What is a Neighbour? Examining the EU Neighbourhood Policy from the Perspective of Movement of Persons

Introduction

What happened to the size and shape of the EU after 1 May 2004? The enlargement of the EU to include the ten new Member States in Central and Eastern Europe and the two Mediterranean islands on that date was the result of a tremendous effort in reconfiguring not only the frontiers of Europe but also the imagination of what is Europe. However, enlargement in 2004 did not end the debate about where Europe begins and ends. Rather it fuelled the discussion as neighbouring countries continue to express interest in participating in the EU. At the moment it seems that enlargement will continue in the short term to include the remaining Balkan states and Turkey. This process is anticipated to continue well into the second decade of this millennium. But what then? The borders of the EU have been highly unstable since its inception. The possibility, desirability or inevitability of enlargement has become part of the discourse of the EU. Certain practical and institutional problems, however, are increasingly apparent. Physically can the EU institutions cope with endless enlargement? Psychologically can we cope with a «Europe» which is not constrained by any physically finite framework? Theoretically is it possible to incorporate the inherently unstable into a constitutional framework?

The pressure towards enlargement of the EU is not overtly driven by territorial claims of the existing Member States. Nor is it informed by a geopolitical perspective which seeks to consolidate power within a territory. For instance, the EU seems content with the existence of rich and fairly powerful countries outside the EU but within its geographical domain such as Switzerland which is surrounded by Member States or Norway and Iceland which are on the edges but border none but EU Member States (or almost so in respect of Norway). If territorial coherence is not the driving force of EU enlargement what is? According to the European Commission it is the search for peace, stability and prosperity which explains the process. Successful relations with the neighbours is seen as the way towards this objective and in the EU’s experience it is most successfully achieved when the ‘carrot’ of accession is offered. The EU’s ability to promote democracy, human rights and rule of law has been dependent on its willingness to accept those embracing these concepts into the Union. These three concepts are, from the EU’s perspective, the ingredients of peace, stability and economic prosperity. However, when the logic of stability begins to confound the imaginational and institutional capacities of the EU a new direction is required. It is at this junction that the neighbourhood policy was developed. The European Union launched its new vision for the future relations with the countries around it (post the May 2004 enlargement) in March 2003. The proposal was to create «a ring of friends» comprised of the countries to the East and South of the EU. To transform these countries into friends, a range of policies are being designed to tie these countries to the EU but which stop short of full membership. The mechanism is to embrace the neighbours in the Internal Market, an area without internal borders regarding the free movement of goods, persons, services and capital but to exclude them from participation in the institutions of the EU. This policy means that enlargement is no longer the EU’s main policy tool for expanding peace, stability and prosperity around itself. There is another option which is not subject to the intellectual and institutional constraints of the definition of Europe: the neighbourhood.

The completion of EU enlargement is seen by the Commission as providing impetus to draw closer to «the 385 million inhabitants of the countries who will find themselves on the external land and sea border, namely Russia, the Western NIS [Ukraine, Moldova and Belarus] and the Southern Mediterranean [Algeria, Egypt, Israel, Jordan, Libya, Morocco, Palestinian Authority, Syria and Tunisia]...Over the coming decade the Union’s capacity to provide security, stability and sustainable development to its citizens will no longer be distinguishable from its interest in closer cooperation with the neighbours.» [1] A vision of the relationship between the EU and the neighbours is one which engages the individuals resident in the region around the Union and not just the governments of the countries on the EU’s borders. The mechanism is European Neighbourhood Plans (ENPs). It is also based on an unclear delimitation between EU citizens and nationals of the neighbours. All these persons participate in the project and their interests in it are intended to coincide. I will examine below to what extent this coincidence of interests has been realised in the field of movement of persons. It is here that the objective of firm external border controls expressed by the Member States interior ministries will enter into conflict with the softening of the border for the neighbours. If the authorities of the neighbourhood are persuaded to take repressive action against their own nationals who seek to travel to the EU on the basis of a common fight against irregular migration as part of the ENPs then the interests of the citizens of the neighbours may not only diverge from those of the EU citizen but also from the action of their own authorities. In states where the authorities are already in difficulties as regards their popular legitimacy, all too common in some of the neighbours (not to mention Member States) this kind of pressure which may increase popular resentment may not be conducive to stability. Thus an examination of the ENPs from the perspective of movement of persons is not only important from a legal perspective but may be vital to the adoption of coherent EU policy.

The Commission’s Stated Objectives

The Commission stated that «the aim of the new Neighbourhood Policy is [ ] to provide a framework for the development of a new relationship which would not, in the medium term, include a perspective of membership or a role in the Union’s institutions.» [2] The new vision is for an open and integrated market functioning on the basis of compatible or harmonised rules and further liberalisation. The Commission considered that it would bring significant economic and other benefits to both the EU and the neighbourhood. In terms of specific actions the Commission proposes that «all neighbouring countries should be offered the prospect of a stake in the EU’s Internal Market and further integration and liberalisation to promote the free movement of - persons, goods, services and capital (four freedoms).»

The positive tone of the Communication towards the inclusion of free movement of persons as part of the policy towards the neighbourhood becomes somewhat less warm when the specifics are developed. In the section: Perspectives for Lawful Migration and Movement of Persons there is still the recognition that all parties have a stake in ensuring that the new external borders are not a barrier to trade, social and cultural interchange or regional cooperation. Taking into account some of the most pressing concerns in the social sphere in the Union, the ageing of the EU population, the demographic decline and the need for skills exchange the Commission states that «free movement of people and labour remains the long-term objective». [3] The establishment of free movement of persons in the region as an objective, albeit a long term one, is of considerable importance. The vision of what the EU will become and the role of movement of persons as a key feature towards stability and security in the region (and world) is vital. The Communication does not, at least in its objective, equate the exclusion of movement of persons with increased security but rather the reverse - inclusion is the way forward. The Communication proceeds to set out 8 measures towards the new regime:

A long stay visa policy to facilitate cultural and technical interchange;

An efficient and user friendly system for small border traffic;

Facilitating movement of citizens of neighbouring countries to participate in EU programmes and activities;

Visa free access to holders of diplomatic and service passports;

A wider application of visa-free regimes;

A common approach to integration of third country nationals with special emphasis on nationals of neighbouring countries;

Assisting neighbouring countries efforts to combat illegal migration and returns policies;

Concluding readmission agreements with all the neighbours as an essential element in joint efforts to curb illegal migration.

