Danger: Borders under Construction: assessing the first five years of border policy in an area of freedom, security and justice

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. There was still a substantial lack of clarity as to what this meant. Now, four years on, we have begun to see a body of 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 is adopted by the institutions in a manner which does not engage the full panoply of constitutional norms which regulate the adoption of other types of measures such as regulations or directives).

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. Then I will focus on the appearance on the scene of another actor in the construction of EU borders, the one designed to provide certainty to law and silence (if gradual) to political discussion - the European Court of Justice. The adoption of laws in political contested areas tends to facilitate the early arrival on the scene of the high priests of law - 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.

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, legal or in practice is excluded. Once a measure is finally adopted through the laborious horse trading of the institutions and Member State ministries, it is likely to stay in place for a while. There are of course some exceptions but they are rare. By and large, 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 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. I shall examine this judgment and what it means in the context of the contested field of control over borders.

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 other Communities which are not of relevance to this discussion) which lost its ‘Economic tag’ by virtue of the same treaty. [1] 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.» [2] 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 state’s appreciation of the needs of public policy, security and health. [3] 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. [4]

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 14 [5] 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 deadline for implementation was set for 31.12.92. Border controls on the movement of persons among the Member States was not achieved within EC law. Instead it was hived off into an intergovernmental agreement among a minority of Member States to start with. 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

A small town in Luxembourg, Schengen, has been immortalised by the EU border debate. As the pale where the agreement was signed, its name has become synonymous with that agreement by which among other things set in process the mechanisms to abolish border controls on the movement of persons among five original parties [6] (Member States of the European Union) and establish a system for common conditions of entry and exclusion of third country nationals [7] into the combined territory. The Schengen acquis, which has been incorporated into the EC Treaty by the so-named protocol to the Amsterdam Treaty published in the Official Journal consists of:

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;

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;

The Accession Protocols and Agreements to the 1985 Agreement and the 1990 Implementation Convention with Italy (signed in Paris on 27 November 1990), Spain and Portugal (signed in Bonn on 25 June 1991) and Denmark, Finland and Sweden (signed in Luxembourg on 19 December 1996), with related Final Acts and declarations;

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 the common external border of the participating states, provisions on division of responsibility in respect of asylum [8] 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 obstacles to cross-border trade within the European Union. [9] It was foreshadowed by the European Commission’s White Paper on the Completion of the Single Market. [10]

The Schengen Convention entered into force in September 1993 but was 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. The abolition of border controls was achieved with Greece in March 2000 and the Nordic states in December 2000.

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. [11] 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. [12]

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 EU’s 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 attaches 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 into the EC Treaty [13] insofar as they involve borders and third country nationals. 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. The UK, Ireland and Denmark all negotiated protocols which permit them to remain outside of the new European Community 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. [14]

By decisions of the Council of 12 May 1999, the Council allocated a legal base within the new EC Treaty as amended by the Amsterdam Treaty for the Schengen acquis as identified in its decision. [15] Accordingly, the European Community has inherited the Schengen acquis which 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 acquis which has been transferred into the EC Treaty is Articles 62(1) [16] Article 62(2)(a) and (b), [17] Article 62(3) [18] Article 63(3) [19] while having respect to Article 64(1) the internal security reserve of the Member States. [20]

As regards movement of persons, the Schengen system is based on three principles which are achieved through the deployment of four tools:

The Principles:

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;

an assumption (not as high as a presumption in law) 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);

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 Tools

The Schengen Information System;

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. The definitive black and white lists were achieved in December 1998.

a common format, rules on issue and meaning for a short stay visas;

carrier sanctions.

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 focus on who must be excluded and provide little guidance on who should be admitted. Because the underlying principle of the system is cross 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 - then parties have fewer identity checks on the crossing of borders. [21] 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, is not harmonised any examination of the grounds for refusal of an individual by another state needs to be avoided. In the Netherlands the legal mechanism to achieve this is Article 109(4) and (5) Aliens Act 1999 which places the Dutch border for the movement of persons at the extremities of the frontiers of all the Member States and incorporates the internal security of all Member States into Dutch internal security.

