elspeth paper
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Danger - Borders under Construction: assessing the first five years of border policy in
an area of freedom, security and justice
By Elspeth Guild1
Introduction
Since my inaugural lecture in May 2001 (Moving the Borders of Europe), there has been an
explosion of academic interest and publication regarding the borders of the Member States,
their changes and their meaning. This body of literature spans a wide range of disciplines
including, of course law and international relations but also sociology, anthropology and
geography. Along with border studies, there has also be a substantial enrichment of the
academic literature regarding identity and its relationship with border.
In my inaugural lecture I sought to examine borders as regards their function as a line of
differentiation for the movement of persons. My starting point was that the border for
movement of an individual is the place where a control takes place which is constitutive of
whether the individual can pass or not. My premise was a search for the position of this
border in the law and practice of the European Union. For persons it is the control of the
border which is determinant of movement. In both law and practice the border for the
movement of persons to and within Europe is no longer consistent with the edges of the
physical territory of the Member States.
In May 2001 the new legal configuration of the EU border created by the insertion of the
Schengen acquis into EC and EU law was only two years old. The transitional period of 5
years had started on 1 May 1999 from which point the Schengen acquis gradually adjusted
into the EU. There was still a substantial lack of clarity as to what the acquis meant. Now,
four years on, there have been substantial changes. First, the transitional period is over;secondly, the European Court of Justice has ruled on the continuation of the sui generis law
making arrangements which applied during the transitional period; thirdly, the first measure,
the Community Border Code has been approved for adoption under the co-decision
procedure with the European Parliament. However, the legacy of a body law, exclusively in
the form of regulations (ie measures which have direct application in the Member States and
do not, in theory at least, require transposing measures to have legal effects) and
implementing measures exclusively in the form of decisions (ie secondary legislation which
1 Professor of European Migration Law, Radboud University, Nijmegen, Partner, Kingsley Napley, London.
Many thanks to the European Commissions Framework VI project CHALLENGE which has made possible the
research on which this study is based. CHALLENGE brings together 23 universities and institutes in the EU toexamine the meaning of liberty and security after 11 September 2001 and 11 March 2004.
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have been adopted by the institutions in a manner which did not engage the full panoply of
constitutional norms which regulate the adoption of other types of measures such as
regulations or directives including limited EU justiciability) has continuing effects. The
challenge of the next five years will be the transformation of this field into one which is
applied consistently with the EU principles of rule of law.
In this chapter I shall revisit some of the sites which I examined in 2001 and see what has
happened as regards their development. I shall briefly review the Member States
engagement with borders in the recent past and briefly outline the measures which have
been adopted between 2001 and 2004. Then I will examine on the appearance on the scene
of two actors in the construction of EU borders. First, the European Court of Justice,
designed to provide certainty to law and silence (if gradual) to political discussion. The
adoption of laws in political contested areas tends to facilitate the early arrival on the scene
of the judges. The struggle for ascendancy as regards the definitive meaning of a law usually
ends in the courts, and wary the government which seeks to legislate to reverse the effect of
judicial judgments. The second actor is the European Parliament which participated under
the co-decision procedure for the first time in the approval of the Community Border Code. I
will note in particular where the contribution of the European Parliament has changed the
Code.
In a field as highly politically sensitive as the reformulation of borders for the movement of
persons, the complexity of the EU system which requires the brokering of agreement among
15 Member States (unless there are states entitled to opt out regarding border measures as
in the case of Denmark, Ireland and the UK so in practice 12) and since 1 May 2004, 22 (ie
the 25 minus Denmark, Ireland and the UK) means that quick change, in law or practice is
excluded. Once a measure is finally adopted through the laborious horse-trading of the EU
institutions and Member State ministries, and now the European Parliament, it is likely to
stay in place for a while. There are of course some exceptions but they are rare. By andlarge, legislative exhaustion sets in which creates substantial inertia. However, in order to
reach agreement on measures among such a large and diverse group, inevitably one
solution used all too frequently to resolve sticky problems is in-exactitude, or as some prefer
to call it fudge. The consequence of fudge is to delay clarity and to permit a number of actors
to go back to their constituencies claiming success in their bargaining endeavours. But
another consequence of fudge is to judicialise clarity. Areas which are left unclear are likely,
sooner or later, to be the sources of conflict as agreement was never really achieved. Once
solidified in law in a form which is highly resistant to rapid change, fudge becomes a problem
for the judges. Unhappy actors seeking to establish their claim to the correct meaning of a
provision against the claims of others will be drawn to the judicial the silence which must
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follow the pronouncement of the court. Of course, the judicial solution is one fraught with
risks it is the nuclear option, as after the Court has spoken, there is nowhere else to go
unless the actor is so courageous or foolhardy as to seek to return to the negotiating table.
In January 2005 the European Court of Justice handed down judgment on who is entitled to
construct the EU external border. This judgment resolved a struggle between the European
Commission and the Council (and behind it the Member States) regarding the exercise of
law making powers. The same month also saw the adoption by the Council of a decision,
foreseen by the Amsterdam Treaty to give the European Parliament real power in the
formulation of law in this field. The result of these two events has been to change
substantially trhe way in which EU border law is made. These changes, however, are likely
to strengthen the involvement of the European Court of Justice. This is so for two reasons.
First in the first measure to be adopted under the co-decision procedure, the European
Parliament successfully insisted on the inclusion of a right of appeal for persons refused
permission to cross the EU external border. The right of appeal introduces the national
judges who may be obliged to seek clarification from the European Court of Justice.
Secondly, some of the most sensitive areas covered by the Community Code have been the
object of fudge, which as I have indicated above tends to lead to the courts. The example I
will consider is the power of Member States to maintain checks behind intra-EU borders
within the border region. The changes which take place in the text of the Community Border
Code between proposal and approval for adoption have led to a provision which lacks clarity
and certainty. Where these characteristics are lacking, judicial interpretation is usually
required sooner or later.
The Distant Past
Until 1993 the European Union did not exist. It was created by a treaty (that of Maastricht)
agreed in 1991. Until that time there was the European Economic Community (and two otherCommunities which are not of relevance to this discussion) which lost its Economic tag by
virtue of the same treaty.2 The task of the European Economic Community, and following on
from it the European Community, is to achieve the common market, and an economic and
monetary union. In order to do this, it is necessary to achieve the abolition as between
Member States, of obstacles to the free movement of goods, persons, services and capital.3
2
When ratified the EU Constitution will replace the various appellations with one consistent title the EuropeanUnion. This is one of the consequences of the collapsing of the pillars, which is a story onto itself which I have
recounted elsewhere.3 Article 3(c ) EC; see also D. Wyatt & A. Dashwood, European Community Law, 3rd Edition Sweet &
Maxwell, London 1993.
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The main obstacle to free movement of persons between the Member States are border
controls on persons.
Part 3 Title III EC sets out the specific rights granted to individuals within the Community in
order to give effect to the abolition of obstacles to their movement the free movement of
workers, the self employed (ie establishment) and service providers and recipients. The
rights of the individual in each case in the Treaty are circumscribed by the states
appreciation of the needs of public policy, security and health. 4 The transitional period for
effect of these rights ended in 1968. So long as the European economy was flourishing
issues arising in the courts about free movement of persons were primarily limited to social
security co-ordination matters. However, once the downturn took hold after 1973 Member
States began seeking to expel migrant workers, including nationals of other Member States.