There is an incoherence at the centre of the list. The first five elements are designed to improve access for individuals to move between the neighbours and the EU. Item two deserves attention as it is based on article 3(1) Schengen Implementing Agreement which envisages the adoption of exceptions and arrangements on local border traffic. The mechanism of facilitated border traffic is being explored in order to avoid some of the more problematic issues of the EU’s visa policy (see below). The Commission proposed two measures in 2003 which failed to gain support in the Council [4] They have now been replaced by another less ambitious proposal. [5]

Item 6 is somewhat ambiguous, is this economic integration only or does it include some idea of cultural integration is intended. The 7th and 8th elements are more contradictory as regards the objective. If providing a stake in the internal market including the free movement of persons is central to building stability and security in the region, then surely it is also a key for the neighbouring states in their policies towards their non-EU neighbours as well. The final point is readmission agreements. [6] These are agreements where by the parties undertake to accept back onto their territory without strict formalities their own nationals found irregularly on the territory of the Member States but also frequent nationals of third countries who are found irregularly in the Member States and who have arrived there via the other party to the agreement. With the entry into force of the Amsterdam Treaty on 1 May 1999, the EC gained competence to negotiate these agreements but so far have only managed to convince a small number of states to enter into them. [7]

The Political Importance of the Neighbourhood Policy

The neighbourhood policy has been a high priority of the European Commission. The need to develop a coherent external relations policy has fuelled this mechanism of differentiation between some states and others. In elaborating the Policy, the European Commission first identified which countries merit inclusion in the policy. In May 2004, and in light of the enlargement which took place that month, the Commission issued a further Communication on the policy. [8] It stated that the policy «is designed to prevent the emergence of new dividing lines between the enlarged EU and its neighbours and to offer them the chance to participate in various EU activities, through greater political, security, economic and cultural co-operation.» While the Communication insists that the Plans are based on a common set of principles which apply to all of them, it nonetheless states that each Plan will be differentiated depending on the state of relations with each country, its needs and capacities and common interests. The degree to which convergence and divergence exist among the ENPs depending on the state involved will be examined below.

With some fanfare, on 9 December 2004 it issued Country reports (in the curious form of Staff Working Documents) on the first group of states to be the subject of further neighbourhood action. The next step was to develop ENPs with these countries which are negotiated with them. These ENPs do not take the form of international agreements as such. Instead they looks rather like a ‘heads of agreement’ statement which set out the parameters of a policy. The main characteristic of the Plans is heterogeneity. This neighbourhood is highly unequal. Its coherence comes only from its geography - contiguity with the EU rather than any other apparent quality. Taking as the yardstick the Commission’s approach to the neighbours, it would appear that they have nothing else in common at all.

Among the issues which make Neighbourhood Policy both ambiguous and complex is that the EU has existing partnership and cooperation agreements with all the countries in the neighbourhood which cover many of the issues to hand. For instance, the agreements with the Maghreb countries include provisions on workers, albeit in the form of equal treatment protection for lawful workers and equal treatment regarding social security. The relationship between the Plans and the Agreements is not entirely clear.

Further some countries also have action plans in certain areas, such as the Ukraine EU Action Plan on Justice and Home Affairs. Thus in the Ukraine Neighbourhood Action Plan there is reference to the other, pre-existing documents: «A specific EU Action Plan on Justice and Home Affairs with Ukraine of 10 December 2001 defines the areas for co-operation in this field.»

The Commission deals with these issues in a rather lapidary fashion stating «Progress in meeting the agreed priorities will be monitored in the bodies established by the Partnership and Cooperation Agreements or Association Agreements. The Commission will report periodically on progress accomplished. On the basis of this evaluation, the EU, together with partner countries, will review the content of the Action Plans and decide on their adaptation and renewal. Decisions may also be taken, on this basis, on the next step in the development of bilateral relations, including the possibility of new contractual links. These could take the form of European Neighbourhood Agreements whose scope would be defined in the light of progress in meeting the priorities set out in the Action Plans.» [9] Thus the ENPs are framed as a part of the existing structure of relations with the neighbours but with added value. Unlike the agreements, they are not legally binding in international law and it is unlikely that either party could rely on them as regards the creation of legal effects. Yet, they are tied to agreements which are international law instruments and which are capable of having direct effect within EU law. Their implementation is intended to be overseen by and fostered by the bodies set up under those agreements. The extent to which this may be compatible with the powers given to those bodies under the agreements remains to be seen. As the ENPs are not protocols nor do they have any formal legal standing vis-à-vis the agreement it seems unlikely that they can amend the terms of the agreements in particular by changing the duties of the implementing bodies.

The Plans

In the neighbourhood process, the first step is the designation of the neighours. This step is taken by the Council. The second step is the preparation of a Country Report by the Commission to determine the countries’ suitability for an ENP. The next step is taken by the Council - the opening of negotiations. So far, ENPs have been negotiated with:

Israel;

Jordan;

Moldova;

Morocco;

the Palestinian Authority;

Tunisia;

Ukraine.

