all elements of counter-terrorism and security to be made subject to co-decision. It is clear that efforts to combat international organized crime are so entwined with the internal and external security agenda that it is no longer sensible to pretend that they can be adequately separated. This is one of the reasons why ejudicial cooperation as a means to enhancing cooperation among the various agencies proves to be an attractive concept and operationally seems appealing on the surface. The technique of seeking greater exchange of information is seen as a remedy to multi-agency duplication, ambiguity, contradictions and diversity pending a refinement of institutional and structural arrangements. But it highlights the structural inadequacies and the attendant real risks of inter-operability without sufficient safeguards. That is why there has to be vigilance as to the meaning and application of the principles of transparency, availability, subsidiarity, solidarity, proportionality and fitness-for-purpose. 2.1. From the ideal of fundamental rights to the reality of transposing transparency into practice There are significant problems is disentangling the genuine ideal of guaranteeing fundamental rights and offering transparent policymaking with the reality of transposing the transparency ideal into practice, especially when this is coupled with the introduction of ICT-based information exchange of biometric personal data. Transparency is portrayed as a structural issue, a problem of accountability and one best remedied through a variety of different processes. The transposition of transparency into practice is confusing and confused and especially difficult to transpose in the context of cross border cooperation and multi-agency muddle. The principles underpinning cross border cooperation in the JFS area are: transparency, subsidiarity, proportionality and equivalence. Article 61 of the Treaty establishing the European Communities (TEC) and 29 of the Treaty on the European Union (TEU) justify a common policy on, inter alia, cross border security cooperation. Since borders are permeable and member states’ law enforcement agencies interdependent and jointly responsible for the security of the EU, this proposal seeks to bring the ‘different forms and features’ that developed since the Schengen Convention entered into force ‘under one transparent framework’ to avert uneven law enforcement and imperilling the level of security of citizens. Accordingly, the Decision lays down ‘general rules to promote strategic and operational cooperation’ between the Member states’ law enforcement authorities, and increases ‘the level of security of the citizens of the EU’. It is argued that transparency is honoured structurally because the Decision ‘subsumes in a transparent framework furthering future development, the common cross border cooperation principles and practices that emerged in the course of the last decade in the context of Schengen’, and the operation of the area of freedom, security and justice.

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Providing a ‘transparent framework’ is a step in the right direction. This offers at a minimum budgetary clarity. The framework, however, is not consistent with traditional understanding of transparent, democratic accountability. Rather it relates to qualitative evaluation by peer review in order to develop consensus on commonly agreed principles to achieve an equivalent high level of security to avoid shifts in crime patterns and negative collateral effectives for national security. This laudable goal is the JFS equivalent to the Internal Market programme goal of averting ‘screw driver operations’ and displacing high standards with lower ones. It is still in its infancy and geared to developing common cooperative structures, best practice and continuous improvement at the operational level in order to enable member states if they choose to cooperate to use common standards to improve cooperation, coordination and information exchange. These are essential. Common principles and structures leave operational aspects to the discretion of the member states who remain free to apply higher measures for security while being bound by the principles of common minimum standards with regard to sufficient law enforcement capabilities in border regions to address crime in an equivalent manner. 2.1.1 Transparency as minimum standards of operation Article 6 of the decision entails an obligation to establish permanent cooperation structures in border regions. It would be disingenuous to suppose that consular offices will be immune from this given their visa and passport remits. Central to this is improved police, customs and borders cooperation and a comprehensive and coherent exchange of information (as per Article 39 of the Schengen Convention, and on the basis of the principle of availability) ‘without having to make or channel the request via the judicial authorities’. Permanent structures are to be set up to promote cooperation, coordination and monitor underlying processes. Article 3.f and 3.g refer to the identification of persons, and transmission of criminal intelligence from databases or files controlled by the authorities subject to compliance with the relevant provisions governing data protection. Article 4.1.b gives Member States responsibility for the examination of compatibility and inter-operability of equipment – in particular communication and surveillance technology. Article 4.2 requires them to make all relevant information available to the permanent cooperation structures within the meaning of Article 6.1, and including the updating the 1998 Handbook on cross-border police cooperation.8 In practice, to give effect to this an Article 6 Committee is set up with member state representatives and chaired by the Commission. The set up is transparent. The decision-making process is opaque: the Committee adopts its own rules of procedure based on those of comitology committees, and takes decisions by qualified majority voting (QMV) to provide its ‘opinion’ on measures put forward by the Commission under article 205.2 of the TEC. Only if the Commission’s viewpoint and that of the Committee do not coincide is reference made to the Council proper which may act

8

OJ L239, 22 September 2000 p. 408

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within two months by QMV. The European Parliament merely has the right to be informed in those instances where the Committee and Commission disagree. The test of transparency as structural democratic accountability to elected representative institutions is not met. Without appropriate constitutionally entrenched democratic safeguards, there is an even more urgent need to introduce quality and conformity arrangements to try and ensure that citizens are subject to equal treatment, can expect a common high level of justice, and can rely on their civil liberties, human rights and democratic responsibilities and obligations being safeguarded effectively. 2.1.2. Transparency as efficiency gain: rhetoric versus reality Transparency in JFS is presented by the Commission in a way that measures it against criteria of administrative efficiency and operational effectiveness. This is especially problematic in respect of the JFS border cooperation because two primary elements of public mistrust towards governments is triggered: (i) generalized unease with a sense of creeping distance between the governed and governments and their agents; and (ii) concern as to the goals and impact of ICTs being applied by faceless agencies of governance within understood territorially defined space to the automatic transmission of sensitive personal data, including biometrics to others across traditional territorial borders, and to those accessing and manipulating such data in an unknown functionally defined cyber-space. This compromises the reception and acceptability by the public of seemingly rational Commission proposals employing ICTs to territorial cross-frontier management regimes and to functionally define borderless judicial and police cooperation. No matter how ‘transparent’ the structures or codes for doing this are, the ‘hidden’ or ‘non-transparent’ intent as to what happens next perplexes the public.9 While the Commission rationalizes measures and instruments to ensure that its asserted efficiency and effectiveness gains are met, the public neither trusts the ICTs, nor those promoting their use for vague ‘security’ purposes10 or even for health and medical efficiency gains. New measures to track cross-border movements of explosives and transport are essential but not sufficient to prevent security breaches.11 9 The association IRIS (Imaginons un réseau Internet solidaire) demanded withdrawal of the INES project (Identité nationale électronique sécurisée) regardless of the safeguards offered by the CNIL (see http://www.iris.sgdg.org/info-debat/comm-ines0505.html). With the LDH (Ligue des droits de l’homme), le SM (Syndicat de la magistrature), le SAF (Syndicats des avocats de France), l’intercollectif DELIS (Droits et libertés face à l’informatization de la société) et l’AFJD (Association française des juristes démocrates), it renamed the project Inepte, Nocif, Effrayant, et Scélérat and called on a public petition to withdraw the project. (See www.ldh-france.org). 10 J Lodge, ‘EU Homeland Security: Citizens or Suspects?’ Journal of European Integration, (26 September 2004): 153-80. 11 Commission of the European Communities, Proposal for a Council Regulation on the establishment of a regime of local border traffic at the external land borders of the Member States, COM(2003) 502, (Brussels, 14 August 2003).

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Moreover, while more visible to citizens, they are ‘distant’ from them in the sense that they do not directly encroach on the individual’s sense of having a sole right of possession of the self no matter how advanced the technology is that is used to make this happen. It is therefore in the area of the transparent use and cross border exchange of information about individual identity by ICTs that the EU and its member states face particular problems. These are important because in most states, with the arguable exception of Finland12, Big Brother fears about ICTs are easily encapsulated in popular discourse as part of a grand conspiracy theory of state power versus the citizen. The plausibility of government claims as to the proportionality and necessity of ICT based identity-checking systems becomes contested. Claims as to the security and non-forgeability of the technology are implausible.13 Concerns about remote ICTs, body implants – whether via prosthetic cortical implants (for example intelligence or sensory amplifiers to boost individuals’ ability to remotely access data stored on a computer, or via ocular implants and prosthesis to enable the blind to see, or via tooth implants or an artifical hippocampus14) – are barely acknowledged by governments even though the technology to achieve this exists and clearly has applications for the security agencies and egovernance. This exacerbates a far greater and growing public trust deficit15 and credibility gap in the nature of governance in general and egovernance in particular. This is further aggravated by the lack of adequate democratic accountability to span egovernance in non-territorially defined space. There exists therefore the paradox of an absence of open, transparent, democratic accountability across the practical realms of egoverance that directly impinge on individuals’ personal integrity, and the reality of an EU border guard geared to policing a territorial external border. At the same time, the variable quality of border control provided by different national systems means that the EU’s external border is not only leaky but highly differentiated and penetrable. The EU border guard, therefore, may at a physical level have a defined territorial remit, including those arising out of EU neighbourhood policies and targeted actions with developing countries. Having been set up by regulation16 in October 2004 and inaugurated on 30 June 2005, it is a nascent body lacking operational credibility. It is to 12 Traditional public trust in government is high and at birth citizens get a unique identification number. 13 J. Wise, ‘Under the microscope: legal challenge to fingerprints and DNA as methods of forensic identification’, International Review of Law, Computers and Technology, 18(2004): 425. 14 Opinion of the European Group on Ethics in Science and New Technologies, to the Commmission, ‘Ethical Aspects of ICT Implants in the Human Body’, adopted on 16 March 2005, p.12. 15 Eurobarometer 63 Public Opinion in the European Union, July 2005, retrieved from: http://europa.eu.int/comm/public_opinion/archives/eb/eb63/eb63.4_en_first.pdf. 16 Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, OJ L 349 , (25 November 2004), p. 1-11.

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coordinate national border guards at external agencies, assist in joint return of illegal migrants operations and facilitate freedom of movement within the Schengen area. However, in the wake of the London bombings in July 2005, the French government suspended Schengen to reintroduce its own border controls.17 At the instrumental level, neither the EU border guard agency nor other EU law enforcement and judicial agencies – like Europol and Eurojust – can operate efficiently and effectively within territorial boundaries. Efficiency and effectiveness demand that they transcend those boundaries and operate in fuzzy cyber-space both among themselves and with nonEU agencies. The requirements of the Hague programme cannot be met unless a seamless information area is established. 2.1.3. Operationalising the Hague programme The Hague programme seeks to set up ‘a continuum of security measures that effectively links visa application procedures and entry and exit procedures at external border crossings.’ It states: ‘Such measures are also of importance for the prevention and control of crime, in particular terrorism. In order to achieve this, a coherent approach and harmonized solution in the EU on biometric identifiers and data are necessary.’ It advocates interoperability between SIS II, VIS and Eurodac, with due account taken of the ‘right balance’ between law enforcement purposes and safeguarding the fundamental rights of citizens. Inter-operability is to be subject from 1 January 2008 to the principle of availability. Under this, law enforcement officers are to make information available across borders for stated purposes subject to the conditions that: • • • • • • •

Data may be exchanged only to allow legal tasks to be performed Data integrity must be guaranteed Sources of information must be protected Data confidentiality at all stages of and after the exchange must be assured Common standards for access to the data and common technical standards must be applied Supervision of respect for data protection must be ensured Individuals must be protected from abuse of data and have the right to seek correction of incorrect data.

Inter-operability, mutual access to nationally-held data and e-data exchange are envisaged but the creation of new centralized European databases may be endorsed if they are believed to add-value. All member states are required to focus on the security of the Union as a whole rather than just their own national preoccupations. Accordingly, intelligence and security service cooperation is envisaged along with the creation of conformity norms and practices. This ties in with the goals of integrating biometric identifiers into travel documents, visas, residence permits and information systems, including national identity cards (which may or may not 17 EurActiv.com 15 July 2005.