Recourse to rights contained in Community law limiting the right to expel to grounds of public
policy, public security and public health were the ground of dispute between the Member
States and the individual. By a series of judgments from 1974 onwards the European Court
of Justice, the court of final interpretation of Community law, found in favour of the right of
the individual to free movement.5
Although the objective of the common market remained consistent from the commencement
of the Community in 1957, the approach to borders and their control changed. The
preparatory work towards the new push for the Community led to the first major
intergovernmental conference on re-negotiation of the Treaties between June 1985 and
February 1986. The result was the Single European Act (SEA). Article 146 inserted into the
Treaty by the SEA which determined the internal market as an area without internal frontiers
in which the free movement of goods, persons, services and capital is ensured became the
flash point of the issue of Member States versus Community control of persons and in
particular third country nationals. The abolition of border controls on the movement of
persons among the Member States was not achieved within EC law by the deadline forimplementation: 31.12.92. Instead it was hived off into an intergovernmental agreement first
agreed among a minority of Member States. That process, which led to the creation of the
Schengen acquis, was finally re-introduced to EC law via the Amsterdam Treaty entering
into force on 1 May 1999 under the appellation of the area of freedom, security and justice.
The Less Distant Past Schengen
4 Article 39 EC and Directive 64/221 which is being replaced by Direcive 2004/38.5 41/74 Van Duyn [1974] ECR 1337; 67/74Bonsignore [1975] ECR 297; 36/75Rutili [1975] ECR 1219; 48/75
Royer[1975] ECR 497; 118/75 Watson & Belmann [1976] ECR 1185; 8/77 Sagulo [1977] ECR 1495; 30/77
Bouchereau [1977] ECR 1999.
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A small town in Luxembourg, Schengen, has been immortalised by the EU border debate.
As the place where the Schengen Agreement 1985 and the Schengen Implementing
Agreement 1990 were signed, its name has become synonymous with the agreements
which set in motion the mechanisms to abolish border controls on the movement of persons
among five original parties7 (Member States of the European Union) and the establishment
of a system for common conditions of entry and exclusion of third country nationals8 into the
combined territory. The Schengen acquis, which has been incorporated into the treaties by
the so-named protocol to the Amsterdam Treaty, consists of:
1. The Agreement signed in Schengen on 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;
2. The Convention, signed in Schengen on 19 June 1990 between the Kingdom of
Belgium, the Federal Republic of Germany, the French Republic, the Grand Duchy of
Luxembourg and the Kingdom of the Netherlands, implementing the Agreement on
the gradual abolition of checks at their common borders, signed in Schengen on 14
June 1985, with related Final Act and common declarations;
3. The Accession Protocols and Agreements and related Final Acts and declarations;
4. Decisions and declarations adopted by the Executive Committee established by the
1990 Implementation Convention, as well as acts adopted for the implementation of
the Convention by the organs upon which the Executive Committee has conferred
decision making powers.
The initial Schengen Agreement of 14 June 1985 created a framework for the abolition of
border controls on persons and goods between participating states. It was supplemented by
the Schengen Implementing Convention 1990 which set out the detailed provisions on the
abolition of border controls between the participating states, the application of controls at thecommon external border of the participating states, provisions on division of responsibility in
respect of asylum9 and provisions on police co-operation. The creation of the Schengen
system arose from an economic pressure not least from the transport industry to remove
6 This article started life as Article 8A then after the entry into force of the Maastricht Treaty became Article 7A.
With the Amsterdam Treaty it became Article 14.7 Belgium, France, Germany, Luxembourg and the Netherlands. Italy joined almost immediately thereafter.8
Ie persons who are not nationals of any Member State of the European Union.9These provisions were superseded by the Convention determining the state responsible for examining
applications for asylum lodged in one of the Member States of the European Communities (Dublin Convention)
14 June 1990 when it came into force in September 1997 which in turn for the Member States except Denmark
have been replaced by the Dublin II Regulation 343/2003.
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obstacles to cross-border trade within the European Union.10 It was foreshadowed by the
European Commissions White Paper on the Completion of the Single Market.11
The Schengen Convention entered into force in September 1993 but the provisions on
abolition of border controls were not applied in any Schengen state until 26 March 1995.
Even after that date France maintained border checks on persons moving between France
and the other Schengen states on the exceptional basis provided by Article 2(2) SIA.12
Over the next 12 years all other Member States of the European Union acceded to the
Schengen instruments with the exception of the UK and Ireland. While the abolition of intra
Member State border controls, inter alia, on persons was part of the internal market
embodied in Article 14 EC, the priority of Community law was never officially used to impede
the Schengen system. Rather it was given legitimacy through the use of the comparison
with an avant garde or experiment for the Community to adopt later. The argument was
that the Schengen arrangement was legitimate as it would enable the difficulties with the
system to be dealt with in a controlled environment. It could then be used as the blueprint
for the whole of the Community.13 In fact the incorporation into Community law could hardly
be messier or more difficult. The Commission has suggested that in its pinion all the so-
called acquis must be replaced by Community legislation adopted in accordance with the
Treaty rules in Title IV EC.14
The abolition of border controls was achieved with Greece in March 200015 and the Nordic
states in December 2000.16 For the 10 new Member States of 1 May 2004, there is as yet no
date set for the lifting of the intra Member State border controls. It is anticipated that this may
happen in 2007 but it requires a decision by the participating Member States in the Council.
10D. Bigo, Polices en Reseaux, Presses de Sciences-Po, Paris, 1996.
11 D. Papademetriou, Coming Together or Pulling Apart? The European Unions Struggle with Immigration and
Asylum, Carnegie Endowment for Peace, 1996.12
P Keraudren Rticences et obstacles franais face Schengen: la logique de la politique de scurit in A
Pauly, Schengen en panne EIPA, Maastricht, 1994 pp 123-144.13 C. Elsen, Schengen et la cooperation dans les domains de la justice et des affaires interiors. Besoins actuels
et options futures in M. den Boer The Implementation of Schengen: First the Widening , Now the Deepening
(EIPA: Maastricht: 1997).14 European Commission Staff Working Paper: Visa Policy Consequent upon the Treaty of Amsterdam and the
Integration of the Schengen Acquis into the European Union SEC (19999) 1213; Brussels 16.07.99.15 G Nikolopoulos, Security Arrangements at the External Borders of Schengen: A View from Greece in M
den Boer, Schengens Final Days? The Incorporation of Schengen into the New TEU, Extenral Borders andInformation Systems EIPA, Maastricht, 1998, pp 105- 114.16 R Veijalainen, Security Arrangements at the External Borders of Schengen: A View from Finalnd in M den
Boer, Schengens Final Days? The Incorporation of Schengen into the New TEU, Extenral Borders and
Information Systems EIPA, Maastricht, 1998, pp 101-104.
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In the meantime, though, in accordance with the accession treaty the new Member States
are require to apply the EU acquis on the external border.17
The operation of Schengen was the responsibility of the Executive Committee established by
the instruments. The Executive Committee was assisted by a small secretariat based at the
Benelux Secretariat. Like the EUs Third Pillar, the Executive was aided by working groups
on specific areas. Like the Third Pillar, the lack of a strong institutional structure meant there
was only limited coordination on implementation and interpretation of the agreement.
The Amsterdam Treaty which came into force on 1 May 1999 included a Protocol on
Schengen to the EC and EU Treaties which in effect provides for the insertion of the
Schengen Agreement 1985, the Schengen Implementing Convention 1990 and the
decisions of the Executive Committee made under the two agreements in part into the EC
Treaty insofar as they involve borders and third country nationals.18 The same Protocol
provides for moving into the Third Pillar of the Treaty on European Union those provisions on
Schengen relating to policing and criminal judicial co-operation but including the Schengen
Information System. The UK, Ireland and Denmark all negotiated protocols which permit
them to remain outside of the new EU rules on borders and third country nationals. Ireland
and the UK may decide in each instance whether they wishes to participate or not case by
case in the new regime. 19 By decisions in May 1999, the Council allocated a legal base
within the new EC Treaty as amended by the Amsterdam Treaty for the Schengen acquisas
identified in its decision.20 Accordingly, the European Community has inherited the
Schengen acquiswhich has been transferred in a somewhat less than systematic manner
into new Title IV of the EC Treaty: visas, asylum, immigration and other policies related to
free movement of persons. The legal base for most of the Schengen acquiswhich has been
transferred into the EC Treaty is Articles 62(1), (2)(a), (3) and 63(3) while having respect to
Article 64(1) the internal security reserve of the Member States.21
17For a discussion of the issues see E Bort, The Frontiers ofMitteleuropa: Problems and Opportunities at the
Eastern Frontier of the European Union in M den Boer, Schengen Still Going Strong Evaluation and UpdateEIPA, Maastricht, 2000, pp 85-104.18
J de Zwaan, Schengen and its Incorporation into the New Trety: The Negotiating Process in M den Boer,
Schengens Final Days? The Incorporation of Schengen into the New TEU, External Borders and
InformationSystems EIPA, Maastricht, 1998, pp 13 24.19
See also, House of Lords, European Communities - 31st Report, Session 1997-98, Incorporating the Schengenacquis into the European Union, London 1998.See also, House of Lords, European Communities - 31st Report,
Session 1997-98, Incorporating the Schengen acquis into the European Union, London 1998.20C Elsen, Incorporation juridique et institutionnelle de Schengen dans lEU in in M den Boer, Schengen Still
Going Strong Evaluation and Update EIPA, Maastricht, 2000, pp 11-20.21 This Title shall not affect the exercise of the responsibilities incumbent on the Member States with regard to
the maintenance of law and order and the safeguarding of internal security.