The process is not seen as one which is fixed. A widening of the neighbourhood is consistent with the objectives. Thus, following the Council’s designation, on 5 March 2005 the Commission adopted Country Reports on five more ENP countries (which were added to the ENP in mid-2004), following developments in each case:

Egypt;

Lebanon;

Armenia,

Azerbaijan and

Georgia.

With Egypt and Lebanon the Council decision to pursue ENPs has already been taken. However, the events of Spring 2005 in Lebanon and the instability which has ensued has meant the process has been delayed if not put on hold. As regards Armenia, Azerbaijan and Georgia, the Commission recommended negotiating plans based on its Country Reports assessing the developments in each country. According to the Commission the purpose of these Southern Caucasus Action Plans will be to define «a joint agenda for relations with the EU for the following three to five years, with the objective of deepening political co operation and economic integration.»

Before examining the provisions of the ENPs regarding movement of persons, I will examine the legal position before their negotiation. In order to understand whether the approach of the neighbourhood, which was designed to move towards the inclusion of these countries in the internal market (including free movement of persons), is in fact leading towards a liberalisation of provisions on movement of persons it is necessary to examine what these countries enjoyed under the pre-existing agreements.

There are three main types of provisions on migration in third country agreements before the neighbourhood arrangements (this paper will not consider the deployment of service providers and their personnel in the context of movement of persons as a separate category from establishment). These are:

Establishment: a number of third country agreements include provisions providing a right of establishment for nationals of the parties in the territory of the other. Some, such as the Bulgaria and Romania Agreements create a right of establishment both for companies and natural persons. This means that individuals from the third country have the right to move to and set themselves up as self employed in any Member State and vice-versa. [10] However, in the agreements with the neighbours, there is at present no right for natural persons to move for the purpose of self employment. There is only a right of legal persons, ie companies to do so and to deploy their key workers for this purpose. Normally where agreements include a right of establishment they also include a right of service provision. Such provisions create a right of access to the territory for service provision by parties (natural persons and companies) for shorter periods where no infrastructure is acquired. In the agreements with the neighbours, again service provision is limited to legal persons (companies) but this can include the sending of their personnel to provide the service. In some agreements these provisions have been found by the European Court of Justice to give rise to directly enforceable rights for individuals.

Equal treatment in working conditions and social security for workers: these are the most common provisions. They have been held by the European Court of Justice to have direct effect but they apply only to workers who have a right of residence and work which emanate from some other source. [11]

Provisions on immigration and asylum in the framework of justice and home affairs. These provisions are programmatic in nature often including references to irregular migration, repatriation and combating smuggling and trafficking in human beings. The legal effects of these provisions appears to be limited. They do not lead directly to readmission agreements nor to any other clearly enforceable power for Member States to return individuals to the third country party to the agreement.

None of the agreements contain provisions on visas, asylum or border management. The question of short stay visas is determined by Regulation 539/2001.

In the Neighbourhood Action Plans there are four main headings which touch on migration:

Visas for short stays. This is a contentious field which is governed by the EU regulation on countries whose nationals are subject to a mandatory visa requirement. [12]

Possibilities for legal migration; this includes reference to establishment as will be seen below.

Irregular migration which is a major matter of consideration and provisions in all of the Neighbourhood Action Plans;

Asylum; and

Border Management.

In the next section I will examine the agreements which already exist with countries in the Neighbourhood programme and what type of provisions exist. I will then move to the ENPs and examine the provisions on movement of persons which exist in each of them.

I will then draw some conclusions from this analysis of the different sets of measures and their consequences in light of the professed objective of embracing the Neighbours in the internal market.

Movement of Persons before the ENPs

Six of the seven countries for which ENPs have been negotiated are states which already have agreements with the EU in the form of legally binding international instruments (a feature missing from the ENPs). All of these agreements have provisions which touch on movement of persons albeit not always directly. I have noted above the main types of provisions which exist in third country agreements regarding movement of persons. In this section I will examine the existing agreements and the benefits which they provide for the individual as regards movement, work and social protection for their nationals seeking to come to or working in the Member States. I will examine the agreements by country rather than by theme in this section. However, when I come to examine the ENPs I will look at each migration provision category and analyse the provisions by country in respect of it. I will not deal with the provisions relating to service provision.

Israel

In respect of Israel there is a Euro-Mediterranean Agreement which entered into force in 2000. [13] Only two provision in that agreement touch on movement of persons. The first, is in respect of the right of establishment. This right which in the EC Treaty is accorded to both companies and individuals, has been included in some third country agreements and has formed the basis of a right of entry to the territory of the EU for economic purposes. [14] In the Israel agreement there is only the possibility of extending the agreement to cover establishment and then it is worded only in terms of companies. However, a number of agreements which provide only a right of establishment to companies expressly permit those companies to send their key personnel to the Member States. [15] Thus such a right can provide an EU right of migration for individuals mediated through their employers. [16] Secondly the Israel agreement includes a rather vague reference to immigration at Article 57: «Migration - The Parties shall cooperate with a view in particular to:

 defining areas of mutual interest concerning policies on immigration,

 increasing the effectiveness of measures aimed at preventing or curbing illegal migratory flows.»

Finally, at Articles 64-66 there is provision for coordination of social security for migrant workers, nationals of the parties. This is subject to implementing measures being adopted by the Association Council. There are no provisions on equality of treatment of workers.

Jordan

Jordan is also a party to a Euro-Mediterranean Agreement which came into force in 2002. [17] Articles 30 - 37 provide for a right of equal treatment for subsidiaries of Jordanian companies in the Member States vis-à-vis companies of the state. There is also a right, at Article 34 for those companies to send their employees (nationals of the state) who fulfil certain criteria (ie who are key personnel as defined) to the Member States. Articles 80-82 of the agreement provide for social dialogue on issues of migration and repatriation of irregular migrants.