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be linked to inter-operable databases as proposed by the UK)18, the establishment of a European External Action service and Common consular (diplomatic) corps. The issue of transferring personal data across borders and jurisdictions within and outside the EU is politically sensitive. EU rules on the transfer of passenger name data have been roundly criticized as disproportionate and inadequate in respect of individual safeguards19 and the protection of privacy, and subject to a European Parliament challenge before the ECJ in July 2004 as being in breach of the European Convention on Human Rights. Transparency and accountability have not kept pace with technological advances. 2.1.4. What does this mean for democratic accountability and citizens? There is a clear clash between ICTs and human rights. Whereas the latter have a seeming entrenched legal superiority, the former have operational priority and superiority. The EU Charter of Fundamental Rights appears to be at centre stage. It is also part II of the draft constitutional treaty (DTC). It establishes general principles of freedom, equality, dignity, solidarity, citizenship and justice, as well as integrity and inviolability of the body, with particular regard to informed consent (Article 3) and personal data protection (Article 8). The latter are elaborated in Directives 95/46 and 2002/58. The precautionary principle is referred to in Article 174 of the EC treaty and in the Commission’s Communication (2000/1).20 The problem is that this has been seen through the prism of medical applications and rules even in this area are fast becoming inadequate. Medical devices (which now clearly have ‘security’ applications) are defined and regulated by Directive 90/385. These are complemented by international instruments governing human genome and human rights issues, and biomedicine under the Council of Europe. Again, the principles of informed consent, dignity and individual integrity are stressed both by the Council and by national domestic laws. This does not extend to biometrics and security or cross-border information exchange for judicial and policing purposes – yet. In the JFS, and notably where cross-border cooperation and information exchange is concerned, these principles are not suspended but they appear to be becoming ever-more subordinate to the functional operational requirements and possibilities of ICTs in cyber-space.

18 Legislation on Identity Cards: A Consultation, Presented to Parliament by the Secretary of State for the Home Department by Command of Her Majesty, CM6178, pt 2.24ff., (April 2004), p.20-22. 19 See for example Privacy International, Transferring Privacy: The Transfer of Passenger Records and the Abdication of Privacy Protection – The first report on ‘Towards an International Infrastructure for Surveillance of Movement’, Privacy International In cooperation with the European Digital Rights Initiative, the Foundation for Information Policy Research, and Statewatch With a Commentary from the American Civil Liberties Union on A Perspective from America, (February 2004). 20 Commission of the European Communities, Communication on the precautionary principle, COM(2000) 01, (Brussels, 2 February 2000).

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Two key areas to the transfer of data across jurisdictions need to be differentiated: (i) conformity questions concerning the free flow of personal data in the EU; and (ii) quality matters relating to the retention, quality and interpretation of any such data. The first are subject to Community rules on the protection of personal data, the rights for data subjects and obligations for those processing personal data, and appropriate sanctions for offenders, and monitoring by an independent supervisory body.21 The EU has only more recently begun to address the second in a systematic way, and then largely within two Commission Directorates General (DG), those of Mr Frattini, and Mme Reding. The EU envisages further measures as a step towards advancing the approximation of criminal legislation, an EU Criminal code (including minimum rules on the constituent elements of criminal acts and penalties – as per Article 31.1.e TEU, a European Evidence Warrant22 (first tabled in November 2003 and supplementing a set of Council of Europe conventions built around the 1959 Council of Europe Convention on mutual assistance ratified by all EU 25 states), and a European Prosecutor23. Moreover, it is entirely appropriate that the European Parliament should be especially vigilant of the potential (unintended) implications for the erosion of civil liberties of many of those envisaged.24 It supported the European Council in recommending to the Commission that its 2005 Action Plan use the DTC as its reference point rather than Article 31.1.e of the Treaty on the European Union as the latter is not adequate any more for protecting citizens and guaranteeing an area of freedom, security and justice. Human rights issues aside, the absence of effective political accountability and democratic controls sufficient to preventing the abuse of power and authority in cyber-space transactions means that (a) egovernance has to be rethought, and (b) the practices and instruments of facilitating police and judicial cooperation in cyberspace must be made subject very swiftly to common operating codes. This priorities procedure over the substance of constitutionally entrenched political control and quality political accountability. The relative transparency of voluntary and mandatory codes is of less import in these circumstances than the absence of genuine, visible and comprehensible political controls to ensure that ideals and practices resting on trust are not eroded as various authorities deploy their discretionary powers. This is perhaps best expressed in the JFS framework by efforts to ensure that operating 21 Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data, OJ L 8/1, (12 January 2001). 22 S.Peers, Statewatch briefing on the European Evidence Warrant to the European Parliament, (15 March 2004), www.statewatch.org accessed 20 March 2004. 23 Commission of the European Communities, Follow-Up Report on the Green Paper on the criminal-law protection of the financial interests of the Community and the establishment of a European Prosecutor, COM(2003)128, (Brussels, 19 March 2003). 24 European Parliament, Committee on Civil Liberties, Justice and Home Affairs, Working Document on the quality of criminal justice and the harmonization of criminal legislation in the Member states, Rapporteur, Antonio Costa, (1 December 2004).

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codes be made mandatory to obtain and sustain quality justice and quality security. Without quality justice and quality security, public credibility and trust gaps will widen both vis-à-vis traditional agents of government and in respect of the obligation on the citizen to enrol in biometric identification systems required by government authorities. 2.1.5. Starting at the borders The EU has adopted a two-pronged approach to this problem. The first element rests on enhancing the procedures and practices of law enforcement authorities across the board in order to improve cooperation, coordination and consistency. The second element rests on improving the ability of the authorities to track the movement of individuals, and telecommunications25. Both were foreseen years ago. Both were presaged by Tampere. The tracking of individuals, however, uses concepts and fastmoving technology developed firstly in the early 1990s for asylum, refugee and migrants, whose interrogability is enhanced by the potential provided by the storage and exchange of biometric identifiers like fingerprints, and not merely digitized facial images. This seems a logical development. All the instruments associated with migration, asylum, visas and Schengen implicitly rest on the adoption and crossjurisdictional storage, transfer and checking of personal biometric data, such as that stored in Eurodac and VIS and SIS II. These formed the pilots for widening the applying ICTs to the ordinary citizen. The problem is that the accountability and democratic responsibilities mechanisms are not seen to be sufficiently robust and responsive to political control exercised by known, visible and publicly accountable representatives. Public reception remains contingent and variable. Views as to the acceptability, for example, of identity cards in the UK – which the UK Presidency wants rolled out across the EU, changed as a result of the London bombings. By contrast, in Austria there were fewer objections. The Austrian Chancellery will pilot, for example, smart ID cards for rights and identity management in July 2006 in a country where egovernance is widespread and public acceptance high. Local political cultures, expectations and experience affect public perceptions making ‘getting it right first time’ essential.26

25 OJ C12, 15.1.01, p 10. See also: Commission of the European Communities, Proposal for a Council decision on the exchange of information. COM(2004) 664, (Brussels, 13 October 2004). Initiative of the Kingdom of Spain with a view to the adoption of a Council Decision establishing a mechanism for evaluating national legal provisions relating to the fight against terrorism and their implementation OJ C 151, (26 June 2002), p. 14. European Parliament, Working Document on the quality of criminal justice and the harmonization of criminal legislation in the Member States, Rapporteur A. Costa, (1 December 2004), pt 2.3.4. Council of the European Union, Outcome of proceedings from : Presidency in association with CounterTerrorism Co-ordinator Subject : Fight against terrorism: Programme and priorities for 2005 and Working document on data protection issues related to RFID technology, 10107/05/EN WP 105, (Brussels, 14 March 2005). 26 www.ejustice.eu.com.

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Moreover, the transfer of biometric data and their storage in inter-operable central data bases that can be interrogated both by agencies within national jurisdictions and beyond them means that the individual is commodified and de-personalized. Citizens do not necessarily trust their own administrations, and are evermore suspicious of those outside them (whether outside is seen as outside their immediate locality, town, region, state or outside the EU). Citizens are often ignorant of safeguards and institutions designed to protect their interests, such as the European Data Protection Supervisor. The expectation is that parliaments should be in a position to protect the citizen, even though they fail. There is a growing sense that the individual has an ever-decreasing ability to know about the location, accessibility and storage of data about himself, and a falling ability to retain control over the use or misuse of any such information, regardless of EU provisions designed to protect individuals in respect of the processing and free movement of such data27. This negatively impacts on communal trust in the governors and their agents. This problem is not peculiar to the EU. For instance, it is a recurrent theme in committees across the world set up to explore ethical issues in medicine, such as that in Quebec on genetic databases which echoes these concerns and attempts to outline core values28. Central to EU concerns, however, are the ethical issues arising in the JFS context where both the tests of structural transparency and accountability and those as to the infallibility and robustness of ICTs are not yet met. 2.1.6. From human fallibility to ICTs fallibility: the affective and technical paradox of biometrics In theory, biometric identifiers are supposed to be infallible in a way that humans are not. This is an attractive concept to governments anxious to enhance their counterterrorism and counter-crime targets. Accordingly, many subscribe to the idea of a document or card that verifies, authenticates and validates the identity of the holder using ‘unique’ biometric identifiers. Citizen distrust is growing as to the reliability of such identifiers, and the robustness of the technology to withstand fraud. This results in an affective paradox for the EU. More and more people hold tangible documents in their pocket. In future, EU cards (such as the widely adopted EU health card29) put physical symbols of identification with the EU (such as the flag and unique EU ‘good’ or entitlement that the possession of the card confers on its owner) very close to the citizen. This has not led to a concomitant growth in affective identification

27 Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 Dec 2000 on the protection of individuals with regards to the processing of personal data by the Community institutions and bodies and on the free movement of such data, OJ L 8/1, (12 January 2001). 28 Commission de l’éthique de la science et de la technologie Les enjeux éthiques des banques d’information Génétique: pour un encadrement démocratique et responsable, Avis, Gouvernement de Québec, (2003), retrieved from : http://www.ethique.gouv.qc.ca/fr/ftp/ AvisBanquesGen.pdf. 29 http://europa.eu.int/idabc/en/document/4333/355.