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As regards movement of persons, the Schengen system is based on three principles which
are achieved through the deployment, now, of six tools:
The Principles:
1. No third country national should gain access to the territory of the Schengen states
(with or without a short stay visa) if he or she might constitute a security risk for any
one of the states;
2. an assumption that a short stay visa issued by any participating state will be
recognised for entry to the common territory for the purpose of admission (there are
explicit exceptions justifying refusal specifically on security grounds);
3. once within the common territory, the person is entitled (subject again to security
exceptions) to move within the whole of the territory for three months out of every six
without a further control at the internal borders of the participating states.
The Community Border Code is the first EU measure to give effect to principles (1) and (3).
The question of visas is only partially dealt with in the Code.
(a) The Tools
1. The Schengen Information System;
2. A common list of countries whose nationals require visas to come to the common
territory for short stays (visits of up to three months); and a common list of those
excluded from the requirement;
3. A common format, rules on issue and meaning for a short stay visas;
4. The Visa Information System (Decision OJ 2004 L 213/5 and regulation on detailed
functioning of the VIS not yet adopted);
5. The External Borders Agency (Regulation 2007/2004);6. Carrier sanctions and passenger data transmission.
The focus of the system is to ensure that persons who are not wanted by any participating
state are not permitted into the territory. Thus the rules seek to specify who must be
excluded and provide little guidance on who should be admitted. Because the underlying
principle of the system was mutual recognition of national decisions rather than
harmonisation, finding legal mechanisms to achieve this has unexpected implications. The
lifting of border controls between the states means that positive decisions on admission of
persons are likely to be respected by default as the parties have fewer identity checks on the
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crossing of borders.22 The cross recognition of negative decisions requires more specific
measures. When the concept of internal security, the primary reason for refusal of
admission of an individual into the combined territory, was not harmonised any examination
of the grounds for refusal of an individual by another state needs to be avoided. This would
be among the target areas of the European Parliaments amendments to the Community
Border Code.
At the first level of exclusion are those persons on the common list of persons not to be
admitted. The list is maintained electronically in the Schengen Information System and is
made up of all persons signalled for the purpose by any of the participating states according
to their national understanding of the criteria for inclusion and their national interpretation of
public order and security (Article 96 Schengen Implementing Agreement 1990). So far there
has been no major change to the operation of the SIS since May 1999. However, the
development of a SIS II, a new system designed to add both the capacity needed for the
participation of the 10 new Member States and new functionalities, is likely to have
substantial consequences. It is not entirely clear what the new functionalities will be.23
The first step for determining access to the territory is whether a person has achieved
sufficient personal notoriety in any one Member State to be included in the system. Persons
whose behaviour justifies their exclusion from the territory are defined by Article 96
Schengen Implementing Agreement. The criteria enjoy one common characteristic to justify
an Article 96 entry the individual will normally have been within the territory of the Union. 24
The definition of these persons for exclusion is based on what they did or represented while
they were within the territory. It is here that the divergent conceptions of what constitutes a
risk and what is security in the Member States becomes central. What is perceived as a
security risk in one state is not necessarily the same in another. This difference of
perception of risk as it relates to an individuals activities the last time he or she was within
the Union will be the territory where national courts begin to question the legitimacy of thesystem.
The second step relates to persons who have not yet been identified as an individual risk to
any state but who might be one. The intention is to identify groups of persons more likely
than others to include persons who might constitute a risk. This group then is the subject of
an additional level of control over their potential access to the territory of the Union. The tool
22 But see K Groenendijks presentation on the maintenance of internal checks on persons after the entry into
force of the Schengen Implementing Agreement 1990: Article 62 EC and EU Borders: Conference 11/12 May
2001, ILPA/Meijers Committee, London.23
E Brouwer,Data Surveillance and Border Control in the EUhttp://libertysecurity.org/article289.html
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is the visa list which on the basis of nationality categorises persons as more or less likely to
be a risk. For those persons who, on the basis of their nationality are considered a potential
security risk, a special control in the form of a visa requirement is imposed. This has the
effect of moving the effective border for these persons to their own state. The system of
justification reverses the relationship of the individual and the state. It is no longer the
Communitys relationship with the state which determines the treatment of its nationals.
Rather it is the assessment of the individuals which determines the states characterisation.
The states claim to sovereignty as the determiner of order internally within its territory and
thus of its relations with other states is no longer relevant. The enforcement mechanism is
the implication of carriers in the system through sanctions for carrying persons who need
visas but do not have them. The Member States distance themselves from the mechanisms
of control abroad by devolving it to the private sector.
The third step is identifying who, within the prima faciesuspect group, should get visas. A
comparison may be made between the policing technique of profiling: anticipating who is
likely to be a criminal (or become a criminal). The purpose of the mechanisms is to
anticipate through a profile of a risk, who is likely if he or she were given a visa to come to
the EU territory to be a risk (which of course raises the important question of the definition of
a risk and of security). One of the areas of concern in the common system has been the
possibility of visa shopping. As the rules on when visas should be issued have not been
harmonised and the grounds for refusing a visa have remained rather vague (other than a
SIS entry) the Member States have been anxious that an individual refused a short stay visa
at one Member State consulate might well be issued one at another Member States
consulate. Instead of addressing the problem of inadequate clarity of the visa rules, the
Member States chose to set up the Visa Information System which will be a data base
containing information on all persons who apply, anywhere, for a short stay visa. It will
include information on visas issued, and refused. Among the concerns of individuals and
non-governmental organisations is, as in the case of the Schengen Information System, thelegality of collection, retention and use of personal data. The proposal has been criticised as
regards the right of the individual to have inaccurate information rectified.
The fourth step for visa nationals (but the third for nationals of countries on the visa white
list) is the external border. This is patrolled by national officials whose functions include
admitting or refusing individuals admission to the common EU territory. The existence of a
Schengen Border Manual did not fundamentally change the national nature of the control. In
order to achieve further integration of the control of the external border, the EU has
24 It is possible to justify inclusion of someone who has never been in the EU but this is appears to be the
exception to the rule from those cases which have come before the courts.
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established the External Border Agency.25 Based in Warsaw, the Agency became
operational on 1 May 2005. Its purpose is to improve the integrated management of the EUs
external border controls. In article 1 of the regulation it is stated that responsibility for control
and surveillance of the external border remains with the Member States. Nonetheless, the
Agencys job is to facilitate and render more effective the application of existing and future
Community measures relating to the management of the external borders. The focus is on a
coordination role. The Agency has six mains tasks, to: (a) coordinate operational
cooperation between Member States; (b) assist Member States on the training of national
border guards; (c) carry out risk analyses; (d) follow up on the development of research
relevant for the control and surveillance of external borders; (e) assist Member States in
circumstances requiring increased technical and operational assistance at external borders;
(f) provide Member States with the necessary support in organising joint return operations.
