Elspeth Paper

7/31/2019 Elspeth Paper

1/29

ElspethPAPER.doc

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.


2/29

- 2 - ElspethPAPER.doc

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


3/29


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.


4/29


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.


5/29


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.


6/29


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.


7/29


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.


8/29


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


9/29


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


10/29


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.


11/29


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.


12/29


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.


13/29


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.


14/29


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.


15/29


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.


16/29


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


17/29


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.


18/29


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.


19/29


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


20/29


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:


21/29


(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


22/29


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


23/29


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


24/29


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


25/29


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.


26/29


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.


27/29


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.


28/29


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.


29/29

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

Documents

Elspeth Paper