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with the EU (as envisaged by treaty framers) or in trust. This is the proximity paradox of biometrics.30 The technical paradox of biometrics concerns the tension between the semblance of swift authentication of an individual’s identity (notably in crossing borders and in economic transactions) and the well-known problems of data decomposition and cost, and concerns over their misuse – as in cloning and forging them - by criminal bodies. All are exacerbated by the possibilities of ambient intelligence systems. If the technical advantages, for example, of say a biometric over a physical key to opening a door is easily overcome by the criminal, the effectiveness gain is lost. Governments’ rationale to persuade citizens of the advantages of biometric identifiers in travel documents is further compromised by industrial competition and duplication and widespread theft and forgery. The putative advantages to tracking this under SIS II have not been explained to the public.31 SIS itself is not well-known. Nor are traditional border control and police agents who access SIS themselves particularly recognizable. Intelligence services necessarily rely on operational secrecy for success. Moreover, trials of biometric identifiers used for border crossing purposes (notably among migrants and asylum seekers) reveal how fragile and expensive the systems are, thereby compromising effectiveness-gain claims. For example, whereas Eurosmart, representing the European smart card industry, sees biometric smart cards as the best and most cost effective technology for the future security of personal ID systems,32 others have argued that the estimated €200million cost far outstrips the current costs of combating fraud. Ultrasonic fingerprint techniques33 and industrial rivalry over iris recognition or implant technology34 mean that common standards are elusive: sub-optimal outcomes and contradictions are inevitable. The public gains the impression that security will not be enhanced given the extent of political, technical fallibility. This danger is compounded by political reluctance to accede to binding codes of behaviour such as those pioneered by the Council of Europe on the automatic processing of personal data. 35 For example, the UK passport 30 This is developed in J. Lodge, ‘Transparency and Security : Openness, Biometrics and the Proximity Paradox’, paper for Challenge conference: Internal freedom versus External security? (Brussels, 3 June 2005). 31 Commission of the European Communities, Communication from the Commission to the Council and the European Parliament – towards integrated management of the external borders of the member states of the European Union. 32 See reports in EurActiv.com 17 June 2005. 33 www.optel.pl 34 See international biometric group deliberations on www.biometricgroup.com 35 The Council of Europe, Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, opened for signature on 28 January 1981; ratified by 31 states and signed by a further seven. The Convention was complemented in 2001 by an Additional Protocol on Supervisory Authorities and Trans-border Data Flows, drafted because of the increase in the flow of data across national borders. UN World Summit on the Information Society, Tunis, (2005): http://www.itu.int/wsis/stocktaking/docs/Stocktaking-

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agency trials (mirrored in other member states like France and Germany) provide grounds for thinking that the technology is not yet sufficiently mature to withstand tampering, counterfeiting and fraud by criminal attack. Inter-agency competition for lucrative contracts to provide the cards and attendant technology may increase cost and risks both because concerted efforts do not avoid duplication and because incompatibilities may result in reduced robustness algorithms being introduced to facilitate the inter-operability wanted by some governments and agencies, but almost universally deplored by citizens. Added to this is the cost of regular and expensive updating – with costs devolved to citizens; and the likelihood that the biometric cards promoted today are already obsolete and likely to be archaic by the time they are universally deployed across the EU. Moreover, biometric ICTs piloted for one purpose can be used for others. The UK Home Office published on 25 May 2005 the biometric enrolment trial results for which Atos Origin36 had provided overall project management including the design, build and support of the trial equipment and software in support of the UK Passport Service. Piloted in April – December 2004, this noted the processes and recorded customer experiences and attitudes during the recording and verification of facial, iris and fingerprint biometrics.37 Interestingly, the pilot was commissioned by three agencies concerned with verifying (and using inter-operable data bases) to track and record individual movements, including ground satellite navigation systems (also piloted by motor insurance agencies ostensibly as a means to greater financial efficiency). The agencies were the UK Passport Service in partnership with Home Office Identity Cards Programme and Driver and Vehicle Licensing Agency. They provided a mix of classic, low political salience domestic public goods – car licensing and annual road tax renewal administrative gains (to the agency) and convenience gains (to the citizen) with technology that can be used for entirely different purposes associated with security (border crossings by citizens, residents, tourists, and third state nationals (some of which are subject to visa requirements). As has been shown in France, the credibility of the claims that security gains can be achieved through the imposition of such biometric, inter-operable technology is doubted by the public. Moreover, the replicability and impartiality of opinion Report-15July2005-Finalv1.doc, p.31 See too International Telecommunications Union Council Working Paper on the world summit, WG-WSIS-8/5 of 28 Jan 2005 which highlights problems of internet access per se relating to governance as administration. 36 Atos Origin as prime contractor designed, built and maintained the trial equipment and software. It was supported by a consortium of technology vendors: NEC supplied its Automated Fingerprint Identification System (AFIS), Identix provided the fingerprint capture and facial matching technology whilst the iris recognition technology was supplied by Iridian Technologies Inc. The survey research component of the project was undertaken by MORI. Other major companies like UNISYS, SAGEM and THALES inter alia might also be expected to have interests in these fields, as do companies selling such technologies with an eye on global market opportunities (http://www.atosorigin.com/corporate/industries/pubsec_ biometric.htm). 37 Full findings: http://www.homeoffice.gov.uk/comrace/identitycards/index.html.

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data derived from the UK trial has to be proven. The EU Commission’s own report noted the need for: fallback procedures given the sub-optimal accuracy, reliable and accessibility of biometric systems; the need for more research on technical interoperability standards, performance and data integrity, multimodel biometric systems, and large-scale field trials; and especially the need to exchange best practice and harmonize EU member state initiatives. It also emphasized that particular efforts needed to be made to convince citizens of the purported gains.38 There is an assumption common to the CFSP and JHA areas regarding the transmission of information.39 The dominant JHA presumption that a seamless information area should be created to augment and expedite judicial cooperation questions the territorial realities of statehood and the constitutional defects of the EU as well as the relationship of trust between the governed and the governors (at whatever level). Constitutional norms clash with operational needs. 2.1.7. Threats to territorial integrity as an impetus to cyber-border controls The July 2005 London terrorist bombings led to the convening of an Extraordinary meeting of the JHA Council.40 It agreed to expedite the adoption of a range of measures on the retention of telecommunications data, the European evidence arrest warrant, terrorist financing, the third money laundering directive, and to improve information sharing on lost and stolen explosives41. It further agreed to:-present proposals on data protection principles in the field of law enforcement and, in accordance with the Hague programme, on the principle of availability by October 2005 and on that basis, to bring forward the communication on enhanced interaction between the VIS, SIS II and EURODAC and the proposal for law enforcement access to the VIS by November 2005. It called on member states to agree common standards for security features and secure issuing procedures for ID cards (December 2005) with detailed standards to be agreed as soon as possible thereafter; to develop visa information sharing via VISA; prioritize the roll-out of biometrics (for example facial recognition and fingerprinting of visa applicants under VIS to regions/countries of high risk); and collaborate in the provision of biometric capacity to visa issuing posts. The JHA Council called on the Commission to advance the proposal on airline passenger name records by October 2005; and invited the EU Counter-Terrorism Coordinator 38 Biometrics at the Frontiers: Assessing the Impact on Society, a report prepared by the Commission’s Joint Research Centre for the European Parliament’s Committee on Citizens’ Freedoms and Rights, Justice and Home Affairs (LIBE), (Seville, March 2005). See: http:// europa.eu.int/idabc/en/document/4066/330; and ftp://ftp.jrc.es/pub/EURdoc/eur21585en.pdf. 39 Council Decision 2003/48/JHA of 19 December 2002 on the implementation of specific measures for police and judicial cooperation to combat terrorism in accordance with Article 4 of Common Position 2001/931/CFSP, OJL 16/68, (22 January 2003). 40 T. Balzacq and S. Carrera, The EU’s Fight against International Terrorism: Security Problems, Insecure Solutions, (Brussels, 2005). 41 Commission of the European Communities, Communication on Ensuring Greater Security of Explosives, Detonators, Bomb-making Equipment and Firearms, IP/05/969, (Brussels, 19 July 2005).

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and the Commission, as appropriate, to report by December 2005 on the development of emergency response capabilities, and arrangements to share information, ensure coordination and enable collective decision-making in an emergency, particularly for terrorist attacks on more than one member state42. On July 11, the UK Presidency put forward a proposal requiring all ID cards in the EU to have biometrics, including fingerprints. The Home Secretary was crossexamined by MEPs. The proposal raised particular problems as to EU competence as harmonization of ID cards is not foreseen by Article 18 of the Nice Treaty. It explicitly excludes provisions on passports, identity cards, residence permits or any other such documents. This had already caused problems in December 2004 when under the consultation procedure the Council had adopted a regulation on mandatory facial images and fingerprints in EU passports. Article 18.2, however, provides for Council action in line with Article 251 (codecision) when action is needed and the Treaty has not provided the necessary powers. Moreover, following this an article 6 Committee was set up by the Commission (excluding Ireland, Denmark and the UK) and its remit has expanded progressively from visas to passports and now to biometric identity cards. The UK Presidency clearly intends that biometric identifiers be precisely defined as a requirement for a facial scan rather than simple digitization of existing photo booth facial images and fingerprinting.43 The London bombings expedited EU action on the ICT front relating to borders and tracking. The common assumption remains that the application of ICTs will enhance the effectiveness and ability of all concerned to realize the JFS, secure the external EU border and combat international organized crime involving the movement of people. Questions need to be asked, however, as to public concerns regarding alleged the effectiveness gains of inefficient biometrics? What are their consequences for sustainable security for the EU? What are the democratic requirements that the EU should develop to meet the new challenges? These issues tend to be fudged as the focus shifts more to the difficulties of creating a level playing field in border control and management, in judicial cooperation, and in cross-border information exchange for policing, migration, customs and security purposes. Given the diversity of systems, legal norms and practices, and given political commitments to the Charter of Fundamental Rights, it is not surprising that attention has switched to quality issues: how is quality security and quality justice to be developed, delivered and rendered democratically accountable and liable to credible, trustworthy political controls? What are the quality criteria to be applied to ensure ethical ejudicial cooperation?

42 Council of the EU, Press Release 11116/01(Presse 187), retrieved from: http://ue.eu. int/Newsroom 13.07.2005. 43 See S. Peers, ‘EU:Biometrics – from visas to passports to ID cards’, retrieved from: www.statewatch.org/news/2005/jul/eu-bio-passports-id-cards.pdf 20 July 2005; and J Lodge, ‘Sustaining Freedom, Security and Justice – from terrorism to Immigration,’ Liverpool Law Review, 24, (2002): 19-39.

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2.1.8. Transposing transparency: the role of quality and disclosure criteria Benchmarks are useful both instrumentally and operationally to move towards commonality. They are also useful mechanisms for arguing that transparency requirements are being met, if not from the traditional perspective of structural political accountability and transparency then from the perspective of transposing steps towards common quality standards in a transparent manner. This shifts the focus to the relative open, democratic accountability of policing and other related border agencies and to limited aspects of data protection. It can be plausibly argued that the appropriate remedy does not simply lie in the application of existing mechanisms and institutions of democratic accountability. However, that does not necessarily overcome the problem of public distrust. The counterpart to secrecy is not just privacy. The use of ICTs and biometrics in the security domain raises further issues as to the disclosure of personal information among professionals for unspecified purposes, at unknown times, to unknown places and unbeknown to the individual concerned. Moreover, there is a clear need to secure clarity over the meaning of words which are loosely and sometimes indiscriminately used by public and private sector agencies both of whom may be involved in the processing and exchange of personal information and data44. However, quality codes and rules on processing are a step in the right direction. Even then, the political requirements of security are invoked to justify derogations and exceptions. The individual’s ‘confidentiality’ and ‘privacy rights’need to be balanced against other legitimate rights of the state and other citizens. This is the overriding but often unclear implied obligation that public authorities like the EU and its member governments assume when advocating ever more intrusive surveillance and tracking of individuals. (Note, the subdermal VeriChip is not a Global tracking System like the chips piloted in the UK by motor insurance companies for insurance and tax authority purposes. Human skin, however, can be used as a tracking agent45). However, as agencies examining information exchange in other sensitive sectors, like health, have argued, the notions of confidentiality and privacy rights have different obligations. Disclosure of personal information is not universally understood to mean the same thing, for instance. Personal data and personal information entail different processes and therefore different types of accountability and democratic legitimization may be necessary in order to protect the individual and to safeguard independent decision-making. Disclosure has to be based on an assessment as to the need for it, proportionality, risks to the individual as well as to third parties of non-disclosure and of disclosure, the practicalities of the processes involved (including their viability, sustainability, integrity and robustness from non-authorized interrogation), and the requirements of civil and especially criminal justice. The London bombings, a year 44 S. Booth et. al., What are personal data, a Report for the UK Information Commissioner, University of Sheffield, (2004), retrieved from: http://www.informationcommissioner.gov.uk/ cms/DocumentUploads/What%20are%20personal%20data%20research.pdf. 45 http://www.ident-technology.com.