Whether this new Agency will gradually assume greater responsibility for the management of
the external border bearing in mind the flexibility of its six main tasks remains to be seen.
Carrier sanctions, now embodied in Directive 2001/51, is a key enforcement mechanism of
the system. They require the transport sector (both public and private) to check all travel
documents of individuals seeking to cross the external border and ensure that they are in
order, including the acquisition of a visa where required, before permitting the individual to
travel. Where a transporter carries an individual without the required documents to a
Member State, the carrier will be fined in accordance with a common level of fines. Thus the
policing of the visa and border system is shifted as well onto the transport industry. This
system, while considered useful, is no longer considered by the Member States to be
adequate for the Member States to know as much about the identity of individuals travelling
to the EU as they find they need. Justified on the basis of the fight against illegal immigration
and terrorism, the Member States have adopted Directive 2004/82 which requires the
Member States to oblige carriers to transmit to external border authorities nine pieces of
information about any passenger they will carry to the EU external border. The informationrequired is (a) the number and type of travel document; (b) nationality; (c) full names; (c) the
date of birth; (e) the border crossing point of entry into the EU; (f) code of transport; (g)
departure and arrival times; (h) total number of passengers carried on that transport; (i) initial
point of embarkation. Failure to comply results in a fine for the transporter. The Member
State authorities are obliged to destroy the data after 24 hours unless data are needed later
for the exercise of statutory responsibilities of the border authorities.
In general, as can be seen from the above summary of the EU border system, since 2001
there has been a hardening of the tools of control. The emphasis has been on obtaining and
25 Regulation 2007/2004 establishing External Borders Agency.
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using data about individuals as a key mechanism for the control of the external border. In
this sense one might suggest that the border has become personalised in a virtual space
only tangentially related to a physical border of some kind. EU border controls seem to take
place increasingly in databases and less in physical places.
Enlargement
Each enlargement of the EU since 1985 has raised questions for the Schengen system.
While the earlier enlargements of the EU coincided with the gradual enlargement of the
Schengen system to include the Member States as at 1985, the Schengen system did not
respect the same borders as those of the EU. Norway and Iceland were admitted in 1996
while Ireland and the UK remained outside. So the system developed in a rather sui generis
way which was not dependent on the contours of the EU.26 The recent referendum in
Switzerland has paved the way for that non-EU country also to join the Schengen system.
The enlargements have not only created logistical headaches but also legal difficulties. 27
When the system was inserted into EU law in 1999, the legal basis changed for most of the
participants but not for all. As Denmark by a separate protocol remained opted out of the EU
common border system it remained bound only to Schengen directly, not Schengen via the
EU treaties. The existence of other non-EU Schengen states also ensured the continuing
survival of Schengen separate from EU law.
The 2004 enlargement has been more dramatic not only as a result of the number of
countries involved but also the changing dynamic of their relations with their neighbours,
notably Russia. In accordance with the accession treaty, all 10 new member States were
required to align their external border law with the Schengen acquis. There was no
possibility for them to opt out as Denmark, Ireland and the UK had done. The first and most
startling effect was that the 10 had to introduce mandatory visa obligations on nationals of
neighbouring countries between which there are large daily movements of persons, such asPoland and Ukraine.28 Also problematic was the requirement to place mandatory short stay
visa obligations on nationals of neighbouring countries which enjoyed close ethnic ties.29
26W van de Rijt Les initiatives bilatral et multilatral entre Schengen et les Etats (non-) membres de lUE in
M den Boer, Schengen Still Going Strong Evaluation and Update EIPA, Maastricht, 2000 pp 43-50.27 One such is the relationship of the European Information System with the Schengen Information System A
Magraner Coexistence dy Systme dInformation de Schengen (SIS) et du Systme dInformation Europen
(SIE) in A Pauly,De Schengen Maastricht: voie royale et course dobstacles EIPA, Maastricht, 1996 pp 81-
96.28 S Boratynski, Looking East - Democracy in the New European Borders Presentation 30 June 2005, CEPS,
Brussels.
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Notwithstanding the obligation to apply the EU external borders acquis from the date of
accession, the 10 new Member States did not enjoy the abolition of border controls at the
intra Member State borders from that date. This is dependent on the adequacy of the
external borders arrangements of the new Member States and their full integration into the
tools of the external border. According to a Commission spokesperson the Council decision
to remove border controls will be based on careful examination, including evaluation visits by
national experts. Each new Member State will be assessed individually.30 The Commission
does not anticipate that the necessary decisions will be taken before 2007.
The Present
When such a complex system as that of Schengen is inserted, in a rather willy-nilly manner
into a highly developed supra national structure designed around integration of trade, such
as the EU, one can well imagine that trouble will ensue. The institutions responsible for EU
legislation are first the European Commission, which in almost all fields except this one has
always had an exclusive right to initiate legislation. It recovered that right of exclusivity at the
end of the first five-year period of Freedom, Security and Justice on 1 May 2004. Secondly,
the Council of the European Union made up of the representatives of the Member States
adopts legislation and thirdly the European Parliament which has been the poor relation
which can neither initiate legislation nor adopt it without the Council but can discuss it and
suggest changes. However, by a Council Decision adopted on 22 December 2004 and with
effect from 1 January 2005, the law making procedure in the whole of the field of borders,
asylum and immigration (with the sole exception of labour migration) were changed to co-
decision making with the European parliament and qualified majority vote.31
The insertion into the First Pillar, by a protocol to the Amsterdam Treaty, of much of the
Schengen borders acquis in a rather undigested manner to define the nature, place and
meaning of the EUs common external borders and how they should be managed, policedand otherwise regulated, was bound to cause trouble and it has. Notwithstanding an early
call by the Commission for the replacement of all the Schengen acquis by proper EU law,
action was rather slow in kicking off. Until the agreement among the Commission, Council
and Parliament on a Common Borders Code on 23 June 2005 to which I will return shortly,
the measures adopted were as follows:
29
J Toth, The Consequences of Accepting EU Identity: The Case of Hungary and Ethnic Minorities in KGroenendijk, E Guild and P Minderhoud,In Search of Europes Borders Kluwer Law International, The Hague,
2003 pp 251-172.30http://www.euractiv.com/Article?tcmuri=tcm:29-117769-16&type=News31
OJ 2004 L 296/45.
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Adopted measures[UK & Ireland have opted out of all measures except UK opt in to 6, 7]32
1. Reg. 539/2001 establishing visa list (OJ 2001 L 81/1)
2. Reg. 789/2001 on procedure for amending Common Consular Instructions (CCI) (OJ
2001 L 116/2)
3. Reg. 790/2001 on procedure for amending borders manual (OJ 2001 L 116/5)
4. Reg. 1091/2001 on freedom to travel for holders of long-term visas (OJ 2001 L 150/4)
5. Reg. 2414/2001 moving Romania to white list not requiring visas (OJ 2001 L 327/1)
6. Reg. 333/2002 on visa stickers for persons coming from unrecognised entities (OJ 2002 L
53/4)
7. Reg. 334/2002 amending Reg. 1683/95 on common visa format (OJ 2002 L 53/7)
8. Reg. 415/2003 on visas at the border and visas for seamen (OJ 2003 L 64/1)
9. Reg. 453/2003 on visa list (OJ 2003 L 69/10)
10. Reg. 693/2003 on FTD and FRTD special arrangement fo Kalinigrad (OJ 2003 L 99/8)
11. Reg. 694/2003 on format for FTD and FRTD special arrangement for Kalinigrad (OJ
2003 L 99/15)
12. Reg 1295/2003 re special rules for Olympic games (OJ 2003 L 183/1)
13. Decision on border crossing points (OJ 2004 L 261/119)
14. Decision establishing Visa Information System (VIS) (OJ 2004 L 213/5)
15. Reg. 2007/2004 establishing Border Control Agency (OJ 2004 L 349/1)
16. Reg. 2133/2004 on biometric features in EU passports (OJ 2004 L 396/5)
17. Reg. 2252/2004 requiring stamping of passports at external borders (OJ 2004 L 385/1)
The heterogeneity of the rules is interesting. If one were planning to create a coherent
border policy would these be the legal acts one would take? Probably not, but if one already
had in a rather grey legal zone (ie a protocol) all the measures one wanted to use for the
construction of a border then perhaps only issues which escape all construction of legality
within that grey zone will have to go via the normal legislative route. In any event, the sourceof great friction would be the second and third acts the procedure for amending the CCI
and the border manual. Both of these texts are part of the EU inheritance from the Schengen
acquis. They set out in great detail how the EU border controls on persons are to take place,
where and on whom. It is in these two manuals that the practices of EU borders are
contained. It is worth noting that when the Schengen acquis was published in the Official
Journal, while the majority of the Consular Instructions were published the Border Manual
was not on the grounds of confidentiality.33
32 Many thanks to Professor Steve Peers, Essex University, for this table.33
OJ 2000 L 9.