Moldova

As regards Moldova, a Partnership and Cooperation Agreement came into force in 1998. [18] This agreement also includes provisions on establishment at Articles 29 - 38. This provision does not extend to natural persons but Moldovan companies are entitled to equal treatment with companies of the Member States as regards establishment of subsidiaries in the Member States. They are also entitled to send their key personnel, ie employees as qualified in the provisions to their subsidiaries in the Member States. Thus there is a right for individuals to move and work via their employers.

It includes a provision on equal treatment for workers as regards working conditions and social security (Articles 23 and 24) but the equal treatment provision is qualified in such a way that it is unlikely to have direct effect. The parties are required only to «endeavour» to secure equality in these fields. This means that it does not constitute an obligation. The social security provision only provides that further agreements will be adopted in the field thus it is also unable to have direct effect.

There is no section devoted to immigration or asylum.

Morocco and Tunisia

Morocco and Tunisia have had Cooperation Agreements with the EU since the late 1960s. [19] When these agreements were renewed in 1976 Morocco and Tunisia succeeded in their demand to include provisions guaranteeing equality of treatment of their nationals who are workers in the Member States as regards working conditions and social security. In interpreting these provisions the European Court of Justice has found both of them to have direct effect and thus nationals of these countries are entitled to rely directly on the agreement provisions vis-à-vis action by the Member States to the contrary. [20]

The current EuroMed Agreement with Tunisia entered into force in 1998 [21] and that with Morocco in 2000. [22] They are identical for the purposes of this study. As regards self employment, these Agreements only provide at Article 31 to widen the scope of the agreements to include establishment. Proposals are to be made by the Association Council as to how to do this. There is a duty to assess progress within the first five years. [23] As regards workers, the provisions guaranteeing non-discrimination in working conditions, remuneration and dismissal now contained in Article 64 are retained as is the right to equal treatment in social security found in Article 65 - 68. Articles 69(3)(a), (b) and (c ) provide for dialogue on living and working conditions of migrant workers, migration and irregular migration and return. These provisions are not directly effective but expand the scope of the Agreements.

The Palestinian Authority

There is a EuroMed Interim Association Agreement dating from 1997 with the Palestinian Authority. [24] It does not cover any of the issues of concern here.

Ukraine

The Partnership and Cooperation Agreement between the EU and Ukraine entered into force in 1998. [25] Regarding establishment, Article 30 provides a right to companies to equal treatment as regards their subsidiaries with other EU companies. While the right to establishment is qualified as a right equal to other third countries, the conditions once established are those of the home state’s companies. Article 35 provides a right to such companies to send their key personnel (as defined) to the Member State. Thus the individual gets an indirect right of movement through the employer. [26]

At articles 24 and 25 there are provisions on equal treatment as regards working conditions and a rather general provision on coordination of social security. However, these provisions are qualified by the obligation on the Member States only to «endeavour» to achieve the result which raises serious questions as to whether they are capable of having direct effect. There are no general immigration provisions though there are references to mobility of researchers.

The Contents of the European Neighbourhood Plans (ENPs)

While the purpose of the Neighbourhood Policy is to increase stability, peace and prosperity in the region, this does not mean that the neighbours are treated alike. In fact the ENPs differ substantially among themselves in many ways. The issue of movement of persons is no exception. Some agreements include many provisions which relate to movement of persons such as the Israel ENP, while others mention nothing at all, like the Palestinian Authority ENP. In general there are seven headings under which movement of persons is raised - visas, regular migration, irregular migration, asylum and border management. Because of the diversity of approaches, I have drawn together under these headings the contents of the ENPs rather than as in the case of the third country agreements, dealing with them state by state. I have not dealt with services here as this area is very unclear and the overall EU intention as regards movement of persons for service provision appears to be to implement multilateral commitments which have been made and are progressing under the General Agreement on Trade in Services part of the WTO Agreements. There has been rather substantial resistance within a number of Member States in 2005 to liberalised movement of third country national service providers and their personnel, thus at the moment the field is uncertain. Suffice it to say that none of the ENPs propose free movement of service providers and their personnel though there are references to GATS commitments in some of them.

Short Stay Visas

All of the neighbours with ENPs are on the Schengen visa black list except one, Israel. This means that nationals of all the others must submit to what is often a humiliating experience at an EU consulate in their home state to seek a visa to come to the EU even for a short visit. Elsewhere I have examined the problems surrounding the Schengen visa system. [27] As Jileva has described in the case of Bulgaria when it was still on the visa black list, the use of authority by EU officials to belittle the potential visitor seeking a visa is both unfortunately frequent and a cause of frustration and anti-EU discontent in the country. [28] The preferential treatment of one of the neighbours over all the others in this rather sensitive area might be considered an odd political choice in a policy which seeks to reinforce peace and stability not excite jealousy and suspicions of favouritism.

Israel: There is no short stay visa requirement for Israelis visiting the Member States in EU law. The ENP makes no mention of visa policy.

Jordan: Jordan is on the Schengen visa black list so its nationals must obtain a short stay visa to visit the UK. Visas policy is a field covered in the ENP as follows: «Start and develop dialogue in visa issues

  Develop visa co-operation, including the possible adaptation of visa systems, the visa and travel documents issuing procedure including their security;

In order to facilitate the circulation of persons, examine within the context of existing structures, the possibilities of facilitation visa issuing (simplified and accelerated procedures in conformity with the acquis).»

This is a far cry from a visa free regime but at least it hints at the possibility of facilitated procedures. This carrot is held out on the basis that the Jordanian authorities take EU advise, it would seem, on document security.