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after those in Madrid, led governments to expedite measures to enhance cooperation among intelligence and police agencies with a view to combating terrorism. Parallel steps were taken – as for example in the decisions to expel radicals condoning, glorifying or preaching terrorism46, and numerous further surveillance measures that could potentially abused were prioritized. From an EU perspective, disclosure of information is conflated primarily with transparency as access to documents and information, and as privileged access to those in a position to influence policy outcomes. The draft Transparency Initiative47 almost exclusively focuses on lobbying and corporate activities and those associated with financial transactions of a civil kind. This presupposes that transparency in the civil arena should be subject to different interpretation and rules than that in the criminal arena and those covered by internal JFS security concerns. Moreover, the application of ICTs highlights the desirability of privacy and transparency being treated as complementary sides of the same coin, while also indicating the impossibility of according equal weight to both. It is important to be aware of this since transparency requirements can too easily be presented as being protected and realized through the existence of voluntary or mandatory quality codes of practice. They may be necessary in their own right. They must not be confused however with transparency as structurally entrenched institutionalized political accountability geared to guarding against abuse of power or dominant position. There is a need to differentiate between codes of practice and democratic accountability. The codes of quality practice are instruments to advance consistency and coherence in operationalizing common commitments to protecting the borders. These add to transparency in making clear what the requirements and practices are. They do not equate to democratic checks on how policy is implemented, in whose name and on whose authority and in pursuit of which particular EU objective. They do prescribe a form of internal, peer accountability, and facilitate the development of indices by which progress can be measured. This is needed to produce quality justice, consistency and certainty for citizens and for governments seeking a predictable and uniformly secure border regime. The EU is moving in this direction but wide discrepancies persist. Where the border guard agency is concerned, the EU has, since the discussions over the Amsterdam treaty and especially since Tampere 1999, worked on a Common Manual for border agencies. This is designed to lead to common quality practices and standards at internal and external borders. The Commission had a key role in developing it. It presented a working document on the subject in 200348 to examine the acquis on external borders and gaps relating to a common manual. 46 Germany, Austria, Italy and France and other followed the UK on this. 47 Siim Kallas Commission Vice-President and Commissioner for Administrative Affairs, Audit and Anti-Fraud The need for a European transparency initiative speech on 3 March 2005, Speech No 05/130 http://europa.eu.int/rapid/pressReleasesAction.do?reference=SPEECH/ 05/130&format=HTML&aged=0&language=EN&guiLanguage=en. 48 SEC(2003) 736, (Brussels, 20 June 2003).

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Most member governments supported its recommendation to separate two elements implicit in the notion of policing a common border: a legislative instrument and a practical handbook for border guards. A basic act complete with principles and rules on external borders confers on the Commission, under Article 202 of the Treaty, the power to adopt measures to implement the basic act. Simultaneously, steps were taken to adopt measures on local border traffic and the stamping of travel documents which, with the adoption of the regulation, bring all national border controls into line in theory. In practice, as has become apparent, the member governments use their discretion to take national decisions to revert to national modes of practice. This has serious implications for the ideal of equal treatment of people within the EU, and for the nature of quality standards in practice. Wide variation therefore persists in respect of formal institutionalized national and supranational level democratic accountability. 3. The EU Proximity paradox: Democracy and transparency: Beyond the Illusion At the very time when technology has made it possible to bring the EU closer to the citizen more directly than ever before, EU citizens and residents appear to be more suspicious of it than ever before. The proximity paradox resides therefore in the tension between their sense of closeness and the semblance of closeness that ICTs offer everyone within the EU’s common border. ICTs create the illusion of transparency and openness without the substance of open, democratically visible and credible political accountability and control. The semblance of openness and transparency that may be afforded through the provision and application of ICTs which directly affect everyone within the EU’s common border create the illusion of transparency and openness without the substance of open, democratically visible and credible political accountability and control. The proximity paradox of contemporary European integration exemplifies how ICTs on the one hand create an appearance of the EU’s direct tangible relevance to EU citizens but on the other exacerbate the apparent trust deficit. EU citizens may be more able to identify and identify with EU symbols (such as the flag and logo) but even when they hold documents with their name (and possibly EU symbol on it, such as a passport) do not share a conviction in the trustworthiness of those who rule them. The EU’s goal of creating sustainable justice, freedom and security and its realization through judicial cooperation confronts policymakers and citizens alike with the introduction of measures that appear to compromise individual liberty and privacy in ways that are deeply uncomfortable to citizens in some member states. The introduction of biometric identity cards illustrates this as no common EU standard as yet exists49 even though such cards may be used as a tool of judicial cooperation to verify and authenticate individual data, especially in crossing internal 49 The Finnish card has to be renewed every three years to keep up-to-date with technology that could be used to breach its integrity. The proposed French card differs in the

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and external borders. The suspicions as to the purpose of such cards are intensified by anxiety that their introduction is determined by industrial interests capitalising on an agenda set by external security agencies and government departments (including those responsible for customs, and immigration), in conjunction with intelligence agencies and by a creeping securitization of internal policing specifically, and by creeping securitization across the board in general. In short, the public doubts that the means match the objectives: neither are seen as proportionate or credible. This is both a problem of communication (a la Wallstrom) and a problem of openness and proximity. Communication of the aims in language understood by the people is one thing, persuasion – a key element of successful public diplomacy – quite another. Openness can be achieved by effective communication via the media but proximity – in the sense of bringing the EU closer to the people – cannot. The intermediary of credible national political actors able to convincingly substantiate claims is necessary but not sufficient of itself. The technical ‘solutions’ provided by robust management systems to safeguard individual privacy and gold practice codes of behaviour governing data storage and use still need to be complemented by institutional provisions to entrench effective democratic accountability and procedural practices to make operational judicial cooperation as well as ejudicial cooperation proportionate and fit responses to the problem of cross-border crime, and to the more mundane business of securitized domestic politics ever closer to an ever more distrustful citizen. 4. Conclusion The application of information and communication technologies (ICTs) together with biometric identity authentication and verification systems under both the JHA and increasingly securitized domestic areas of socio-economic and welfare activity closest to the citizen raises questions about (a) the robustness of existing democratic institutions ; (b) the technical systems themselves; (c) the relationship of presumed trust between the citizen and the state; and (d) the appropriateness of territorially based institutions of political accountability to control and protect democratically and openly citizens within their borders whose personal integrity, once digitized and stored, becomes subject to the market forces of agencies outside the control and the borders of those agents. The basic contract between the state and citizen, which formed the basis for contemporary understandings of sovereignty, are therefore eroded and require rethinking. The apparent closeness to the governed of biometric chips, identifiers and smart cards, for instance make the governed ever more wary of the intentions of agencies that appear to escape the legitimate controls of the governed. Function creep typifies the JHA area: the paradox of proximity is about more than function creep. The scope of data to be held. See http://computerworld.com.sg/ShowPage.aspx?pagetype=2&arti cleid=753&pubid=3&i (13 April 2005).

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very functionality of modern egovernance increasingly escapes territorial borders, and hence eludes the politico-legal democratically legitimated accountability and control mechanisms set in place to guard against an abuse of executive power and to ensure open, balanced government. Biometric identifiers are very crude and inadequate instruments that do not go anywhere near approximating an appropriate, politico-legal democratic arrangement to ensure that justice, freedom and security are sustained or enabled. The readier identification of an individual by itself is no substitute to the institutional codification and entrenchment of norms, values and quality practices that uphold enlightened, open, democratic government which is at the heart of liberty and security. It has long been understood that in war times, normal democratic values and practices may have to be suspended for the public good. Exemptions to open government have been accepted as operational necessities. Extrapolating these codes of exemptions to the daily conduct of policymaking and implementation not traditionally associated with wartime operations, creates tension and suspicion. This may be the inadvertent side-cost to ad hoc operationalization of steps that evolve necessarily within security discourses and in response to legitimate security concerns. Their exclusion from transparency requirements and practices however compromises the system indirectly because it potentially erodes the unquestioned assumption that governments make about their citizens: namely that there is an adequate level of public trust in the government. This does not mean that transparency and security must remain irreconcilable ideals. It does mean re-thinking the problem of transposing transparency into practice in a functionally determined, borderless cyber-space accessed by the traditional territorial agents of an expanding but still territorially defined securitized EU external border. Operational and technical problems mean that no matter how efficient and robust the ICT systems may become that are designed to assist police, legal and law enforcement agencies, there is no real alternative to the traditional route of visible accountability to the national parliament and, given the cross-border remit of judicial cooperation, to the European Parliament.

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Chapter 15

Trust-building Measures in the European Judicial Area in Criminal Matters: Issues of Competence, Legitimacy and Inter-institutional Balance Valsamis Mitsilegas

1. Mutual Recognition as a Challenge to Mutual Trust Mutual recognition of judicial decisions has dominated the development of EU criminal law post-Tampere. A central aim of this principle is the quasi-automatic recognition and execution of judicial decisions in criminal matters from Member State A to other Member States of the EU, with minimal formalities and limited grounds for refusal. This signifies an attempt to transfer the principle of mutual recognition from the context of the internal market, where it has been tried and tested since the 1980s, to the sensitive area of criminal law and justice. The emphasis on mutual recognition, instead of full scale harmonisation of criminal law, has been a convenient choice for both Member States fearful for their loss of sovereignty in this important area, and for EU institutions, which would avoid legislative stagnation in the development of EU criminal law.1 The political appeal of mutual recognition for Member States lies in the fact that, instead of embarking in a very visible attempt to harmonise their criminal laws under the banner of the EU, they can promote judicial co-operation by not having to change in principle their criminal laws – they ‘only’ agree to accept judicial decisions emanating from other Member States. For EU institutions with a pro-integration agenda, on the other hand, mutual recognition would avoid stagnation (caused by Member States reluctant to harmonise criminal law in the ‘unanimity’ landscape of the third pillar) and lead to some sort of approximation of minimum procedural

1 See the 1998 remarks of J. Straw, then UK Home Secretary, stating that instead of seeking total harmonisation, it is preferable to go for mutual recognition, the inspiration being the earlier ‘de-blocking’ of the internal market within a decade – in French Ministry of Justice, L’espace judiciaire européen – Actes du colloque d’Avignon, La Documentation Francaise, p.89.

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standards leading to the establishment of a common level playing field across the EU. A number of measures have been negotiated and adopted based on this principle, their flagship law being the Framework Decision on the European Arrest Warrant.2 In the negotiations for the adoption of these measures, the challenges of mutual recognition to the criminal justice systems of Member States became apparent. Mutual recognition is a ‘journey into the unknown’: rather than agreeing to commonly negotiated standards of criminal law at EU level, Member States agree in principle to oblige their judicial authorities to accept decisions emanating from criminal justice systems of other Member States. The judicial authorities of Member States were asked to recognise and execute decisions from authorities in other Member States involving coercive measures, only on the basis of a short and basic ‘pro-forma’ form completed by the requesting authority, the system pre-supposing almost blind trust to the criminal justice system of the requesting Member State. This quasi-automatic character of mutual recognition has led to a certain unease in Member States, stemming from the sensitive character of the measures involved, which are inextricably linked to the exercise of State power, and the relative lack of trust in the criminal justice systems of other Member States – which remain unknown in the absence of any serious attempt towards establishing a common understanding of criminal justice systems at EU level. This lack of trust has been addressed primarily in two ways: by the introduction, in the body of mutual recognition measures, of grounds of refusal of recognition and execution of a request by the requested authorities and of clauses aimed at ensuring the respect for human rights and fundamental freedoms; and by the adoption of specific measures at EU level, aimed at enhancing trust in the criminal justice systems of Member States. It is the second category of measures that this chapter will examine. It will be demonstrated that, while welcome in principle, trust-building measures in the EU raise a number of complex issues of legality, legitimacy and the balance between the EU institutions at the present stage of European integration. These issues may pose constraints in the adoption of trust-building, and ‘protective’ EU measures, which seem necessary to catch up with the ever growing mutual recognition of enforcement measures. 2. Building Trust through the Adoption of Common Procedural Standards: The Framework Decision on the Rights of the Defendant The swift adoption of the European Arrest Warrant and the concerns it raised regarding the lack of trust in the criminal justice systems of Member States and the potential deterioration of the rights of the defendant has led to calls for the adoption of ‘protective’ EU measures on defence rights to ‘balance’ the enforcement priorities of mutual recognition. The Commission started work on such proposals 2 OJ L 190, 18.7.2002, p.1. Other measures cover the recognition and execution of freezing and confiscation orders and financial penalties, and the European Evidence Warrant.