At the first level of exclusion are those persons on the common list of persons not to be admitted. The grounds for inclusion on the excludables list will be considered below. 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).

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. The rules surrounding entry on the SIS will be considered in the next section. In any event, persons whose behaviour justifies their exclusion from the territory are defined by Article 96 Schengen Implementing Agreement. The criteria enjoy one common characteristics to justify an Article 96 entry - the individual will normally have been within the territory of the Union. [22] 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 individual’s activities the last time he or she was within the Union will be the territory where national courts begin to question the legitimacy of the system. This will be considered in the next section.

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 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. In section 5 I will consider in some depth the rules on the basis of which the Community defines which countries nationals are a sufficiently likely security risk to be on the list. The system of justification reverses the relationship of the individual and the state. It is no longer the Community’s relationship with the state which determines the treatment of its nationals. Rather it is the assessment of the individuals which determines the state’s characterisation. The state’s 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 facie suspect 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).

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 ensure. The institutions responsible for EU legislation are primarily 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. The Council of the European Union which adopts legislation is made up of the representatives of the Member States. The European Parliament is the poor relation which cannot either initiate legislation nor adopt it without the Council but can discuss it and suggest changes. A rather technical system has been established between these actors regarding the definition of and responsibility for adopting delegated legislation, ie all the stuff to make the directives and regulations work. The global term given to this field is comitology, which has resulted in more than a couple of references to the European Court of Justice when these actors begin to quarrel about which one of them has the power to do what.

The insertion, by a protocol to the Amsterdam Treaty, of the Schengen acquis as a huge undigested blob which defines the nature, place and meaning of the EU’s common external borders and how they should be managed, policed and 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 and there has been a great reluctance on the part of the Council to replace the framework of Schengen with an EU law framework. So far the measures adopted are as follows:

Adopted measures [UK & Ireland have opted out of all measures except UK opt in to 6, 7] [23]

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 source of great friction would be the second and third acts - the procedure for amending the CCI and the border manual. Both of these texts are EU inheritances 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. Thus 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 borders and their controls lies exclusively with them. But it is here that the comitology rules. It is by no means clear that the Commission or the Parliament want to construct these borders differently from the Council but they do clearly want to be in the driving seat themselves. If the area of freedom, security and justice is 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.

So, the next question is, what has the Council adopted as delegated legislation under these two measures:

Implementing Measures [24]

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. Decision2002/354 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 reg

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 operating. But the question is whose system?

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 implementing powers with regard to certain detailed provisions and practical procedures for carrying out border checks and surveillance. [25] 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 the control 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 neighbours dominate 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.

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.» The Court notes 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 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 them 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.

However, the Court goes on to set out the list of provisions of the two manuals which the Council reserves to itself as regards amendment:

22. The provisions of the CCI which the Council may amend pursuant to Article 1 of Regulation No 789/2001 concern the following matters:

 the diplomatic mission or consular post responsible for visa applications for a visit not exceeding three months (Part II of the CCI);

 initiation of the application procedure for a visit not exceeding three months (Part III of the CCI);

 examination of the application and the decision relating thereto (Part V of the CCI);

 how to fill in visa-stickers (Part VI of the CCI);

 administrative management and organisation of the visa sections (Part VII of the CCI);

 consular cooperation at local level (Part VIII of the CCI);

 regulations governing the movement of holders of diplomatic, official duty and service passports, and holders of laissez-passers which certain international intergovernmental organisations issue to their officials (Annex 2 to the CCI other than Schedule B and visa requirements relating to the countries referred to in Schedule A for which prior consultation is not necessary);

 the joint list of third countries whose nationals are subject to airport visa requirements by all Member States which are Contracting Parties to the Schengen Agreement (‘the Schengen States’), holders of travel documents issued by these third countries also being subject to this requirement (Annex 3, Part I, to the CCI);