Moldova: Like the Southern Mediterranean countries, Moldova is a visa black list state. Its ENP also includes visas as an issue but the formulation is slightly different from that in respect of Jordan. It reads as follows: «(48) Pursue a dialogue concerning cooperation on visa policy

 Exchange of views on Schengen procedures and initiate a dialogue on the possibilities of visa facilitation in compliance with the acquis;

 Dialogue and exchange of views on visa co-operation (criteria and the procedure for the issue of visas);

Dialogue on document security.»

This is much more explicit than the wording in the Mediterranean ENPs. It states that the issue is the Schengen visa procedures and that the objective is to facilitate the issue of visas. Further, the EU here is willing to discuss the criteria and procedure for the issue of visas, at least in principle. This is a substantial concession as our research has indicated that EU state authorities have a tendency to behave in an apparently arbitrary fashion in the application of the criteria and procedures on the issue of visas. Further, as regards documents only dialogue is envisaged. One cannot help but wonder whether the facilitated travel document procedure which has been agreed by the EU with Russia regarding the movement of Russians resident in Kaliningrad across EU territory has not influenced the discussion with Moldova.

Morocco: As with its neighbours, Morocco is also an EU visa black list country. All Moroccans must obtain visas to visit the EU for a short stay. The ENP also includes dialogue on visas as an issue of concern. The ENP is only available in French but the wording appears to be the same as in respect of Jordan. Oddly, though the order of the two provisions is reversed. For Morocco it looks as if one might begin with the facilitation of the issue of visas and then address the document security issue. It is, however, unclear that there was any intention to differ between the Plans.

Palestinian Authority: There is nothing in the ENP on visas. Palestinians, apparently will remain on the black list and there is no suggestion that things might improve.

Tunisia: Like Jordan, Tunisia is also on the EU visa black list. In its ENP there is also mention of visas as an issue which is dealt with in a similar manner. There is the suggestion that dialogue on the processing of visa applications be opened. Further, for the purpose of facilitating free movement of persons, the ENP calls for an examination of the structures to aid simplification and acceleration of visa issuing procedures for certain categories of persons (to be defined). Privileging some groups in Tunisia in comparison with others as regards the issue of short stay visas is somewhat complicated. First, there is the question of ensuring that the basis is legitimate as it will constitute discrimination against some persons in favour of others. Secondly, depending on the groups privileged, this may cause friction within the state.

Ukraine: This is also a country on the EU visa black list. However, the liberalization of visa policy is referred to in the ENP. «In the context of EU enlargement and the European Neighbourhood Policy, a constructive dialogue on visa facilitation between the EU and Ukraine will be established, with a view to preparing for future negotiations on a visa facilitation agreement, taking account of the need for progress on the ongoing negotiations for an EC-Ukraine readmission agreement.» The overt linkage of mandatory visa requirements and progress on readmission agreements echoes EU policy towards many of (what are now) new Member States in the late 1990s and early 2000. Readmission agreements are agreements which permitted the return not only of citizens but also of third country nationals found irregularly on the territory of one party having travelled through the territory of the other party (see above). In the previous enlargement process, the EU linked lifting of mandatory visa requirements to the signature of a readmission agreement. This policy is clearly continuing as regards the EU and Ukraine.

Legal Migration

Israel: As noted above, Israel has a EuroMed Agreement with the EU but there is nothing on movement of persons, only the possibility of future provisions on social security. Its ENP picks this aspect up, as regards the protection of Israeli workers in the EU: «2.3.3 Movement of persons, including movement of workers and co-ordination of social security

1. Implement the provisions under Article 64 and 65 of the Association Agreement as regards

the co-ordination of social security

Preparation for a decision of the Association Council, in line with Article 65, concerning the ways and provisions for implementation of the objectives in Article 64.»

The provisions referred to here provide for the coordination of social security so that workers who are lawfully working in one of the parties can benefit from the social security system in that country and, depending on the implementation, perhaps export the benefits on their return home. The Moroccan and Tunisian EuroMed Agreements include strong provisions protecting their workers as regards social security in the Member States. It would appear that Israel is seeking equal treatment for its nationals using the ENP as a vehicle.

Jordan: The EuroMed Agreement with Jordan includes provision on establishment for companies. There is no suggestion that this might be extended to natural persons as occurs in the Ukraine ENP. However, as in respect of Israel, attention is focussed on social security and equal treatment for migrant workers. In the EuroMed Agreement, there are no provisions on this at all so the ENP is used as the means to insert social security and working conditions into the relations of the countries. This cannot constitute a right for individuals as the ENPs are not legally binding documents: «2.3.4 Movement of persons including workers and social security co-ordination

(28) Facilitate the movement and integration of workers.

 Equality of treatment of Jordanian and Community workers nationals who are legally residing and working in the territory of the Community or Jordan, elimination of discrimination.

 Coordination of social security schemes.»

Moldova: The first mention of migration related issues in this ENP is rather ambiguous. It refers to the right of establishment in the Partnership and Cooperation Agreement but suggests by its wording that there has been some move to diminish the possibility of Moldova companies to use it: «Ensure full application of the best endeavour standstill clause so that the conditions for establishment of companies are not more restrictive than when the PCA was concluded.» The ENP then moves to the familiar territory of social security and non-discrimination in working conditions provisions of the Agreement: in particular «Ensure full application of the best endeavour clause by abolishing all discriminatory measures based on nationality which affect migrant workers, as regards working conditions, remuneration or dismissal.» In the negotiation of the Agreement, it is understood that the Commission was instructed by the Council to ensure the inclusion of the «best endeavour» wording in order to relieve the Member States of the risk that the provision might have direct effect. [29] It is interesting to note that the ENP seems to suggest that the Member States have had second thoughts about this and want to be bound by the duty of non-discrimination in this field. The ENP also recommends, as in respect of Israel, the adoption of measures to give effect to the coordination of social security between the EU and Moldova.