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in 2002, with its consultation continuing to mid-2003.3 With noticeable delay, the Commission finally tabled at the end of April 2004 a draft Framework Decision ‘on certain procedural rights in criminal proceedings throughout the European Union’.4 The proposal aims at minimum standards and contains provisions on the right to legal advice, the right to translation and interpretation, the right to communication and specific attention and the duty to inform a suspect of his rights in writing through a common EU ‘Letter of Rights’. Although modest in its scope and aiming at minimum standards, the proposal has been quite controversial. It is feared that each of the proposed articles potentially has far-reaching implications for the criminal justice systems of Member States (in spite of the fact that all Member States are signatories to the European Convention on Human Rights and that the rights proposed by the Commission are ECHR based). In the light of decision-making by unanimity in the case of this proposal, the result has been a very slow pace of negotiations, and even in fears that the proposal might eventually fall or be so diluted that ay approximation effort will be rendered meaningless. Member States have voiced concerns regarding both the existence and extent of EU competence in the field, and in the negotiations of each individual article, and the, at the time of writing, Austrian EU Presidency (first half of 2006) has a difficult task in brokering agreement on the text.5 The Commission has justified the proposal as necessary to ensure compatibility between the criminal justice systems of Member States and to build trust and promote mutual confidence across the EU. It is worth quoting the following passage from the Explanatory Memorandum of the proposal at length: ‘Mutual recognition can only operate effectively in a spirit of confidence, whereby not only the judicial authorities, but all actors in the criminal process see decisions of the judicial authorities of other Member States as equivalent to their own and do not call in question their judicial capacity and respect for fair trial rights. This is important so as to enhance a general perception of mutual recognition which is positive, and that involves not only trust in the adequacy of one’s partner’s rules, but also trust that these rules are correctly applied’.6 However, not all Member States have been convinced. The latter had a difficult gestation period (which may explain the delay in it making it through the Commission internal channels prior to being tabled), with Member States disagreeing on both

3 See C. Morgan, ‘Proposal for a Framework Decision on procedural safeguards for suspects and defendants in criminal proceedings throughout the European Union’, ERAForum 4/2003, (2003): 91 and ff. 4 Commission of the European Communities, Draft Framework Decision ‘on certain procedural rights in criminal proceedings throughout the European Union, COM (2004) 328, (Brussels, April 2004). 5 For an overview of the different views among Member States, see Council of the European Communities, Document no. 12353/05, (2005). 6 Ibid., paragraph 28.

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its necessity and what should be in and what should be out of the text.7 An issue related to the content of the proposal and is still thorny, notwithstanding the fact that negotiations on the text have begun some months ago, is the issue of the legal basis, with at least one Member State continuing to have doubts over the legality of the proposal.8 The proposed legal basis is Article 31.1.c of the Treaty on the European Union (TEU), which enables common action to be taken on judicial cooperation in criminal matters ‘ensuring compatibility in rules applicable in the Member States, as may be necessary to improve such co-operation’. The Commission defends this choice by stating that the proposal constitutes the ‘necessary complement’ to the mutual recognition measures that are designed to increase efficiency of prosecution, adding that ‘a set of agreed procedural rights to ensure equivalent treatment of suspected persons throughout the EU should enable judicial cooperation measures to be applied as efficiently as possible, especially those that envisage surrender of persons or of evidence to another Member State. Any reluctance on the part of the authorities of one State to surrender a national to the judicial authorities of another may be alleviated in this way’.9 The proposal may indeed contribute towards enhancing compatibility between some aspects of the criminal justice systems of Member States and thus prima facie satisfy the wording of Article 31.1.c TEU. If implemented conscientiously, it will probably represent an improvement in the situation of defendants in Member States and must thus be welcomed. However, there are three serious objections that can be raised regarding the power of the European Union to adopt a proposal which is undoubtedly a criminal procedure measure: 2.1. The treaty contains no express legal basis for the adoption of criminal procedure measures Criminal procedure is a field of law which is inextricably linked to State sovereignty. For the Union to have competence to adopt EU-wide standards in the field, an express Treaty legal basis is required. At present, no such legal basis exists in the TEU. Moreover, no current Treaty provision can be interpreted as reflecting Member States’ will to legislate on criminal procedure when agreeing the Nice Treaty. An express – but limited – legal basis for EU criminal procedure measures regarding the rights of the individual exists in the – now frozen – European Constitution.10 The need for such a provision in the Constitution arguably stems from the lack of 7 For an account of objections, see Commission of the European Communities, Draft Framework Decision ‘on certain procedural rights in criminal proceedings throughout the European Union, paragraph 18. 8 See Council of the European Union, Document no. 8578/05, (29 April 2005). On the legal basis debate, see also House of Lords European Union Committee, , 1sr Report, session 2004-05, paragraphs 29-41. 9 Commission, Draft Framework Decision ‘on certain procedural rights in criminal proceedings throughout the European Union, paragraph 51. Emphasis added. 10 Article III-270.2.b of the EU Constitutional Treaty.

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an express provision conferring clear-cut competence to the EU in this field. This view was also echoed by the Convention on the Future of Europe when debating the Constitution: in its final Report, Working Group X on ‘Freedom, Security and Justice’ highlighted the need for clearer identification of Union competence in the fields of substantive and procedural criminal law11 and noted that, in the field of procedural approximation, ‘at present, Article 31 TEU does not reflect sufficiently this point and is too vague on concrete possibilities for such approximation’.12 2.2. The achievement of ‘mutual trust’ is too indirect and subjective as a legitimating link The Commission stresses that the Framework Decision will enhance judicial cooperation in criminal matters by strengthening mutual trust in all actors of the criminal justice system in Member States. An extra level is thus added to the scheme of Article 31.1.c. Rules lead to compatibility which lead to trust which in turn leads to the improvement of judicial co-operation. So it is not compatibility as such that will improve co-operation, but the trust it may create. However, the concept of trust is inherently subjective and it is questionable whether such subjective frame of mind should be set as a goal of a legal measure. How will ‘trust’ be achieved and measured? Is the existence of legal rules per se in foreign countries sufficient to increase public trust, especially in the face of hostile press coverage and the many times ingrained belief in the superiority of one’s domestic criminal justice system? These are open questions, which may point to the fact that the concept of ‘mutual trust’ is too subjective in this context, and thus not necessarily amenable to judicial review. This would however run counter to settled ECJ case-law on the first pillar, according to which the choice of legal basis for a measure may not depend simply on an institution’s conviction as to the object pursued, but must be based on objective factors which are amenable to judicial review.13 2.3. The proposed legal basis frames human rights within a logic of prosecutorial efficiency Rules on the rights of individuals in criminal procedure are essentially human rights provisions, many of them bestowed constitutional status in Member States. To adopt such rules at EU level having Article 31.1.c TEU as a legal basis may change the character – and subsequently the interpretation – of such rights at EU level. The Commission talks about an equivalent (and not a high level of) treatment of suspects on the basis of minimum standards which are there to enable efficient judicial co11 Convention on the Future of Europe, Final Report, Working Group X on ‘Freedom, Security and Justice, (Brussels, 2003), p. 8. 12 Ibid., p.11. 13 For an overview of the case-law, see the Opinion of AG Fennelly in the Tobacco Advertising case (C-376/98), especially paragraph 61.

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operation in criminal matters.14 However, procedural rights are there to protect the individual against State abuse, delimiting thus the State-citizen relationship in a democratic society, and not to facilitate judicial co-operation and prosecutorial efficiency. It is essential that this distinction is made at EU level. 2.4. The effect of the proposal on harmonisation of rules on criminal procedure is unclear but potentially far-reaching Whether one accepts these arguments or not, it is clear that any EU measure on defence rights will have a major impact on national criminal justice systems and on the relationship between the EU and Member States in this domain. It is inevitable that Member States must reach a common understanding, if not definition, of concepts such as ‘criminal proceedings’, ‘suspect’ and ‘defendant’ if this measure is to work at all.15 Indeed, one of the most controversial provisions in the negotiation of the proposal has been the article on the definition of ‘criminal proceedings’ – with some Member States arguing for the inclusion in the text of a list of specifically defined proceedings and others supporting the introduction of generic criteria without specifying proceedings.16 It is indicative of the difficulties in this task that the original Commission references to a ‘suspected person’ have been deleted in Council working groups. Whatever the result to be achieved, it should be noted that these concepts, once they form part of Community/Union law, may take a life of their own when interpreted by the Court of Justice. As demonstrated by the Pupino judgment of the Court,17 this may be a different life to the one they have in their national context. In this process, it may be difficult to distinguish between the Court interpreting concepts and rights for the purpose of implementing the specific Framework Decision and the Court in fact evaluating national criminal procedure standards, thus changing the balance in national criminal justice systems as such.18 The situation may become more complex in the light of the Commission’s intention to work towards the creation of a ‘permanent back-up for mutual recognition’ covering measures such as the presumption of innocence and decisions in absentia. 19 The challenges to State sovereignty – and citizens’ perception of it – in the criminal justice are growing.

14 See above. 15 See Council of the European Union, Document no 8578/05, on the various approaches floated regarding the definition of criminal proceedings and derogations. 16 See Council of the European Union , Document no 12353/05. 17 See below. 18 See also the point made by Eurojust in their evidence to the House of Lords European Union Committee, Procedural Rights in Criminal Proceedings, p. 111. 19 See Commission of the European Communities, Communication ‘on the mutual recognition of judicial decisions in criminal matters and the strengthening of mutual trust between Member States’, COM (2005) 195, (Brussels, 19 May 2005), p.6.