 the list of residence permits of the States of the European Economic Area for which the holders are exempt from the airport transit visa requirement (Annex 3, Part III, to the CCI);

 the list of honorary consuls authorised, in exceptional cases and on a temporary basis, to issue uniform visas (Annex 6 to the CCI);

 the instructions concerning entries in the electronically scanned section (Annex 10 to the CCI);

 criteria for determining whether a travel document may bear a visa (Annex 11 to the CCI);

 the fees to be charged, in euro, corresponding to the administrative costs of processing the visa application (Annex 12 to the CCI);

 details of how to complete the visa-stickers (Annex 13 to the CCI);

 rules and procedures governing information to be sent by Contracting Parties when issuing visas with limited territorial validity, when cancelling, revoking and reducing the duration of validity of uniform visas and when issuing national residence permits (Annex 14 to the CCI);

 model harmonised forms providing proof of invitation, sponsorship and accommodation drafted by the Contracting Parties (Annex 15 to the CCI).

Para 28: The provisions of the CM which the Council may amend pursuant to Article 1 of Regulation No 790/2001 deal with the following matters:

 crossing the border at authorised border crossing points (Part I, point 1.2, of the CM);

 crossing the border at places other than authorised border crossing points (Part I, points 1.3, 1.3.1 and 1.3.3, of the CM);

 the list, for each country, of documents recognised as valid for the crossing of external borders and of those which may bear a visa (Part I, point 2.1, of the CM);

 the technical description of the stick-in visa given in Annex 6 to the CM (Part I, point 3.1.2, of the CM);

 the specimen stick-in visas with examples of possible endorsements provided for in Annex 7 to the CM (Part I, point 3.1.3, of the CM);

 the rule that ‘[t]he endorsements printed on the stick-in visa are to be in English, French and the respective national languages’ (Part I, point 3.1.4, of the CM);

 the rule that ‘[t]he rules and procedures governing information to be sent by Contracting Parties when issuing visas with limited territorial validity, when cancelling, revoking and reducing the duration of uniform visas and when issuing national residence permits are described in Annex 8a’ (Part I, point 3.2.4, of the CM);

 the documentary evidence or information establishing the likelihood of the reasons given for entry which may be provided (Part I, points 4.1, 4.1.1 and 4.1.2, of the CM);

 the officers authorised to carry out checks and surveillance (Part II, point 1.1, of the CM);

 the procedures for checks (Part II, point 1.3, of the CM);

 certain detailed provisions concerning the procedures for refusing entry (Part II, points 1.4.1, 1.4.1a and 1.4.4 to 1.4.8, of the CM);

 the detailed provisions concerning the affixing of stamps (Part II, point 2.1, of the CM);

 certain detailed provisions concerning the surveillance of external borders at places other than crossing points and outside office opening hours (Part II, points 2.2.2, 2.2.3 and 2.2.4, of the CM);

 the information which must be entered in a register (Part II, point 2.3, of the CM);

 checks on road traffic (Part II, point 3.1, of the CM);

 checks on rail traffic (Part II, point 3.2, of the CM);

 the procedure determining the place where persons and hand baggage are checked with regard to international civil air traffic (Part II, point 3.3.1, of the CM);

 additional procedures for checking persons in relation to international civil air traffic (Part II, points 3.3.2, 3.3.3, 3.3.4 and 3.3.5, of the CM);

 the procedure for checks in aerodromes (Part II, point 3.3.6, of the CM);

 the rule that ‘[i]n order to prevent dangers, checks must be carried out, in airports and aerodromes, on passengers on internal flights, where uncertainty exists whether such passengers are exclusively coming from, or solely bound for, the territories of the Contracting Parties without landing on the territory of a third State’ (Part II, point 3.3.7, of the CM);

 checks on maritime traffic, with the exclusion of regular ferry services, pleasure boating, coastal fisheries and inland waterway transport (Part II, point 3.4, of the CM);

 checks on inland waterway shipping (Part II, point 3.5, of the CM);

 exchange of information (Part II, point 4.1, of the CM);