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The decision of the Council to retain for itself the power to change these two manuals
constituted, in effect, a statement by the Member States which form the Council, that the
power to construct and deconstruct EU border controls lies exclusively with them. It was by
no means clear that the Commission or the Parliament wanted to construct these borders
differently from the Council but they did clearly want to be in the driving seat themselves. If
the area of freedom, security and justice was indeed an area which belongs to EU law as
regards border controls (as stated in Article 62 EC) then the power to define what that border
is through its practices should also belong to the institutions responsible for delegated
legislation at least that is the argument of some of the actors. While the European
Parliament was clearly constrained by the EC Treaty provisions on the transitional
arrangements in the first five years of the area and had to await the council decision to
extend co decision-making powers to the field, the Commission was not. The transitional
provisions as regards the Commission were more ambiguous permitting the Commission full
participation in the adoption of legislation though permitting the Member States a right to
initiate legislation as well.
Before examining the tensions which arise, what happened? The Council adopted as
delegated legislation under these two measures:
Implementing Measures34
1. Decision 2001/329/EC amending CCI and Common Manual (OJ 2001 L 116/32) re:
Nordic states
2. unpublished Decision amending Annex 10 to CCI, Annex 6 to Common Manual, Annex 8
to technical specifications of Schengen consultation network
3. Decision 2001/420 amending CCI, Parts V and VI and Annex 13, and Common [Border]
Manual, Annex 6a (OJ 2001 L 150/47) [implements Reg. 1091/2001]
4. Decision 2002/44 amending Part VII, Annex 12 CCI and Annex 14a of the Common
Manual (OJ 2002 L 20/5) [allows for charging fees for visa applications]5. Decision deleting provisions of Part I of the Common Manual (OJ 2002 L 123/47)
6. Decision 2002/354 amending Part III CCI & creating new Annex 16 CCI (OJ 2002 L
123/50)
- establishes a standard form for a Schengen visa application
7. Decision amending Parts III and VIII of CCI (OJ 2002 L 187/44) re apps. sent by travel
agents
8. Decision amending Part VI to the CCI (OJ 2002 L 187/48) follows change in visa format
regulation
34Many thanks to Professor Steve Peers, Essex University for this table.
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9. Decision amending Part II Borders Manual (OJ 2002 L 187/50) limited changes to text
10. Decision amending Schengen Consultation Network agreed 19.12.02, not published
11. Decision re fees for visa applications (OJ 2003 L 152/82) - sets standard fee of 35 euro
12. Decision on visa requirements for holders of Pakistani diplomatic passports (OJ 2003 L
198/13)
13. Decision re airport transit visas for Eritreans (OJ 2003 L 198/15)
14. Decision amending CCI to require travel insurance (OJ 2004 L 5/79)
15. Decision amending CCI re: representation by Member States (OJ 2004 L 5/76)
16. Decision amending CCI re: interviews at consulates (OJ 2004 L 5/74)
17. Border manual decision: standard form for refusal (OJ 2004 L 261/36)
18. Border manual decision: standard rules for checks on minors (OJ 2004 L 157/136)
Here one sees that a coherent body of rules is underway. There is the strong impression that
much has already been done and that this list indicates the day-to-day operation of a system
already functioning. But the question remains whose system is it?
On 3 July 2001 the Commission commenced legal proceedings before the European Court
of Justice against the Council seeking annulment of Regulation 789/2001 reserving to the
Council implementing powers regarding certain provisions and practical procedures for
examining visa applications and Regulation 790/2001 reserving to the Council implementingpowers with regard to certain detailed provisions and practical procedures for carrying out
border checks and surveillance.35 It is interesting to note that the first measure to be adopted
and attacked is the visa measure which seems to indicate that once the Member States
started moving the borders of Europe they did not stop at the external frontier but continued
on moving them inside third states to their consulates which control whether an individual
can leave his or her state bound for an EU Member State through the application of
mandatory visa regimes. The Netherlands entered the fray supporting the Commission in its
action. Perhaps that small Member State was not satisfied that its larger neighboursdominate the control of borders through the Council. In any event, it indicates that there was
not unanimous support within the Council for the political control of border construction
remaining largely dominated by the Member States in the Council.
The Court noted that the regulations establish two procedures for the detailed provisions and
practice procedures relating to the examination of visa applications and the carrying out of
border checks and surveillance at the external borders. First, article 1 of each of them
provides that some of the provisions may be amended by the Council acting unanimously
and second, article 2 establishes a procedure by which the Member States are to
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communicate such amendments as they wish to make to certain provisions of or parts of the
annexes to the two manuals to the Secretary General of the Council who then
communicates those amendments to the members of the Council and to the Commission. It
then considered the rationale of the two measures as set out in their recitals. It highlights the
transitional nature of the arrangements, the five-year period and its end in sight as the
rationale to permit flexibility and largely Member State control over the borders during the
period.
The Court set out at great length the list of provisions of the two manuals which the Council
reserves to itself as regards amendment, which was rather wide, to say the least. It also
listed the provisions of the manuals which the Member States were entitled to amend, again
rather surprising in their breadth. The organising principle of the provisions seems to be the
ambition of a number of actors in the field to retain flexibility and control over the
construction of the EU border. The right to change, almost unilaterally the meaning of the
border control is reserved in a wide variety of fields by the Member States. Where among
themselves they cannot agree on unilateral change, then the matter is reserved to the
Council, ie themselves as a group. The Commission relied on Article 67(1) EC which states
During a transitional period of five years following the entry into force of the Treaty of
Amsterdam, 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 to challenge the
arrangement. In its submissions, the Commission divided the issue into two parts. It argued
that the measures were too generic to be lawful and do not fulfil the EU legislative
requirement that implementing powers must be highly specific and that they lack reasons.
The sensitive nature of the policies concerned could not, according to the Commission, of
itself justify the decision to reserve implementing powers. The second argument of the
Commission was that the measure constituted illegal sub-delegation. It argued that the
power of the Council to reserve implementing powers to itself only permits it to do so for
itself, not so that the Member States can exercise those powers independently of the Council(even where changes require factual information from the Member States that does not
permit the Member States to make the changes themselves). The Council maintained, to the
contrary, that the measures were perfectly adequately justified and that it was fully entitled to
take them not least because of the sensitivity of the field. Further, it stated that the Member
States could not in law change the manuals without notifying it. Thus, in principle, changes
could only happen with the knowledge of the Council (though not its control), so there was
no unlawful sub-delegation.
35C-257/01 Commission v Council 18 January 2005.