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3. Building Trust through Evaluation Another trust-building mechanism which has been gaining momentum in recent years is the evaluation of the criminal justice systems of Member States. The Commission’s proposed Framework Decision on defence rights contains a provision on evaluation and monitoring of the measure, carried out under the supervision of the Commission and resulting in reports which may be published.20 More generally, the European Constitution contains a specific provision calling for ‘objective and impartial evaluation’ of the implementation of EU Justice and Home Affairs policies by Member States – evaluations conducted by Member States in collaboration with the Commission.21 On the other hand, a recent Commission proposal for a Regulation establishing an EU Fundamental Rights Agency calls for the Agency collecting and analysing data ‘including results from research and monitoring communicated to it by Member States, Union institutions, Community agencies, research centres, national bodies, non-governmental organisations, relevant third countries and international organisations’.22 The objective and impartial evaluation of the implementation of EU JHA legislation, especially in areas related to the rights of the individual, is unobjectionable in principle. However, as with the defence rights proposal, the current state of European integration poses some complicated challenges, a central one being related again to the issue of competence and legal basis. The draft Regulation, which is based on Article 308 of the EC Treaty, would create an Agency responsible for monitoring human rights not only in the first, but also in the third pillar. The legality of using a first pillar legal basis to enable EU action in the third pillar is questionable. The point has been raised by both Houses of the UK Parliament in the context of their scrutiny of the proposal, but no satisfactory response has been provided by the UK Government.23 In addition, most of these proposals are very broad and leave many interrelated questions unanswered. Some of these questions are:

20 Article 15 – but Member States are opposed, see Council doc. 8578/05. 21 Article III-260 of the EU Constitutional Treaty. 22 Commission of the European Communities, Proposal for a Council Regulation establishing a European Union Agency for Fundamental Rights and Proposal for a Council Decision empowering the European Union Agency for Fundamental Rights to pursue its activities in areas referred to in Title VI of the Treaty on European Union, COM (2005) 280, (Brussels, 30 June 2005), Article 4.1.a. The Agency would also cover third pillar matters – see accompanying Decision. 23 See letter of 20 October 2005, from L. Grenfell, Chairman of the House of Lords EU Committee, to Baroness Ashton of Upholland, Minister for the Department for Constitutional Affairs, and her response of 8 November 2005.

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3.1. Who will evaluate? Will it be the Commission, thus extending its first pillar role to third pillar matters? Will it be the Member States, through peer review? And if yes, what would the role of the Commission be? Will the Fundamental Rights Agency itself evaluate? And, if yes, what would be the role of the Commission/Member States in this context? The reluctance of Member States to accept Commission-led evaluation in the context of the defence rights proposal does not leave much scope for optimism regarding the possibility of ‘outsourcing’ evaluation to other EC/EU institutions or agencies- but this would also depend on the nature and ‘teeth’ of such evaluation. 3.2. How will Evaluation take place? Will it be based on reports solely by Member States or will wider sources be taken into account, along the lines suggested in the proposal for the Fundamental Rights Agency? Will it take place in the form of peer reviews, with Member States evaluating each other? What, if any, will be the role of independent experts (and for that matter, the EU Network of Fundamental Rights experts)? Will the results of the evaluation be made public? 3.3. What will be evaluated? The above documents suggest that evaluation will concern the implementation of EU legislation. However, it may be difficult to distinguish between the evaluation of the implementation of a specific EU measure (such as the defence rights proposal) and the evaluation of a Member State’s criminal justice/human rights protection system as a whole. The existence of EU competence to embark on such a far-reaching evaluation is questionable. The Commission’s recent Communication on mutual recognition however hints at a broader evaluation, ‘a more general evaluation of the conditions in which judgments are produced in order to ensure that they meet high quality standards enabling mutual trust between judicial systems to be reinforced’ providing ‘a fully comprehensive view of national systems’.24 3.4. What are the ‘teeth’ of the evaluation? This is a fundamental question inextricably linked with the form of the evaluation. What will be the sanctions for Member States which do not comply? Is ‘naming and shaming’ of non-compliant Member States the best solution? Will non-compliance involve a fine? Will there be an overlap with the powers of the Commission to institute infringement proceedings in criminal law matters falling within the first pillar, or in 24 Commission of the European Communities, Communication on the mutual recognition of judicial decisions in criminal matters and the strengthening of mutual trust between Member States, COM (2005) 195, (Brussels, 19 May 2005), pp. 8-9.

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an eventual merging of the pillars? Will a positive assessment of implementation preclude such proceedings? Will such assessment, especially by an independent body, serve as a ‘certificate of compatibility’ with human rights/EU law? What is the relationship between a negative evaluation and the triggering of the mechanism of Article 7 TEU?25 There are no simple answers to these questions, which demonstrate the complexity of the situation in the current stage of European integration. 4. The Role of the Court of Justice The Court of Justice has started playing an important role in the development of a European judicial area in criminal matters. In a landmark recent ruling, Pupino,26 the Court effectively granted indirect effect to (third pillar) Framework Decisions, which currently lack direct effect. It ruled that the national court is required to take into consideration all the rules of national law and to interpret them, so far as possible, in the light of the wording and purpose of the Framework Decision in question (on the rights of victims in criminal proceedings). According to the Court, the binding character of framework decisions, formulated in terms identical to those of the third paragraph of Article 249 TEC (on directives), places on national authorities, and particularly national courts, an obligation to interpret national law in conformity with Community law.27 The impact of Pupino may be considerable vis-à-vis both the mutual recognition measures already adopted and those being negotiated (such as the European Evidence Warrant) and the trust building measures such as the Framework Decision on defence rights currently under negotiation.28 As regards the defence rights proposal, Member States may prove to be even more reluctant to adopt the measure or to leave in it any meaningful protective standards. Pupino involved a protective measure on the rights of victims after all and the Court effectively modified the provisions of a national (the Italian) criminal code interpreting them in the light of Union law. Such prospect in the context of defence rights may not be reassuring for Member States anxious not to change their standards – but may be a welcome step towards the effective protection of defence rights. For that reason it becomes very important to frame

25 The EU Network of Independent Experts on Fundamental Rights has recently proposed to combine the evaluation mechanism of Article III-260 of the Constitution with improving the mechanism of Article 7 TEU – Report on the situation of fundamental rights in the EU in 2004, p. 31. 26 Case C-105/03, M. Pupino, Judgment of the Court of 16 June 2005. 27 Ibid., paragraph 34. 28 Indeed, the UK Government has already indicated in recent Explanatory Memoranda submitted to Parliament that the implications of Pupino must be identified in the context of the defence rights proposal- see letter of 3 November 2005 (L. Grenfell, Chair of House of Lords EU Committee, to F. Mactaggart, Home Office Minister).

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the Framework Decision as a protective, human rights measure and not merely as a measure facilitating judicial co-operation. On the other hand, Pupino may have an adverse effect on trust-building measures such as the defence rights proposal, by placing – perhaps inadvertently – greater emphasis on the quasi-automatic functioning of mutual recognition at the expense of common EU standards. Pupino may point out towards an interpretation of the European Arrest Warrant and other mutual recognition measures as measures that have to be implemented solely on the basis of mutual trust. This view is reinforced when one combines Pupino with the Court’s judgment in Gozotok and Brugge29, where the Court stressed the implication that, in third pillar or Schengen cases involving ne bis in idem, ‘Member States have mutual trust in their criminal justice systems and … each of them recognises the criminal law in force in force in the other Member States even when the outcome would be different if its own national law were applied’.30 This may lead towards a restrictive interpretation of the grounds of refusal of execution of a European Arrest Warrant or confiscation/freezing order, and to a reduction of the grounds of refusal in the European Evidence Warrant, if these measures are viewed as reflecting a spirit of mutual trust.31 Such an approach, emphasising trust, might also render the attempt for common procedural rights obsolete. 5. Conclusion – The Need for Democratic Debate on EU Criminal Law This chapter attempted to cast light on the complexities surrounding the development of a European judicial area in criminal matters on the basis of mutual recognition. The manner in which the mutual recognition agenda has proceeded, with the swift adoption of the European Arrest Warrant post-9/11 setting a precedent for similar mutual recognition measures, has pushed enforcement/coercive measures, supposedly based on mutual trust, forward. Member States, willing to push on with these measures, feel constrained to move on to harmonisation/action in the field of protection of the rights of the individual – some of them on grounds of maintaining national sovereignty and lack of EU competence. While the results this brings are not optimal for the protection of the individual against the State, critical arguments are 29 Joint cases C-187-01 and C-385-01, 11 February 2003. 30 Ibid., paragraph 33. 31 This would be in line with the Commission’s view in its Report on the implementation of the European Arrest Warrant, arguing that some Member States extended the grounds for refusal too far by including human rights related grounds. See Commission of the European Communities, Report from the Commission based on Article 34 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, COM (2005) 63 final, (Brussels, 23 February 2005). The impact on countries like Germany, where the Bundesverfassungsgericht recently ruled that the implementing law on the European Arrest Warrant contained too sketchy grounds for refusal without paying sufficient regard for human rights ( 2 BvR 2236/04, judgment of 18 July 2005) would also be noteworthy.

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not devoid of legal merit and may also serve as a political check to EU institutions attempting to advance European integration without express Treaty authorisation. On the other hand, (some) EU citizens have loudly demonstrated their disapproval of the European project and of policies on which they feel they have not been consulted – and national objections to EU action without an express legal basis in the Treaties may be more easily be justified in the current climate as addressing citizens’ disengagement from the European project. In the criminal law field, ironically this means for now that the all the benefits for the citizen that the Constitution would bring in third pillar matters are being frozen, and ‘protective’ measures such as the defence rights initiative moves extremely slowly, while the European Arrest Warrant has now been fully implemented. This creates an imbalance in EU criminal law, which is exacerbated by the constant focus on mutual recognition (which is an easier short-term solution for Member States as it will not, at least visibly and immediately, result in major changes in their domestic law), at the expense of (and not in conjunction with) harmonisation of criminal law or an attempt to achieve a better common understanding of the aims and objectives of criminal law in a borderless Union. In the light of the considerable implications of the current criminal law framework on fundamental rights, but also on the very legitimacy of the European Union (which is currently being speedily transformed from a market to a demos by virtue of its involvement in criminal matters, and hence in the relationship between the individual and the State), this may be the right moment to address the disengagement of EU citizens in this field, by focusing on these imbalances and the incrementalism in the development of EU criminal law and starting a general democratic debate on the future and direction of EU criminal law, a debate that has been virtually non-existent thus far.

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Chapter 16

The Development of JHA: Policy Recommendations Thierry Balzacq and Sergio Carrera

This chapter moves from a critical discussion of policies and legislative instruments developed by the Hague Programme to considering the possibility of achieving policy optimilisation in the Area of Freedom, Security and Justice (AFSJ). This step in the analysis goes some way towards putting forward a set of policy recommendations that emerge from the volume and examining why the operational side of the Hague Programme has yet to deploy its full potential. We organize the policy recommendations around the structuring axes of this volume: Freedom, Security and Justice. 1. Strengthening Freedom The establishment of a common EU policy in the areas of immigration, borders and asylum consists not simply of enacting more EU legislation or tightening up border controls. It entails the creation and consolidation of a system that places legitimacy, efficiency, equality and solidarity at the heart of its development, as elaborated below. 1.1. Legitimacy Any legislative measure dealing with immigration, borders and asylum needs to respect the human rights instruments and international/EU commitments that all EU member states are party to. Respect for the fundamental rights and freedoms of every human being (liberty) and the rule of law (justice) needs to be taken as the guiding star in every security measure being developed. Although at first glance this idea may sound obvious, but it has not always been applied. ‘Security, it should be remembered,’ only comes from the respect and protection of human rights and fundamental freedoms through the rule of law.