Morocco: The ENP makes reference to the EuroMed Agreement in particular regarding the application of the non-discrimination articles as regards social security and working conditions. As these provisions have already been held by the European Court of Justice to be sufficient clear and precise to have direct effect Moroccan workers in the EU already rely on them directly against contrary provisions on national legislation. [30] Thus it is somewhat unclear how the ENP will contribute to these provisions be brought into force. The ENP also calls for the adoption of a measure by the Association Council on coordination of social security.

More generally, the ENP calls for the exchange of information on legal migration within the working party Migration and Social Affairs. It specifically mentions that regard must be had to existing obligations of the Member States. However, the ENP also calls for an information campaign in Morocco on legal migration to the EU including information on family reunification, equal treatment and integration of migrants as well as the risks of irregular migration. On practical measures of cooperation, the ENP recommends cooperation on transit migration as regards other countries of transit and those of origin together with accompanying measures. It recommends trilateral and multilateral projects which focus on migration and development and invokes Article 13 of the Cotonu Agreement. [31] As most African countries outside of the ENP are parties to the Cotonu Agreement and Article 13 provides for measures against irregular immigration, it is likely that this proposal seeks to address irregular migration to the EU overland from sub Saharan Africa via Morocco. The ENP also proposes Morocco’s participation in research and observation of migration phenomena and that Morocco should benefit from EU programmes on migration, though without specifying which. The EU promises support in efficient management of migration flows with regard to the human dimension, socio-economic and other flanking measures.

This is the most elaborate of the migration provisions in the ENPs. Clearly Morocco is seen as an important actor and participant in the migration field vis-à-vis the EU. There is a strong undertone of coercive measures but they seem to be primarily directed at the nationals of Morocco’s neighbours rather than at Moroccans themselves. The positive benefits for Morocco are difficult to determine not least as Morocco has already an agreement with strong non-discrimination provisions on working conditions and social security.

Palestinian Authority: There are no provisions whatsoever in this ENP regarding legal migration (or indeed any migration at all).

Tunisia: The ENP does not have many proposals as regards legal migration. On establishment, it recommends more freedom in the field of establishment including the creation of an environment favourable to companies and putting into effect laws on bankruptcy. There is a suggestion that the rules of establishment should not become more restrictive than was the case at the time the EuroMed Agreement was entered into, in other words a sort of standstill provision regarding establishment and that the establishment provision of the Agreement be widened in accordance with article 31. Further as regards workers, the ENP calls for full effect to be given to the provisions on non-discrimination in working conditions and social security (which provisions, as in respect of Morocco are directly effective). It also proposes free movement, self employment and professional mobility within the EU for Tunisians already lawfully installed. This is likely to be covered by the directive on long resident third country nationals which provides for an EU wide right of free movement for workers after five years residence and work in one Member State. [32] It also suggests improvement of the right of family reunification with an common EU standard. This proposal appears to correspond to the directive on family reunification adopted in 2003. [33] Of course both of these directives adopted under Title IV EC apply to all third country nationals so there is no preferential treatment for Tunisians.

Substantial emphasis is placed on the full application of the EuroMed Agreement provisions on social security and non-discrimination in working conditions, though as with the recommendations on family reunification and mobility of long term residents, the ENP is not the critical factor in the achievement or otherwise of the objective.

Ukraine: Establishment features strongly in the ENP for the Ukraine as well. It recommends that both Ukrainian subsidiaries and branches receive national treatment but it goes no further than the Partnership and Cooperation Agreement. In no other context is equal treatment with own companies proposed for branches so this is something of a surprise. It also suggests a progressive abolition of restrictions on establishment. This appears to suggest that Ukraine may be «upgraded» to the same position as Bulgaria and Romania (and Croatia after the end of the transitional arrangements) in that their nationals (natural persons) will get a right to move to the Member States for the purpose of self employment. As regards workers, the ENP makes the same recommendation as in respect of Moldova - implementation of the «best endeavours» provision. The same questions arise here as above. In addition, the ENP calls for the development of social security coordination along the same lines as in respect of the other ENPs.

Irregular Immigration

Israel: In this ENP there are four proposals for action in respect of irregular migration. These are:

 Discussion on the issues of management of migration flows, and cooperation to increase the effectiveness of measures designed to prevent or curb the flow of illegal immigration, including co-operation with the Border Police;

 Exchange of information concerning illegal immigration, including transit migration,

Observation and analysis of the migratory flows; participation in the EUROMED migration research network;

Identification of the conditions in respect of which Israel might be invited as participant/observer in the activities organised in the framework of EU programmes on migration issues (ARGO, AENEAS).

The emphasis seems to be on Israel as a reliable ally in this area. The suggestion that Israeli authorities should participate in EU programmes is an indication of that confidence.

Jordan: The proposals for action with Jordan in this field are more limited. The ENP only specifies two areas for further action:

 Exchange of information on migration issues (entry and stay, integration) and

illegal migration;

 Discussion on the possibility of co-operation on transit migration.

Moldova: Here the ENP is particular concerned to assess the scale of irregular migration to, via and from Moldova and to monitor movements in general. The suggestion that an electronic database be created for this purpose indicates a substantial investment in border controls and related activities. It proposes two activities in this regard:

 Exchange of information concerning, and assessment of the scale of illegal migration in the EU and Moldova, including the establishment of an electronic database for the monitoring of migration flows to, via and from Moldova;

 Further alignment of domestic legislation with EU standards in order to criminalise illegal migration. In respect of supporting Moldova to create an efficient management of migration flows the ENP suggest that financial and expert support will be made available. It refers to the adoption and implementation of Moldova’s National Action Programme on Migration and Asylum Issues (migration issues) as the mechanism to make progress in this area.