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The Court found in favour of the Council on both counts. As regards the first argument it held
although the considerations were both general and laconic nonetheless they showed
clearly the grounds justifying the reservation of powers to the Council. On the second
argument it made its most important findings. It noted that the two manuals were adopted at
a time when the area concerned was a matter for intergovernmental cooperation. Thus, In
that quite specific and transitional situation, prior to the evolution of the Schengen acquis
within the legal and institutional framework of the European Union, no objection can be
made to the Council having established a procedure for the transmission by the Member
States of amendments which they are authorised to make, unilaterally or in collaboration
with the other Member States, to certain provisions of the CCI (Common Consular
Instructions) or the CM (Common Border Manual), the contents of which depend exclusively
on information which they alone possess. Such a complaint could succeed only if it were
established that the procedure thereby put into practice was such as to prejudice the
effective or correct implementation of the CCI or the CM. The court did not consider that this
was the case. What is particularly important about this finding of the Court is its clear
temporal limitation. It characterises the period from 1 May 1999 until 30 April 2004 as both
specific and transitional. The latitude which it interpreted as inherent in the EC Treaty
provisions on border management was time limited and the sell by date had passed.
By the time the Court handed down its judgment the critical date of 1 May 2004 had past and
with it the end of the five-year transitional period. Further, the Commission had already
introduced a regulation establishing a Code on border crossing by persons (COM(2004)391)
which, following substantial amendment by the Council and the Parliament, achieved
political agreement by all three institutions with the Parliaments vote on 23 June 2005. This
is the first border measure to be adopted by the Parliament under its new co-decision
powers. It is now time to look at that Common Code and its relationship with the rest of the
Schengen acquis.
The Common Borders Code: the External Border and the Internal Border
In May 2004, the Commission proposed a regulation establishing a Community Code on the
rules governing the movement of persons across borders. This Community Code was
designed to replace the Schengen Common Manual. The adoption of the Community Code
came hard on the heels of the establishment of the External Borders Agency of the EU by
Regulation 2007/2004 which applied from 1 May 2005. The two together are intended form a
new stage in the management of the EUs internal and external border.
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The Commissions proposal for the Community Code states that it goes well beyond a mere
recasting of the Schengen Common Manual, though this is somewhat difficult to determine
as the Manual was not published. However, from the Commissions explanatory
memorandum which accompanied the proposal, almost every provision is prefaced by a
reference to the Common Manual and highlights the similarity or identical nature of the
measure. Like the Common Manual, the Community Code covers both the crossing of the
external and internal borders of the Member States. I will examine them in this order as well.
Just before doing so, it may be noted that regarding the new Member States, the accession
act (article 3(1)) provides that the new Member States are required to apply immediately the
external borders acquis of the EU though they are not entitled to enjoy the abolition of
internal borders until a later date.
The personal scope of the Community Code applies to any person crossing the internal orexternal border of the EU but without prejudice to the rights of persons enjoying Community
free movement rights (including third country national family members) and the rights of
refugees and persons requesting international protection. At the demand of the Parliament,
an article entitled conduct of checks has been introduced which requires border guards fully
to respect human dignity and that any measures taken in the performance of their duties
shall be proportionate to the objectives pursued by such measures. Further it states
that while performing border checks, border guards shall not discriminate against persons
on any of the following grounds: sex, racial or ethnic origin, religion or belief, disability, ageor sexual orientation.
This is a particular important inclusion of statement of duties which must not be forgotten
irrespective of the situation in which public officials may find themselves. I was rather
surprised when a Member State official who had participated in the negotiations in the
Council on the Code stated in public as an example of issues yet to be resolved regarding
joint procedures by EU border guards, protection of guards when they draw their guns. I had
rather thought that border guards draw their stamps at the border. It seems more
appropriately the job of the military to draw their guns at the external borders. It will only be
in the most exceptional circumstances that the drawing of a gun by a border guard will be
consistent with human dignity. Considering that those person most likely to fail to have the
necessary documents to cross the border and thus to excite the interest of border guards are
refugees, the emphasis on guns is somewhat unfortunate. Further, it is worth noting that in
the application of border controls by a non Schengen EU Member State, the UK, the guards
were found to have discriminated illegally on the basis of race in excluding persons seeking
to come to the UK.
36
This case, ultimately decided by the House of Lords, strongly
36R v Immigration Office at Prague Airport and another ex parte European Roma Rights Centre and others
[2004] UKHL 55
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condemned the racial discrimination which was inherent both in the border guards training
and briefing. Notwithstanding the general statements requiring the exercise of powers
consistent with the duty of non-discrimination on the basis of ethnic origin. This recent
example indicates that the inclusion of the non-discrimination duty is important not only as a
statement of principle but must also be applied in practice.
The entry conditions for third country nationals are, for the purposes of this investigation, the
most important part of the Community Code. For the first time, there is expressed clearly in
EU law what a third country national must provide in order to fulfil the conditions of entry into
the EU for a period of three months or less out of every six. These are as follows:
(i) possession of a valid travel document;
(ii) possession of a valid visa (if required under regulation 453/2003);
(iii) justify the purpose and conditions of the intended stay and they have sufficient
means of subsistence, both for the period of the intended stay and for the return
to their country of origin or transit to a third State into which they are certain to be
admitted, or are in a position to acquire such means lawfully;
(iv) they are not persons for whom an alert has been issued for the purposes of
refusing entry in the Schengen Information System;
(v) they are not considered to be a threat to public policy, internal security, public
health or the international relations of any of the Member States, in particular
where no alert is issued in Member States' national data bases for the purposes
of refusing entry on the same grounds.
In the annex to the Code there is a list, albeit non-exhaustive, of supporting documents
which the border guard may request to check the fulfilment of the conditions. The European
parliament was instrumental in insisting on the fullness of the list. These are as follows:
For business trips:
(i) an invitation from a firm or an authority to attend meetings, conferences or events
connected with trade, industry or work;
(ii) other documents which show the existence of trade relations or relations for work
purposes;
(iii) entry tickets for fairs and congresses if attending one.
For journeys undertaken for the purposes of study or other types of training:
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(i) a certificate of enrolment at a teaching institute for the purposes of attending
vocational or theoretical courses in the framework of basic and further training;
(ii) student cards or certificates for the courses attended.
For journeys undertaken for the purposes of tourism or for private reasons, supporting
documents as regards lodging:
(i) an invitation from the host if staying with one ;
(ii) a supporting document from the establishment providing lodging or
(iii) any other appropriate document indicating the accommodation envisaged;
supporting documents as regards the itinerary:
(iv) confirmation of the booking of an organised trip or any other appropriate
document indicating the envisaged travel plans;
supporting documents as regards return:
(v) a return or round-trip ticket.
For journeys undertaken for political, scientific, cultural, sports or religious events or other
reasons: invitations, entry tickets, enrolments or programmes stating wherever possible thename of the host organisation and the length of stay or any other appropriate document
indicating the purpose of the visit.
The Code provides that the means of subsistence shallbe assessed in accordance with the
duration and purpose of the trip not only by means of a check of the cash which the
passenger has but also his or her credit cards. Further, the Code states that declarations of
sponsorships, where such declarations are provided for by national legislation and letters of
guarantee from hosts, as defined by national legislation, in case the third country national is
staying with a host, may also constitute evidence of sufficient means of subsistence.
Three exceptional circumstances are provided for: first where the individual has a residence
or re-entry permit issued by another Member State then he or she shall be authorised to
transit (unless there are serious security reasons to the contrary); secondly where all the
above requirements are fulfilled by the individual does not have the required visa. Here,
under the procedure foreseen by regulation 415/2003 a visa can be issued at the border.
While the directive is entitled visas at the border for seamen, it is not expressly limited to that
group but applies to anyone who is not in a position to apply for a visa in advance but fulfilsthe conditions for issue; is able to submit if requested, supporting documents which
substantiate the unforeseeable and imperative reasons for entry; return to the country of
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origin or a third country is assured. It may take two forms, a transit visa which is valid for 5
days and a travel visa valid for 15 days. The visas can either be territorially limited to one
Member State or apply to all. Thirdly, the Code maintains the possibility for Member States
to admit on humanitarian grounds: Third country nationals who do not fulfil one or more of
the conditions referred to in paragraph 1 may be authorised by a Member State to enter into
its territory on humanitarian grounds, on grounds of national interest or because of
international obligations. Where the third-country national concerned is subject to an alert as
referred to in paragraph 1 point d) [ie the SIS], the Member State authorising his/her entry
into its territory shall inform the other Member States accordingly.