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1.2. Efficiency The ongoing struggle between national and EU competences (i.e. the communitarian vs. intergovernmental method) as regards immigration, borders and asylum policies should be resolved. A proactive EU policy should depart from narrow, nationally oriented and nation-state views of the politics and philosophies concerning these areas. Also, the obscure and ambiguous situation in which policies that deal with these matters reside in both the EC first pillar and the EU third pillar needs to be resolved as a matter of priority for the sake of efficiency, efficacy, transparency and democratic/judicial accountability. The entry into force of the EU Constitutional Treaty would have greatly helped to achieve this and, hence, address many of the current vulnerabilities and obstacles. 1.3. Equality Fair and equal treatment between EU citizens and third-country nationals should be the real goal pursued in any immigration and asylum-related measure. In keeping with the spirit of the Opinions adopted by the European Economic and Social Committee in these fields, we plead for a higher level of policy convergence that recognises and facilitates equal treatment. The Tampere European Council Conclusions (1999) insists that it is necessary to establish a common EU framework by which legally resident, third-country nationals would have a status as near as possible to that of the nationals of EU member states. Indeed, facilitating equality of treatment and full access to economic, social, cultural, religious and political rights and freedoms should be the focus of efforts. Along these lines, specific recommendations include: •

•

•

•

The transitional arrangements applied to workers coming from eight of the ten new EU member states should be abolished in conformity with the right of equal treatment and non-discrimination on grounds of nationality, as ensconced in the EC legal framework and the proactive case law of the European Court of Justice. A constructive agreement on labour/economic migration as well as on admission conditions needs to be given a priority status. The full inclusion of third-country nationals into the receiving labour markets is important for the sake of social cohesion and the future of the EU. The lack of an EU framework on access to judicial redress by third-country nationals constitutes a serious weakness. Thus, a legislative proposal on minimum judicial guarantees for individuals in relation to decisions regarding the removal of persons (and of third-country nationals in particular) should be put in place to ensure proper juridical protections and access to effective legal and judicial remedies. The set of mandatory integration conditions (the lack of integration as a ground for refusal of the secure status) that have been included in the Council Directives on the right to family reunification and long-term resident status should be revisited.

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1.4. Solidarity Migration will increase in the EU. Common policies and strategies that recognise this phenomenon and the de facto intercultural European Union, and directly tackle the negative consequences that these trends may provoke in the receiving societies (i.e. exclusion, racism and xenophobia) are therefore essential. Effective and comprehensive policies that combat racism, xenophobia and discrimination are needed to protect and guarantee a cohesive society. In this regard, a close scrutiny of the adequate of the EU framework on equal treatment must be carried out. This involves a timely execution of the Council Directive implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (2000/43/ EC), as well as the Directive establishing a general framework for equal treatment in employment and occupation (2000/78/EC). 2. Strengthening Security and Justice The European security strategy revitalised by the Council Declaration on the EU Response to the London Bombings of 13 July 2005 should be checked against the principles of legitimacy, proportionality and effectiveness. In addition, some have claimed that a number of policy instruments of the EU Action Plan combating terrorism, and particularly those dealing with judicial cooperation in criminal matters, remain disputable in relation to the existence of a lack of mutual trust among EU counterparts.1 We propose, therefore, that appropriate steps be taken in order to strengthen trust. 2.1. Legitimacy and the rule of law The main risk is that the principle of legitimacy and the rule of law are endangered by the very legal framework under which measures crafted to ‘fight terrorism’ are being adopted – the EU third pillar.2 Indeed, any cooperation in these fields continues to be carried out on a purely intergovernmental basis, falling outside the Community

1 S. Alegre and M. Leaf, “Mutual Recognition in European Judicial Cooperation: A Step Too Far Too Soon? Case Study – The European Arrest Warrant”, European Law Journal, Vol. 10, No. 2, March 2004, pp. 200-217. J. Apap and S. Carrera, The European Arrest Warrant: A Good Testing Ground for Mutual Recognition in the Enlarged EU?, CEPS Policy Brief No. 46, CEPS, Brussels, February 2004. Anderson, M. (2002), “Trust and Police Co-operation”, in Anderson, M. and J. Apap (eds.) (2002), Police and Justice Co-operation and the New European Borders, Book Series: European Monographs, Vol. 40, The Hague: Kluwer Law International, pp. 35-46. 2 Title VI of the Treaty on European Union, Provisions on Police and Judicial Cooperation in Criminal Matters, Arts. 29-43.

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method.3 This has the negative consequence of preventing a direct and transparent involvement of the European Parliament and the European Court of Justice. We think that the European Parliament should be included in the decision-making procedures to guarantee the democratic accountability of the legal instruments being adopted and enforced. In the same way, the role of the European Court of Justice should be strengthened to ensure judicial review and the protection of the rule of law.4 Indeed, the involvement of the judiciary is of utmost importance if it wants to protect its democratic values and the individual. 2.2. Proportionality It is held that any security instrument adopted should be assessed through the lens of the principle of proportionality. This principle is grounded upon two assumptions. First, the European Community acts only when it is necessary or ‘required’ to do so in order to achieve a certain end. This entails the idea of a balanced relationship between means and ends. Second, and more importantly, it requires that the measures adopted are the least restrictive to freedom. 2.3. Effectiveness Scepticism persists over whether JHA legal instruments are effective in curbing threats to the EU. Moreover, the political struggle taking place, in order to ensure that the intergovernmental method of cooperation remains the central unit for security policies, undermines the efficacy and effectiveness of the acts themselves. To reiterate, the EU’s third pillar has three weaknesses: 1) it is based on the unanimity rule; 2) it excludes the European Parliament and the European Court of Justice; and 3) it introduces a lack of transparency in the decision-making process. The efficiency and overall usefulness of the operational setting is, as a consequence, sapped. In this light, a good example in the fight against terrorism and organised crime is the Treaty of Prüm or Schengen III. This Treaty aims at reinforcing transnational cooperation against organised crime, terrorism and illegal immigration while setting aside the European Community framework. The Treaty of Prüm thus proposes to cement the interchange of information between the law enforcement and security agencies of the signatories. It widens the power of these security agencies (through the creation of national contact points being appointed in accordance with national

3 See T. Balzacq & S. Carrera, Migration, Borders and Asylum: Trends and Vulnerabilities in EU Policy, CEPS, Brussels, July 2005. 4 See ELISE (European Liberty and Security) Project Conclusions and Policy Recommendations (2006), which states that “a strict and consistent application of the rule of law stands as the necessary cornerstone of the European regime of governance as applied in the area of freedom, security and justice”. See also the ELISE Project Final Synthesis Report (2006). Both documents might be retrievable from www.libertysecurity.org.

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law) to have direct and automatic access to DNA and fingerprint data in another participating member state in order to prevent ‘terrorist attacks’. The picture that emerges is one of dispersed policies in the field of terrorism, and consequently ‘less Europe’. The danger is to turn the EU into a shadow body that legitimises instruments ratified by certain of its members, on different occasions, within different settings. The communitarisation of this cooperation (bringing it under the Community method) and the use of the co-decision procedure (Art. 251 EC Treaty) is therefore required. 2.4. Mutual confidence and trust EU cooperation in security and justice dimensions is a case in point of the mistrust among law enforcement and security agencies, as well as the judicial authorities in the EU. This is mainly ascribable to the different legal and historical traditions, visions and philosophies of each of the Member States of the EU project. Trust is essential for maintaining stable relationships, and it is particularly vital for effective cooperation in the field of justice and home affairs. The establishment of a high level of trust is closely intertwined with the progressive establishment of an AFSJ. The European Arrest Warrant (EAW) represents one of the first legal instruments implementing the principle of mutual recognition of decisions in criminal matters formally adopted by the Council. It has, however, shown the persisting lack of mutual confidence about member states’ intentions and respective judicial/legal systems. The deep difficulties that surfaced during the implementation processes at the national level have affected both the efficiency and credibility of the regime. In short, lack of trust, or rather clear proof of mistrust seems to be a pervasive factor of the whole debate. In summary, strengthening the EU AFSJ has been identified as a strategic objective for the period 2005-09.5 The policies developed in this field are sources and expressions of the kind of identity and image that the EU wants to promote about itself. Because perceptions of identity and image evolve, policies on immigration, borders and asylum are bound to change. Whatever transformations they may undergo, these policies must not become divorced from principles that make the EU a distinctive AFSJ. All this calls for a reinvigoration of serious concerns about liberty within a democratic tradition that has always had at its core the emancipation of individuals.

5 European Commission, Communication from the President in agreement with Vice-President M. Wallström, Strategic Objectives 2005-2009, Europe 2010: A partnership for European renewal, prosperity, solidarity and security, COM(2005) 12 final, Brussels, 26.1.2005.

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Name Index

Adolfini, A. 9 Agamben G. 89 Andréani, G. 244 Andriessen, F. 209 Alegre, S. 26, 184, 235 Alvaro, A. 130 Anderson, M. 4, 115, 117, 194, 201, 224, 229, 293 Asinari, M. V. P. 257 Apap, J. 4-5, 107-108, 115, 117, 123, 167, 194, 201, 224, 226, 229, 232, 293 Bailes, A. J. K. 244 Baldwin, D. A. 119 Balibar, E. 88 Balzacq, T. 4, 27, 89, 104, 112, 115, 117, 119-120, 224, 231, 271, 294 Barr, S. 159 Batt, J. 194, 198, 211, 216, 250 Battje, H. 63 Bauman, Z. 36 Beatty, A. 217 Bellamy, R. 92 Bertani, M. 42 Bertossi, C. 93 Bertram, C. 244 Beurdeley, L. 199 Besselink, L. F. M. 101 Bicchi, F. 205 Biezeveld, R. 93 Bigo, D. 36, 40, 43, 89, 120, 123, 133, 138 Boeless, P. 5 Bogusz, B. 13-14 Böcker, A. 100 Booth, S. 273 Brandl, U. 72 Brimmer, E. 244 Brouwer, E. R. 62, 91 Brubaker, R. 91, 100 Bruycker, P. de 62, 72 Bülent, G. 43 Búrca, G. de 4, 225

Bush, G. W. 158 Callovi, G. 167, 174, 179, 184 Caporaso, J. 117 Carlier, J.Y. 62 Carrera, S. 4-5, 9, 12, 27, 88, 89, 98, 107-110, 112, 115, 117, 120, 123, 167, 184, 224, 226, 229, 231, 271, 293-294 Catz, P. 91 Cholewinski, R. 13-14, 79, 106, 201 Checkel, J. 117 Clarke, C. 130 Cole, D. 43 Costa, A. 266-267 Cowles, M. G. 117 Craig, P. 4, 225 Crawford, G. 219 Crowley, J. 14 Cygan, A. 13 Cyrus, N. 94 Dannereuther, R. 214, 221 Davy, U. 101 De Groot, G. R. 7 Deighton, A. 244 Delors, J. 164 Delumeau, J. 40 Den Boer, M. 4, 133, 232 Diab, K. 213 Diedrichs, U. 246-248 Duke, S. 244 Dumont, J.-M. 241 Dunay, P. 221 Dupuy, J. P. 40 Eising, R. 117 Elsen, C. 133 Entziger, H. 15, 93 Erzan, R. 88 Ewald, F. 42

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Security Versus Freedom?