 secondment of liaison officers (Part II, point 4.2, of the CM);

 the issue of visas at the border (Part II, points 5.2 to 5.6, of the CM);

 special rules on the checking of the pilots of aircraft and other crew members (Part II, point 6.4, of the CM);

 special rules on the checking of seamen (Part II, point 6.5, of the CM);

 special rules on the checking of holders of diplomatic, official or service passports (Part II, point 6.6, of the CM);

 special rules on the checking of cross-border workers (Part II, point 6.7, of the CM);

 special rules on the checking of minors (Part II, point 6.8, of the CM);

 special rules on the checking of group trips (Part II, point 6.9, of the CM);

 special rules on the checking of aliens who submit an application for asylum at the border (Part II, point 6.10, of the CM);

 special rules on the checking of members of international organisations (Part II, point 6.11, of the CM);

 the specimen long-stay visa (Annex 9 to the CM).

It also notes the provisions of the manuals which the Member States are entitled to amend under the two measures:

Para 25: The provisions of the CCI which, in accordance with Article 2 of Regulation No 789/2001, may be amended by the Member States concern the following matters:

 the list of countries whose nationals are not subject to a visa requirement in one or more Schengen States when they are holders of diplomatic, official or service passports, but who are subject to this requirement when they are holders of ordinary passports (Annex 2, Schedule A, to the CCI, with the exception of the visa requirements relating to the countries mentioned in that schedule which must be the subject of prior consultation);

 the list of countries whose nationals are subject to visas in one or more Schengen States, when they are holders of diplomatic, official or service passports, but who are not subject to this requirement when they are holders of ordinary passports (Annex 2, Schedule B, to the CCI);

 the joint list of third countries whose nationals are subject to an airport visa requirement by some Schengen States only, with holders of travel documents issued by these third countries also being subject to this requirement (Annex 3, Part II, to the CCI);

 the list of documents entitling holders to entry without a visa (Annex 4 to the CCI);

 the list of visa applications which must be the subject of prior consultation with the central authorities of the Member State with which the application is lodged in accordance with Article 17(2) of the CISA (Annex 5A to the CCI);

 the list of visa applications which must be the subject of prior consultation with the central authorities of other Contracting Parties, in accordance with Article 17(2) of the CISA (Annexes 5B and 5C to the CCI);

 the reference amounts (that is to say, adequate means of subsistence) required for crossing borders fixed annually by the national authorities (Annex 7 to the CCI);

 information which, in certain cases, must be given by the authorities in the ‘Remarks’ section of the visa-sticker (Annex 9 to the CCI);

 certain aspects of the computerised procedure for consultation for the purposes of issuing visas (Annexes 6 and 9 to the ‘Schengen Consultation Network (Technical Specifications’)).

Para 31: The provisions of the CM which, in accordance with Article 2 of Regulation No 790/2001, may be amended by the Member States concern the following matters:

 the rule that ‘[n]ationals of the Kingdom of Belgium, the Kingdom of Denmark, the French Republic, the Grand Duchy of Luxembourg and the Kingdom of the Netherlands shall be authorised to cross, at any point, the borders of the State whose nationality they hold’ (Part I, point 1.3.2, of the CM);

 authorised border crossing points for the purposes of Part I, point 1.2, of the CM (Annex 1 to the CM);

 specimen stick-in visas for the purposes of Part I, point 3.1.3, of the CM (Annex 7 to the CM);

 specimen separate sheets (that is to say, authorisations replacing visas) (Annex 12 to the CM);

 specimen cards issued by the Ministry of Foreign Affairs (Annex 13 to the CM).

At work here one can see 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. In its submissions the Commission made a first please in two parts. It argued that the measures are too generic to be lawful and do not fulful the EU legislative requirement that implementing powers must be highly specific and that they lack reasons. The sensitive nature of the policies concerned cannot, according to the Commission, of itself justify the decision to reserve implementing powers. The second argument of the Commission was 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 argued, 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 and in principle the knowledge or the Council so there was no unlawful sub-delegation.