Entry and exit controls are mandatory as are stamps both on entry and exit. As one of the
sources of friction on the external border has been the failure of systematic stamping of
passports to show that a third country national has left during the period of his or herpermitted stay, a new provision has been inserted. This provides that while there is a
presumption that the person has remained beyond their permitted period where there is no
exit stamp, that presumption may be rebutted where the third-country national provides, by
any means, credible evidence such as transport tickets or proof of his or her presence
outside the territory of the Member States, which shows that he or she has respected the
conditions relating to the duration of a short stay.
The refusal of entry is now subject to a number of important conditions which strengthen the
rule of law and the foresee-ability of EU law in this field. The Code provides that [a] third-
country national who does not fulfil all the entry conditions laid down in Article 5(1) and does
not belong to the categories of persons referred to in Article 5(4) shall be refused entry to the
territories of the Member States. This shall be without prejudice to the application of special
provisions concerning the right of asylum and to international protection or the issue of long-
stay visas. The problem is the width of article 5(1)(e): threat to public policy, internal
security, public health or the international relations of any of the Member States, in particular
where no alert is issued in Member States' national data bases for the purposes of refusing
entry on the same grounds. While the term public policy has been interpreted by the
European Court of Justice as regards the right of free movement of persons, and the
concept of public health is clearly specified (for EU citizens free movement rights) in
directive 64/221 as the list of diseases set out there, the term internal security has not been
defined either in the legislation or by the Court. Further, the Code raises the possibility that
Member States could introduce health tests for third country nationals even when coming to
the EU for three-month family visits. Additionally, how is the individual to fulfil the
requirement notto be a threat to the international relations of any Member State where no
alert is issued in a Member States national database for refusing entry? It will be difficult to
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test whether there is any substance to an allegation that the individual is a threat unless a
robust approach is adopted by the national courts and the European Court of Justice.
The decision to refuse entry must be by way of a substantiated decision stating the precise
reasons for the refusal. Additionally, precise reasons for the refusal must be given by meansof a standard form, as set out in an annex to the Code. This must be done by the authority
empowered by national law to refuse entry. For the sake of clarity the Code then specifies
that the filled in standard form shall be handed to the third-country national concerned, who
shall acknowledge receipt of the decision to refuse entry by means of that form. The more
precision there is as regards the documents which must be produced to justify the visit and
the grounds on which the individual can be refused, the more clarity there is as regards
when an individual is entitled to cross a border. If one looks at the standard form for refusal
of entry at the border which is an integral part of the Code, one finds 9 boxes, at least one of
which must be ticked as the ground for refusal. These are (a) has no valid travel document;
(b) has a false/counterfeit/forged travel document (c) has no valid visa or residence permit;
(d) has a false/counterfeit/forged visa or residence permit; (e) has no appropriate
documentation justifying the purpose and conditions of the stay. The following document(s)
could not be provided:; (f) has already stayed three months during a 6-month period on
the territory of the Member States of the European Union; (g) does not have sufficient means
of subsistence in relation to the period and form of stay, or the means to return to the country
of origin or transit; (h) is a person for whom an alert has been issued for the purposes of
refusing entry * in the SIS; * in the national register; (i) is considered to be a threat to public
policy, internal security, public health or the international relations of one or more of the
Member States of the European Union [there must be here a reference to national law].
Through an increase in the specificity of the documents required and the manner in which
entry can be refused, the individual begins to get a better idea of what he or she may and
may not do when in the EU on a short stay. Much of this development is the result of
pressure from the European Parliament.
Having provided for a reasoned decision of refusal, it is not surprising that the Code provides
that persons refused entry shall have the right to appeal, though it is worth noting that this
right of appeal was inserted only at the insistence of the European Parliament. These
appeals are to be carried out in accordance with national legislation. This means that the
appeal right is at risk of being rather different depending on the Member State which refuses
entry. The key elements of any appeal, apart from suspensive effect (which is specifically
excluded by the Code initiating the appeal process shall not suspend the decision to refuse
entry) include: the scope of the appeal, that is to say what is the court or tribunal entitled to
review; time limits for the appeal; the right to representation (and legal aid if needed); and
any further appeal rights. If the court or tribunal is one against whose decisions there is no
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further appeal, then it will be a court which is required to refer any question regarding the
correct interpretation of Community law to the European Court of Justice in accordance with
article 68 EC. Although the ECJ is excluded from jurisdiction to rule of any measure or
decision taken relating to the maintenance of law and order and the safeguarding of internal
security as regards the cross of intra-Member State borders, it is under no such inhibition as
regards the external border in respect of which these provisions apply. However, the rules of
ECJ interpretation of those parts of the Schengen acquis which are within the Third Pillar
(here the Schengen Information System) are governed by the separate rules contained in
the Third Pillar provisions of the EU Treaty. Most notably there is a requirement that the
Member State concerned must make a declaration accepting the jurisdiction of the ECJ and
designate the level of court competent to make references (article 35(2) & (3) TEU).
The Code requires be given to the third country national, as regards the matter of
representation, a written indication on contact points able to provide information on
representatives competent to act on behalf of the third country national in accordance with
national legislation. As the decision is specifically deprived of suspensive effect, the
individual will not be present at his or her case at the appeal. Thus the centrality of
representation is obvious. Whether this list will be sufficient is uncertain, particularly if the
individual is poor. At the insistence, again of the European Parliament, there will finally be
collected statistics on the numbers of persons refused entry, the grounds for refusal, the
nationality of the persons refused and the type of border (land, air, sea) at which they were
refused entry for all the Member States which will be compiled by the Commission and
published every two years.
There are substantial weaknesses in the Code which will undoubtedly prove to be a source
of friction between persons seeking to enter the EU and Member States authorities. The
effectiveness of the remedies will be very important to resolving these problems.
Fudging the Issue of Intra Member State Border Controls
The Community Code also covers movement of persons across the internal borders of the
EU (except those Member States which are opted out). The right of movement across the
inter-Member State borders is one which, in the context of the Schengen acquis was subject
to exception on the basis of article 2(2) Schengen Implementing Agreement which permits
Member States to re-introduce border controls at the internal borders on a fairly loosely
regulated basis. The basis for the reintroduction of border controls at intra Member State
borders in the Code repeats the grounds permitted in article 2(2) Schengen Implementing
Agreement (a serious threat to public policy and public security). The Commission proposed
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the addition of a new ground, public health but this did not find its way into the Code. It is
interesting to note, though, from an analysis of the use of article 2(2) by the Member States
that in fact public health as been used as a ground on more than one occasion. 37 Except in
the case of urgent action, there is a procedure for the reintroduction of intra-Member State
border controls which requires the Member State seeking to reintroduce the controls to notify
both the Council and the Commission of: (a) the reasons for the proposed decision, (b) the
events which constitute a serious threat, (c) the scope of the proposed decision, (d) where
the controls will be introduced, (e) the names of the authorised crossing points, (f) the date
and duration of the decision and (g) where appropriate the measures to be taken by other
Member States. The introduction of border controls must not exceed 30 days unless there is
a need for urgent action.
An issue of intra-Member State border controls which has given rise to a number of
complaints has been the retention by the Member States of controls just inside the border.
Under the Schengen acquis, while Member States were obliged to abandon controls at the
border, they were permitted to retain identity controls within a specific radius inside their
borders. The Commission was particularly concerned about the operation of type of control
which has been criticised on the basis of its application to ethnic minorities.38 Immediately
after the abolition of intra Member State border controls on persons on 26 March 1995, there
was concern about the practice of common controls just inside the border.39 The issue of
identity controls as a disguised form of border controls has haunted the abolition of border
controls among the Member States. On the one hand, the political impetus to abolish border
controls led to the dismantling of many border posts between Member States but the desire
of some Member State institutional actors to remain in control of movement of persons has
led to serious concerns about racial discrimination in identity checks just inside the border.40
This practice was permitted by the wording of Article 2(3) SIA: The abolition of checks on
persons at internal borders shall not affect [...] the exercise of police powers by the
competent authorities under each Contracting Party's legislation throughout its territory, or
the obligations to hold, carry and produce permits and documents provided for in its
legislation.