However, this ENP is particularly interested in the issue of readmission of Moldovans to Moldova. Not only does the ENP recommend that Moldova enter into a readmission agreement with the EU regarding its nationals but the ENP recommends that Moldova enter into readmission agreements with its neighbours as well. Readmission agreements have been the subject of substantial criticism not only on account of their effects on the relationship between what are often relatively weak governments and their citizens. [34] Dialogue also features in the Moldova ENP both as regards legal and irregular migration. The possibility that Moldova may participate in EU migration programmes, in particular ARGO and AENEAS is put forward. Of course these programmes fund research activities in respect of migration, they do not help migrants directly nor do they open any routes of lawful migration.

Morocco: As in respect of Israel, irregular migration is a matter of substantial concern in the ENP. Five measures are proposed but none of them indicate the degree of confidence apparent in the Israeli ENP. These are:

Exchange of information and dialogue on irregular migration including practical assistance in action to prevent irregular migration;

Assistance for executing the strategy for combating irregular migration through cooperation with the Office of Migration and Surveillance of Borders;

Development of synergies in regional cooperation to prevent irregular migration;

EU action against irregular migration and transit migration with countries of origin, in particular through the ACP Agreement and readmission agreement;

Conclusion and entry into force of a readmission agreement with the EU.

These proposals follow closely the provisions on legal migration, making use of the same instruments. Again the emphasis is on third country nationals in Morocco (ie from sub Saharan Africa) as the problem to be addressed under this heading.

Palestinian Authority: There are no provisions on irregular migration in this ENP.

Tunisia: The ENP proposes an exchange of information on irregular migration and further active cooperation among the partners. It is also agreed that there will be a global, coherent and balanced strategy against irregular migration. In addition there will be reinforced operational capacities including surveillance and control of maritime and land borders as part of a general better cooperation in the region and sub region.

Ukraine: In December 2001 the EU negotiated an Action Plan in Justice and Home Affairs with the Ukraine. This includes a Scoreboard on progress and strict deadlines on implementation. The ENP is to be used to provide greater pressure towards the implementation of the Action Plan and achievement of the deadlines. This is perhaps one of the clearest examples of the Neighbourhood Policy being used to reinforce previous JHA efforts which have been received in the third country with something less than complete enthusiasm. The lack of any positive benefit for third countries from these agreements which tend to place burdens on them in respect of immigration control has meant that their implementation has been rather difficult to achieve. Tying these measures into the Neighbourhood Policy where there are some more general benefits on offer provides a mechanism to put teeth into the JHA provisions.

Asylum

Israel: The ENP recommends an exchange of information and best practices in the field of asylum policy between Israel and the EU. Nothing more is specified.

Jordan: With Jordan the EU only seeks to have a dialogue on asylum issues. This is slightly less ambitious than the exchange proposed to Israel.

Moldova: This ENP and that of Morocco are similar in the field of asylum. There is a section on approximation of Moldovan legislation to the Geneva Convention with particular emphasis on access to the procedure and the principle of non-refoulement. In addition it proposes:

 Development of a system for electronic information exchange between all relevant authorities (border guard, police, Migration Department).

 Advice on Eurodac Regulation and functioning of the Eurodac system. [35]

Adoption and implementation of Moldova’s National Action Programme on Migration and Asylum Issues (asylum issues).

It would appear that the EU intends to integration Moldova more closely into its own asylum allocation system. The emphasis on electronic information exchange indicates an approach consistent with the interest of the EU in obtaining information electronically from the Moldovan authorities in this sphere. The reference to Eurodac is interesting in this regard. Eurodac is the centrally held database of finger prints of all asylum seekers who have sought asylum in the EU (and persons apprehended irregularly crossing an external frontier). It is maintained by the European Commission. Member States are entitled to check the finger prints of any person seeking asylum in their territory against the Eurodac database to see whether he or she has already sought asylum in another Member State. [36] It is not clear from the ENP whether the longer term intention is that Moldova should participate in the Eurodac system though the indication is in this direction. However, Eurodac is a tool to assist in the allocation of responsibility for asylum seekers under the Dublin II Regulation. [37] It does not appear that Moldova will participate in that regulation. This then makes it somewhat peculiar to seek to extend the fingerprinting obligation when it no longer corresponds to the objective of the regulation.

Morocco: There are substantial provisions in this ENP on asylum. A section entitled development of legislation in accordance with international standards in the area of asylum and refugees and the implementation of the relevant UN conventions includes three main provisions:

Implementing the principles of the Geneva Convention (and protocol) not least the principle of non-refoulement, acquisition and maintenance of refugee status and determination of manifestly unfounded applications for asylum;

Place at the disposal of Morocco expertise in the transposition of the Geneva Convention into national law;

Develop administrative structures capable of receiving and determining asylum applications in particular through the training personnel.

The importance of asylum related issues in respect of Morocco reflects the EU’s concern that all of the neighbours respect the Geneva Convention. The EU’s policy as expressed in the draft asylum procedures directive [38] that there be no suspensive appeal right for asylum seekers who arrive in the EU through safe third countries depends on the countries through which EU destined asylum seekers travel respecting the Geneva Convention. If they do not then it is unlikely that the courts of the Member States will permit their authorities to return asylum seekers to these third countries as the courts may not be convinced that these are in fact ‘safe’ countries for the asylum seeker.

Palestinian Authority: There are no provisions on asylum in this ENP.

Tunisia: The ENP proposes new legislation for Tunisia which conforms with international standards in the field of asylum and refugees and gives force to the UN conventions in the field, in particular the Geneva Convention. The EU offers expertise as regards transposition of the Geneva Convention and help with the administrative capacity to deal with refugee claims, including for an authority responsible for refugees and training for personnel. Importantly, the ENP proposes assistance with reception capacity.