Faria, C. 194 Favell, A. 91, 104, 111 Fijnaut, C. 229 Firmin, A. 98 Fontana, A. 42 Fontenelles, J. B. 133 Formisano, M. 98, 109 Foucault, M. 42 Garden, T. 244 Ginsberg, R. H. 241 Gsir, S. 95, 101, 104 Goetz, K. H. 117 Górny, A. 8, 93 Grabbe, H. 206 Grant, C. 244 Grenfell, L. 287 Groenendijk, K. 107 Guild, E. 7, 13-14, 43, 89, 91, 110, 133, 138, 184, 227-228, 230, 237, 259 Guittet, E. 43, 122 Harlow, C. 14, 227 Hart, B. de 100 Hayes, B. 141 Hershberg, E. 40 Hert, P. de 3 Herz, J. 44 Heymann, P. B. 43 Hill, C. 206, 241, 244, 252 Hobbing, P. 160, 162, 171 Hollifield, J. F. 15 Howorth, J. 242-243 Hunter, R. 244

König, K. 98, 100 Kostakopoulou, T. 92 Kowal, P. 199 Kubosova, L. 163 Kuijper, J. P. 3, 189 Kurpas, S. 246, 248 Ladrech, R. 117 Lavenex, S. 189 Leaf, M. 26, 235 Leroux, O. 257 Light, M. 217 Lodge, J. 259, 262, 269, 272 Lowenhardt, J. 217 Luhman, N. 136 Lyon, D. 62 Macey, D. 42 MacFarlane, S. S. 220 Mactaggart, F. 287 Maguer, A. 171 Marinelli, V. 95, 104 Martiniello, M. 15, 95, 101, 104 Matl, S. 242 Mas, P. 97 Maynes, C. W. 37 Meireman, K. 95, 101, 104 Meyers, D. W. 158 Michalowski, I. 95, 99-100 Monar, J. 194 Morawska, E. 88, 91, 100 Morgan, C. 281 Moore, K. W. 40

Iglicka, K. 97

Niemenkari, A. 166 Niessen, J. 94-95, 97-98, 100-101, 104 Numieri, M. A. 75

Jimeno-Bulnes, M. 26 Jonhston, M. L. 130 Jopp, M. 242, 244, 246-248 Joppke, C. 88, 91, 100

Ortega, M. 250 Orwell, G. 37

Kagan, R. 37 Kalish, R. 163 Kallas, S. 274 Kazmierkiewicz, P. 97, 194, 200 Kirisçi, K. 88 Kohler-Koch, B. 117 Kolkott, J. 79-80

Palko, V. 163 Panebianco, S. 213 Papademetriou, D. G. 158 Papas, S. A. 165 Pawlicki, J. 217 Payares, M. 97-98 Peers, S. 3, 27, 104, 177, 227-228, 266, 272 Pennins, R. 93

Name Index Perchinig, B. 98, 100 Philippart, E. 133 Pinyol, G. 97 Pirker, H. 71, 258 Poincignon, Y. 126 Prodi, R. 211, 218 Pupino, M. 225 Radaelli, C. M. 117 Redpath, J. 130 Regelsberger, E. 241-242 Risse, T. 117 Ruggie, J. G. 210 Ruspini, P. 8, 93 Scheptycki, J. E. 120 Schibel, Y. 94-95, 97-98, 100-101, 104 Schmalz, U. 250 Schmidt-Vockenhausen, M. 173 Schneider, H. 11-12, 92, 104, 108 Serra, A. 97 Setton, P. 241 Slavenas, E. 201 Solana, J. 26 Soltyk, R. 217 Steele, J. 217 Stubb, A. 132 Süssmuth, R. 92-93

Urbano de Sousa, C. D. 62, 72 Urth, H. 110 Vakkuri, L. Y. 189 Van Selm, J. 89, 104 Van den Wyngaert, C. 229 Van der Ploeg, I. 62 Van der Rijt, W. 133 Vogel, D. 94 Walker, N. 229 Walker, R. B. J. 43 Wallace, H. 241 Wallace, W. 241 Wallström, M. 295 Warleigh, A. 92 Weidenfield, W. 92-93, 244 Weinar, A. 97 Wenden, C. de 15, 92-93 Wessels, W. 244, 246 West, J. 95, 101, 104 White, B. 241 White, S. 217 Whitman, R. 205 Wise, J. 263 Xalabarder, A. 97 Youngs, R. 213

Tchorbadjiyska, A. 194 Thompson, C. 94-95, 97-98, 100-101, 104 Toggenburg, G. N. 107 Tonra, B. 243 Trzeciak, S. 205 Turmann, A. 9

Zagorski, A. 218 Zaiotti, R. 132 Zanders, P. 173 Zieloncka, J. 216

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Subject Index

Amsterdam, see also Treaty of Amsterdam 2, 4-5, 10-11, 14, 17, 25, 45, 61, 109, 132-133, 167, 184, 186, 189, 223, 226-227, 232, 234-236, 274 Area of Freedom, Security and Justice (AFSJ) 1, 2-3, 5-13, 27-29, 31, 65, 77, 110, 117-118, 135, 155, 165, 184, 188, 194, 197, 199-200, 202203, 223-224, 226-229, 231, 234, 238, 260, 266, 291, 294 Biometrics, see also DNA and fingerprints 5, 21, 23, 24, 37, 62, 130, 139, 145, 148-152, 174, 179-180, 184, 258, 262, 265, 268-273 Border, see also Integrated Border Management (IBM) 3-4, 6, 8-9, 14-15, 1821, 23-24, 29, 31, 36-37, 41, 43, 48, 52, 61-62, 64-66, 68-69, 71-76, 80, 107, 112, 115, 117, 121, 134, 137, 146-147, 152, 154, 181, 183-204, 205-206, 208, 211, 214, 216, 221222, 224, 226, 229, 231, 233, 257265, 267, 269, 271-277, 291-295 Border Management Agency 20, 179 Citizen, see also EU citizenship 3-4, 7-9, 22, 26-27, 36, 41-43, 88-89, 93, 98, 101, 105, 108-109, 126, 139, 152, 194, 223, 226, 228-229, 232, 237, 257260, 262-271, 273-277, 292 Common Foreign and Security Policy (CFSP) 19, 24, 31, 241, 252 Constitutional Treaty 31, 111, 133, 156, 178, 184, 208, 223-225, 227-230, 232, 237-238, 242, 245-246, 248-249, 252-253, 265, 282, 285, 292 Cross-border crime 19, 23, 115-116, 119, 130, 193, 200, 202, 276 DNA 123, 130-131, 173, 263, 295

Ejustice 267 Enhanced co-operation 3, 133-134, 193, 201 EU citizenship 6, 8-9, 11-13, 35-36, 66-67, 77-78, 109, 237 EURODAC 17, 30, 62-73, 75-76, 131-132, 137, 145-147, 149-153, 264, 267, 271 European Arrest Warrant (EAW) 25-27, 144, 229, 235, 257, 280, 288-289, 293, 295 European Border Code 31, 177, 180 European Convention of Human Rights and Fundamental Freedoms (ECHR) 15, 79-82, 84-85, 107, 125, 148 European Court of Justice (ECJ) 4, 28-29, 59, 70, 79-80, 83, 108, 126, 136, 225, 227, 230, 234, 292, 294 European Neighbourhood Policy (ENP) 31, 199, 205, 207, 210, 212, 219, 221, 245 Europeanization 1, 7, 10, 116-118, 243, 250 Family reunification 2, 12, 13, 30, 78-84, 101, 107-108, 230, 292 Fingerprints 17, 22-24, 57, 63-64, 66-69, 71-75, 124, 130-131, 144-146, 149, 152, 174-175, 263, 267, 272 First pillar 2-3, 10, 25, 29, 136, 164, 224226, 229, 232-235, 237-238, 283, 285-286, 292 Free movement 2, 7-10, 14, 18, 35-36, 51, 61, 65, 71, 92, 108-109, 111, 123, 125, 133, 135, 137, 153, 164, 167, 171, 180, 183-184, 186, 189, 224, 226, 266, 268 Freedom, see also an Area of Freedom, Security and Justice 2, 3, 5-32, 35-44, 48, 59, 77, 83, 105, 107-108, 112, 117, 125, 133, 138, 164, 167, 169, 174, 184, 186, 189, 191, 194, 198203, 207, 219, 223-232, 234, 238,

312

Security Versus Freedom? 257-260, 264-266, 269, 271, 272, 275, 277, 280, 283, 291-292, 294

Hague Mandate, see also Hague Programme 1 Hague Programme 1-3, 5-8, 10-21, 23-25, 27-31, 35-37, 39, 41, 43, 59, 85, 105, 132, 135, 137-136, 145, 150, 155-156, 169, 174-175, 177-180, 184, 188, 196, 202, 264, 271, 291 Information exchange, see also information sharing 115-116, 119-121, 123, 125, 131, 134, 171, 260-261, 265, 272-273 Information sharing 19, 137, 143, 271 Integrated Border Management (IBM) 31, 137, 155-182, 184-185, 187 Integration of immigrants, see also integration programme 36, 78, 80-81, 84, 109-112 Integration programme 30, 111 Irregular (illegal) migration, see also regular migration 10, 13-19, 21, 78, 85, 90, 112, 115, 127-130, 135, 137, 145, 147, 149, 151, 155, 166-168, 184, 196, 200 Judicial co-operation in civil matters 4, 2426, 29, 32 Justice, see also an Area of Freedom, Security and Justice 1-13, 15-17, 32, 35, 38, 40-41, 43-44, 70, 85, 120, 123, 141, 148, 154-155, 164-165, 168-170, 174, 183-184, 186, 188189, 191, 194, 197-203, 207, 213, 223-232, 234-238, 258-260, 262, 265-267, 271-272, 274-275, 277, 279-288, 291-295 Labour movement 9 Migration, see also irregular and regular migration 2-15, 18-19, 21, 23, 26, 30, 36-37, 41, 43, 77-85, 87-101, 104-112, 115-117, 119-120, 124, 128, 174, 178, 185-187, 189, 202, 210, 219, 226, 229-231, 237, 259, 267-272, 292-294

Policy convergence 1, 10-11, 24-25, 292 Principle of availability 19-20, 31, 116-117, 123-124, 126, 131, 135, 137-138, 261, 264, 271 Prüm (Treaty of), 30-31, 115-136 Readmission policy 14, 30, 78, 135, 157, 165-166, 174, 185, 201-202 Regular (legal) migration 10-12 Return policy, see also readmission policy 14-15, 36, 61, 76, 78, 127, 135, 147, 149, 151, 163, 174, 176, 187 Schengen 20, 37, 64, 67, 68, 115, 117, 121, 128-129, 132-135, 141, 144145, 151-154, 155, 157, 159-163, 165-174, 177-181, 183, 185-198, 200-201, 232 Security, see also an Area of Freedom, Security and Justice 1-7, 9-10, 1415, 17-19, 21-32, 35-44, 48, 59, 64, 70, 85, 89-91, 108, 111, 115-123, 125-126, 129, 131, 135-136, 138, 140, 148, 154, 157-162, 166-169, 171-172, 174-181, 184-186, 191193, 196, 198-200, 202, 207-208, 210-211, 214, 216, 218, 220-221, 223-229, 231-232, 234, 238, 241, 243-245, 249-250, 252, 257-267, 269-270, 272-277, 283, 291, 293295 VIS18, 20-23, 31, 132, 137, 143, 147, 148-154, 174-175, 264, 267, 271 SIS (SIS II) 18, 22, 23, 31, 132, 137, 139145, 148-152, 154, 166, 174, 196197, 264, 267, 269, 271 Tampere, see also the Tampere European Council 5, 10-11, 16, 37, 45-46, 180, 267, 274, 279, 292 Tampere European Council 5, 10, 24, 45, 77-78, 98, 109, 112, 164, 292 Terrorism 3, 5, 6, 18-19, 23-27, 31, 40, 43, 90, 91, 115-116, 119-122, 124, 126, 130, 137-138, 147, 149, 158, 168, 202, 213, 219-220, 229, 244, 257258, 260, 264, 267-268, 271-272, 274, 293-295

Subject Index Third pillar 2-4, 25-26, 29, 62, 118-125, 136, 138, 141, 164, 170, 183, 228, 232-235, 238, 279, 285-289, 292294 Transparency 4, 25, 31-32, 42, 135-136,

313

149, 224, 232, 258-262, 265-266, 268-269, 273-275, 277, 292-294 Treaty of Amsterdam 2, 4, 10, 25, 45-46, 54, 59, 61, 64, 77, 123, 132-133, 167, 184, 186, 189, 234-236