37 K Groenendijk, New Borders behind Old Ones: Post-Schengen Controls Behind the Internal Border andInside the Netherlands and Germany in K Groenendijk, E Guild and P Minderhoud In Search of Europes
Borders Kluwer Law International, The Hague, 2003 pp 131 - 146.38 K Groenendijk, New Borders behind Old Ones: Post-Schengen Controls Behind the Internal Border and
Inside the Netherlands and Germany in K Groenendijk, E Guild and P Minderhoud In Search of Europes
Borders Kluwer Law International, The Hague, 2003 pp 131 - 146.39 K Groenendijk, New Borders Behind Old Ones: Post-Schengen Controls Behind the Internal Borders and
Inside the Netherlands and Germany in K Groenendijk, E Guild and P Minderhoud, In Search of EuropesBorders Kluwer Law International, The Hague, 2003, pp 131-146.40 K Groenendijk, New Borders Behind Old Ones: Post-Schengen Controls Behind the Internal Borders and
Inside the Netherlands and Germany in K Groenendijk, E Guild and P Minderhoud, In Search of Europes
Borders Kluwer Law International, The Hague, 2003, pp 131-146.
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The Commission expressed concern in its explanatory memorandum that a Member State
cannot [ ] lay down provisions applicable solely in the internal border area, determining for
instance a perimeter zone for identity checks on a random or visual basis not carried out
elsewhere in the country. Even the reduced checks in a border crossing area or nearby
areas are unacceptable. The purpose of the checks is the decisive factor. Thus on the basis
of this rather strong statement regarding the legality of border checks at internal frontiers, the
Commission proposed a new article 19 to replace the old article 2(3) SIA. It reads as follows:
The abolition of border checks at the internal border shall not affect:
(a) the exercise of police powers by the competent authorities under the
legislation of each Member State, if the checks at the internal border, in a
hinterland area adjacent to the border or in defined border areas are carried
out under conditions and for purposes identical to those applying to the
territory as a whole, particularly as regards their frequency and intensity;
The provision then goes on to permit security checks which are also carried out within the
state, identity checks carried out anywhere on the territory and Member States to require
third country nationals to report their presence on the territory. What is important, however,
in the first part of this provision is that the discriminatory application of controls within a
border zone would be excluded.
The final text is quite different in its emphasis and wording. It states the abolition of border
control at the internal borders shall not affect:
(a) the exercise of police powers by the competent authorities of the Member
States under national legislation, insofar as the exercise of these powers
does not have an equivalent effect to border checks; this also applies in
border areas. Within the meaning of the first sentence the exercise of power
powers can, in particular, not be considered equivalent to the exercise of
police border checks when the police measures:
i. do not have border control as an objective;
ii. are based on general police information and experience regarding
possible threats to public security and aim, in particular, to combat
cross-border crime;
iii. are devised and executed in a manner clearly distinct from systematic
checks on persons at the external borders,
iv. are carried out on the basis of spot-checks.
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This final text is more nuanced and includes a series of subjective factors about the intention
of the officials carrying out the checks. The power of Member States competent authorities
to exercise powers with equivalent effect to border checks is excluded though other checks
are not. Police measures are limited to those which do not have border control as an
objective, are based on general police information and in particular the combat of cross
border crime, all of which include a substantial subjective element. Identity checks at ports
and airports for security purposes is still permitted as is legislation requiring the holding of
identity documents. Member States may also require third country nationals to report their
presence on the territory.
In the negotiations, the first document available on the Council register indicates that by 1
March 2005 the provision had been whittled down to the exercise of police powers by
competent authorities under the legislation of each Member State as long as the exercise of
these powers has no equivalent effect to border checks.41 This seems rather more
constraining on the powers of the Member States that the original wording proposed the
Commission. However, in that document it is stated that at least one Member State (though
at this time it is not stated which one) had reservations about the wording and the
Commission reserved a right to make a declaration at the moment of adoption regarding the
interpretation of checks not having equivalent effect. There is no change yet to the wording
on 9 March but the footnotes indicate that one Member State was maintaining a reservation
and queried the added value of the provision at all. It recommended the reinsertion of a
reference to the hinterland area however another Member State was opposed. The
Commission merely repeated its reservation. The first addition is found in the draft of 23
March when including in border areas is inserted.42 The reservations are retained. No
progress is made in the next draft of 14 April 200543 however on 22 April one Member State
lifted its reservation on the reference to police powers stating it would make a declaration
on adoption of the interpretation of the word police powers. Further, another Member State
(Hungary, as we learn from Council Document 9630/05) accepted the inclusion of the
reference to border areas so long as a recital was added stating whereas brief inspections
of vehicles carried out in border areas and with drivers consent in order to combat illegal
immigration, conducted on a non-permanent basis and pursuant to the legislation of the
Member State, cannot be treated as equivalent to border controls.44 On 2 June a new text
appears which becomes that of the final version. It is available on the register only in
German.45 For the first time we have the division of article 19(a) into four subsections and
the rather baroque first part which creates the series of exclusions from what may be
41 Council Document 6798/05.42
Council Document 7614/05.43 Council Document 8020/05.44 Council Document 8274/05.
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considered the equivalent of border checks. This is the text which, translated into English, is
found in the final version.46
It is unclear, with all the exceptions to the abolition of checks at the intra-Member State
borders, whether there is really any progress in this area, as the Commission sought. Whathas happened is that a provision, which in its initial form had some clarity as to the meaning
of checks within border areas, has become very convoluted and difficult to interpret. Indeed,
the way the provision is worded, it specifically seeks to provide an interpretation in the
provision itself of what police powers cannot be when compared with border checks. One
has the impression that the Member States are creating the blue print for a police check list
to be completed when carrying out checks around the internal borders before starting the
operation police are advised to tick the boxes and file the form in case there are questions
later. This is a rather classic case of fudge.
In view of the Commissions robust position on border checks behind the intra Member State
borders and the rather confused wording of article 19, it is not unlikely that this provision will
come back to haunt the Member States. Depending on the complaints which the
Commission receives from individuals about checks around the intra Member State borders
and the willingness or otherwise of national courts to engage with the question of the legality
of the use of police powers in checks near the borders which resemble border checks, this
provision is likely to bring the Member States or at least some of them before the EuropeanCourt of Justice before too long.
Conclusions
The transformations which have taken place over the past 20 years as regards the political
ambitions for EU borders and their insertion into law has brought about a fundamental
change to the nature of sovereignty as expressed in borders. Our traditional concept of the
state as an area around which one can draw a line of sovereignty in red ink no longer
applies to the EU. The pooling of sovereignty which is at the heart of the EU project has
changed the meaning of borders and their application.47 This in turn has led to new tensions
regarding the relationship of law and borders within the new configuration of sovereignty. If
the border is no longer the dividing line between national jurisdiction and national law and
the elsewhere so that what is outside is included only by reason of some other element of
attachment (for instance citizenship) then what is it? How are we to apply the principle of rule
45 Council Document 9630/05.46
Council Document 10588/05.47 In Search of Europes Borders Kees Groenendijk, Elspeth Guild and Paul Minderhoud,Kluwer Law International, The Hague, 2003.
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of law in the new geographical setting where the borders have become fragmented as
regards their legal meaning?
The changing meaning of borders for the movement of persons has become a flash point of
conflict among the EU institutions. The insertion of EU law has led to legal challenges
among the institutions about the nature of the EU border and its relationship with the national
border. Nowhere is this more apparent than in the negotiations on the us