Ukraine: No specific mention is made to asylum in the ENP. Regrading migration issues, reference is made to the December 2001 Action Plan between the EU and Ukraine on JHA and an EU Ukraine JHA Ministerial Troika meeting in November 2002.

Border Management

Israel: There is no mention of border management in the Israel ENP.

Jordan: This ENP has limited references to border management mainly in the form of an exchange of information and practices regarding EU standards and the intention to develop regional co-operation between relevant law enforcement bodies.

Moldova: This ENP plans a system of efficient, comprehensive state border management including in Transniestria. To achieve this the ENP recommends:

 Implementation of the Concept on Border Control adopted on 4 December 2003, in particular the transformation of the Border Guards into a law enforcement agency, and make necessary amendments to national legislation.

 Enhancement of inter-agency co-operation (among authorities involved in state border management) as well as co-operation with neighbouring countries, including border demarcation and the conclusion of co-operation agreements.

 Starting to develop a comprehensive education and training strategy on state border management, including improved understanding of Schengen rules and standards.

 Enhancement of equipment and the development of infrastructure for efficient state border management.

Further the ENP proposes more cross border cooperation not only between Moldova and the EU but also between Moldova and its neighbours. This cooperation is envisaged as including law enforcement bodies.

Morocco: There is more emphasis in this ENP on border management. It is agreed that there will be reinforced organisational and institutional capacities for border controls regarding exit and entry into the country. The four funding headings under the EU financing programme MEDA relating to border management are stressed - institutional support, training for staff, equipment and sensitising a targeted public in regions and sectors particularly affected - are mentioned as is further cooperation in the region regarding border management.

Palestinian Authority: There are no provisions in this ENP on the subject.

Tunisia: The ENP proposes six measures in respect of the management of borders. These are:

Reinforcing the organisational capacities and institutions responsible for borders and entry and exit;

Securing travel documents (and visas); Exchange of information on experiences and systems of border management; the EU proposed to make available to Tunisia expertise on border management;

Development of a training strategy for border management;

Development of regional cooperation among border management authorities;

Improvement of the administrative capacities of the border guards including infrastructure at control points.

Clearly the EU wishes to make available to Tunisia better mechanisms of border management.

Ukraine: As in respect of asylum, there is no overt reference to border management. Rather reference is made to the existing Ukraine EU Action Plan on JHA dating from December 2001 and a joint ministerial meeting in the field in November 2002.

Conclusions

The EU neighbourhood is quite a variegated place. When one examines the provisions on movement of persons one has the impression that the neighbours are extremely different even when they border one another. When the neighbourhood policy was developed, it was inspired by an expansive spirit of inclusion of the neighbours in the benefits of the internal market including free movement of persons. By the time a process was established to develop the neighbourhood policy, the approach towards persons appears to have changed substantially. As regards the positive side, there is little on offer as regards short stay visa policy or legal migration. In respect of the former, for some countries there is the possibility of facilitated visa issuing but this is a small minority. As regards legal migration, there is very little on the table which the neighbours do not already have by virtue of their agreements with the EU or, in the case of Tunisia, as has been offered to all EU resident third country nationals. On reading the recommendations, one has the impression that a bundle of rights and possibilities which have already been accorded in other venues and by other means are being repackaged in the ENPs and presented as «carrots» to encourage the neighbours to buy into the repressive measures. This is particular so as regards the promise of equal treatment in working conditions and social security for their nationals legally working in the EU. Not only is this a basic component of the EuroMed Agreements but it is also incorporated more generally in EU law through a number of other measures.

As regards irregular migration, the emphasis is on placing obligations on the neighbours to act as the buffer between the EU and other third countries as regards irregular migration. Exchanges of information, monitoring irregular migration flows, readmission agreements, these are the staples of the ENPs in this area. The consequences of this approach are likely to be to harm the neighbours relations with their neighbours beyond the EU as our neighbours will be required to take coercive action against the nationals of their neighbours. Instead of reinforcing solidarity in the region such an approach is likely to create tensions and instability.

On asylum, there is a positive emphasis on upholding the standards of the Geneva Convention. Those neighbours which are not yet parties are encouraged to do so. This is very a good neighbourhood policy, widening the application of refugee protection in accordance with international law. Unfortunately the ENPs also give the impression that the reason for the insistence that the neighbours live up to the Geneva Convention protection of refugees is not so much inspired by concern for refugees but in order to be able to apply the safe third country rule to the neighbours and return asylum seekers from the EU to their neighbours more efficiently. At the moment, one of the hindrances which the EU Member States encounter as regards the application of the safe third country principle is the suspicion of their own judges that the neighbouring states are in fact fully compliant with the Geneva Convention and thus an asylum seeker returned there would be well protected from refoulement.

Finally as regards border management, the emphasis is very much on the neighbours as the border guards of the EU responsible for keeping out of the EU those third country nationals which the Member States do not want. Exactly how these persons are to be identified is not clear but the objective is.

As in respect of the positive aspects for the neighbours, the repressive aspects of migration policy included in the ENPs seem to be the same measures which have been recommended for the neighbours in the former Third Pillar by the interior ministries of the Member States and consolidated in the work of the High Level Working Group. They have been repackaged and placed in a setting where there are more benefits globally for the neighbours. Whether they are any more in the interests of the neighbours now than before remains a moot point. By adopting repressive measures against their own nationals who seek to travel to the EU, the neighbours’ authorities risk diminishing their legitimacy in the eyes of their own people. Instead of protecting their nationals against what is often seen as unfair treatment by the EU (particularly in the field of the issuing of short stay visas and readmission agreements), these authorities may appear to be abandoning their people in favour of good relations with the EU. When the neighbours put into practice the repressive measures in the field of movement of persons against the nationals of their neighbours, what is at stake is the stability of the region.