The Court found in favour of the Council on both counts. As regards the first argument it held [insert para 52 - 55 & 60].

In this instance, the Council specifically referred, in recital 8 in Regulation No 789/2001 and in recital 5 in Regulation No 790/2001, to the enhanced role of the Member States in respect of visas and border surveillance and to the sensitivity of those areas, in particular as regards political relations with non-member States.

53

It cannot be denied that such considerations are both general and laconic. However, assessed in their proper context, they are such as to show clearly the grounds justifying the reservation of powers to the Council and to allow the Court to exercise its power of review.

54

It is clear, in the first place, that prior to the entry into force of the Treaty of Amsterdam, which occurred two years before the contested regulations were adopted, visa policy - with the exception of the determination of the third countries whose nationals must be in possession of a visa when crossing the external borders of the Member States, as provided for in Article 100c(1) of the EC Treaty (repealed by the Treaty of Amsterdam) - and external border policy were excluded in their entirety from the European Community’s competence and were among the procedures established under Title VI of the Treaty on European Union.

55

In the second place, Title IV of the EC Treaty includes, in Articles 67 EC and 68 EC, progressive special and derogating provisions concerning the procedure for adopting subordinate legislation and the preliminary ruling procedure. Thus, Article 67(1) and (2) EC provides for a transitional period of five years following the entry into force of the Treaty of Amsterdam, during which, as a general rule, the Council acts unanimously on a proposal from the Commission or on the initiative of a Member State and after consulting the European Parliament. After that period, the Council legislates solely on a proposal from the Commission and may, acting unanimously, provide for all or parts of the areas covered by Title IV to be governed by the procedure referred to in Article 251 EC and adapt the provisions relating to the powers of the Court of Justice.

....

60 The fact that recital 8 in Regulation No 789/2001 and recital 5 in Regulation No 790/2001 are worded almost identically is not, on its own, such as to call that finding into question, particularly given the close links which undoubtedly exist between the area of visas and that of border control.

On the second argument it held:

It is appropriate to bear in mind in that respect that the CCI and the CM were adopted by the Executive Committee at a time when the area concerned was a matter for intergovernmental cooperation. Their integration into the framework of the European Union with effect from the entry into force of the Treaty of Amsterdam did not, of itself, result in the Member States being immediately stripped of the powers which they were entitled to exercise under those instruments in order to ensure their proper implementation.

70

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 or the CM, 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.

.....

79

The Commission has not succeeded in showing why the use of a uniform procedure for the updating of Annex 5A to the CCI was necessary for the proper implementation of point 2.1 of Part II of the CCI, account being taken of the reference in that provision to national law and practice.

80

In the second place, point 2.2 of Part II of the CCI concerns cases in which the diplomatic mission or consular post with whom a visa application is lodged must seek authorisation from its central authority, which must first consult the competent central authorities of one or more of the other Contracting Parties. Point 2.2 provides that ‘until the final list of cases of mutual consultation has been approved by the Executive Committee [for which the Council has substituted itself], the list annexed to these Common Consular Instructions shall apply’. That list is in fact in Annex 5B.

....

84

As a consequence, the second plea put forward by the Commission in support of its application must be rejected.

Conclusions

The transformations which have taken place over the past 20 years as regards the political ambitions regarding 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. [26] 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 of law in the new geographical setting where the borders have become fragmented as regards their legal meaning?

The political choice of inserting the new border regime of the EU into EC law by virtue of a protocol attaching two conventions and a rather large amount of subsidiary decision making as evidence in various forms, by this I mean the Schengen acquis as inserted into the EC Treaty, has brought a new urgency to many of these questions. The individual who becomes trapped in between the new non-borders and their remedies or non remedies deserves our attention. We owe him or her a duty to provide clear answers and legal remedies. Our uncertainty about the borders of sovereignty should not become a mechanism to push the rule of law away from the border through its redefinition. Further, it must not become an impossible obstacle for the individual who seeks to cross the border, however defined.