The relation between national, European and international law with respect to European borders; the security implications of this relationship; the specific effects of agreements on freedom of movement of goods, capital, services and persons

Objectives

Summary of overall aim:

This package aims at an input of the securitization debate in legal circles and from legal studies into political and social science. It intends to clarify the shifts in governance in security issues at the physical borders of political society in Europe. Main results shall consist of interim reports relating to the various issues summed up, and a final report in book form with the analytical issues, their results, final conclusions and recommendations.

The team intends produce papers and academic articles on immediately related issues, which both contribute to and build upon the interim reports. These are to be published in national and international periodicals and reviews and thus have an academic impact at least.

Further dissemination effects are expected in particular through its Round Table Conferences.

The Round Table Conferences will have an international (i.e. European) character in which legal experts and policymakers of the Member States of the European Union will participate. The main objective of the Round Table Conferences is to exchange information and points of view on the issue of external borders, including a critical analysis of proposals and decisions made at that stage on the legal regime on external borders as they may be developed by the European Commission, the Council of the European Union, the Convention and Inter-governmental Conference, to be convened in 2004/2005, and to draw up recommendations for future proposals and decisions in this respect. The dissemination effects of these international round table conferences should be guaranteed by the particular choice of participants.

Objectives

The project proposed consists of an identification of the shifts in governance that have occurred with respect to the competence with regard to external borders control in the light of the protection of internal and external security. It does so with particular regard to their consequences in terms of accountability and the position of individual citizens towards competent public authorities. This is studied from the legal point of view. We shall collaborate closely with Workpackages 5, 6, 7, 10, 12 and 14 as well as inform the observatory of our findings (workpackage 17).

The project charts the present situation, the various types and nature of legal competence existing with regard to external borders of the EU (i.e. the borders of Member States with non-EU States as they can be crossed by persons entering and leaving EU Member State territory). This regard both policing the physical borders as such and the related competence to control the crossing of external borders of persons in the light of perceived security threats (the latter regards the right of persons to enter and to leave Member State territory). Given the transitory state of affairs in this field, it is necessary to discuss developments with regard to legal competence leading up to the present situation and take full regard to the developments which have occurred and keep occurring.

In classifying the various competences, a matrix is to be developed which distinguishes between the various intergovernmental and community methods, (‘third pillar’, ‘regular first pillar’, title IV EC Treaty and extra-Community competence). Reference will be made to the work already carried out by the ELISE FP5 project to consult the groundwork carried out there. The consequences of the various intergovernmental and community methods for national competence in relevant fields must each time be established within this matrix. Next this matrix is to be refined into a «third dimension» as regards the so-called security exceptions and safeguards and their influence on levels at which legal competence is exercised.

Particular attention is finally paid to two issues which result from the various shifts between competent levels of government:

1) the possibilities of political accountability, control and legitimacy through representative assemblies (role of national and European parliaments) and alternative forms of accountability, legitimacy and control (ombudsman-like institutions, watch dog committees etc.);

2) the position of individual citizens, particularly consequences for legal protection of individual citizens.

Description of work

a. problem definition, hypothesis / research question(s)

In this section you will first find the research questions, an indication of the approach for researching them, and next, by way of elucidation of these, the broader description of the problem and hypotheses in the field of this package.

Research questions

The main research questions are the following:

1) what is in legal terms the present situation with regard to legal competence over border control?

2) at which level of governance is which competence located?

3) what are the particular modes under which competence can be exercised at the respective levels of competence, particularly in terms accountability and individual legal/ judicial protection?

4) what is the nature of the present proposals (mainly Commission proposals, but also certain proposals by Member States in the framework of the Third Pillar) with regard to border control?

5) how does the issue of security affect the border control competence at the various levels?

6) in what direction does securitization lead in terms of the locus of competence?

Approach

The approach to be taken in the research is mainly that of the legal-analytic, legal-historic and comparative legal studies method. This involves with regard to the first two, the fourth and part of the fifth research questions an analysis of the (draft) legal instruments at national, EC and EU level (including the Schengen-acquis). Even a merely descriptive overview of the legal competences resulting from these instruments at these various levels is lacking at present, although there is a great need for a more complete inventory of these. This - often underestimated - descriptive work is a prerequisite for the whole project of this package. The input material is to a large extent provided through the public documents. However, particularly where pending and expected proposals are concerned, we will also have to rely on input from NGO’s such as the Meijers-commission (which is also to participate in the Round Tables), Statewatch and others. Also it will be necessary, as the need arises, to have selected interviews with officials (and other persons in relevant institutions involved) for additional information.

The descriptive work needs to be analyzed, using the traditional techniques from the canon of juridical interpretation of legal sources, thus unraveling the ‘grammar’ of the relevant texts with regard to legal competence in our field of research.

This descriptive and analytic work should result in a ‘matrix of competence’, which is to be presented at a fairly early stage, but may need to be refined in the course of the projects further results (and due to developments taking place with regard to its object, i.e. the legal instruments, e.g. new Commission of MS initiatives, the developments concerning the EU Constitution etc.).

With regard to the third and sixth question, the analysis resulting from the first two research questions is to be critically confronted with the set of norms and principles devolving from the accountability and legal protection frameworks provided at the various levels in which competences are situated (the national framework, the general EC framework, the EU framework and the special Title IV EC framework [including the post-Amsterdam Schengen-acquis framework]). Close cooperation with workpackage 6 (and other workpackages mentioned above) is envisaged. Here an evaluative approach may at least to some extent be involved. This evaluative approach from the perspective of legal studies will focus on issues like coherence and consistency, also from the legal systematic point of view. As regards issues of effectiveness, this workpackage hopes to profit from the output provided by other workpackages in this integrated programme. Integrative aspects of the programme are to be strongly involved here

The field of problems to be studies and the related, hypotheses

Security within the state and security of the state has been viewed - perhaps increasingly so - as a protection against threats originating from outside the state confines and imported into states as consequence of cross border movement of persons. Nation state control over this was based on the territorial dimension of the state, and the location of security and other controls of persons and goods at the borders.

European integration has drastically changed the formerly fairly clear-cut territorial confines of State competence. Since the creation of an EC internal market without internal borders and its Schengen-counter part, the external borders of the State have become a matter that is no longer under the exclusive control of national states. Through abolition of internal border control within the EU, external borders of Member States have by and large also become those of the European Union. But this by no means implies that external borders are no longer national borders. There has not been a simple, unidirectional shift from Member States to the EU, as was the case with some other forms of European integration.

In reality not even the resultant legal configuration of EU-territory is clear: a number of non-Member States take part in the juridical framework which determines the external borders competence, viz. Norway and Iceland through Schengen-association agreements; moreover, some Member States have a special position (the UK/ Ireland ‘opt-in’ facility and the special position of Denmark) with regard to these (formerly) ‘Schengen’-arrangements, which renders EU-regulation precarious for these states. Things are further complicated because of the transfer of certain relevant competences from the intergovernmental «third pillar» of the EU together with the so-called Schengen-acquis, to title IV of the European Community (on the «area of freedom, security and justice», but which reserves to the Member States the exercise of the responsibilities incumbent upon [them] with regard to the maintenance of law and order and the safeguarding of internal security»), which has in several respects a separate position within the «first pillar » aimed at further Member State control. If the draft-Constitution for the EU of the Convention is ever to result into a structure which on the surface seem to unify the various regimes, much of this variegated and complex state of affairs will survive both in law and in practice. It will even lead to new questions regarding the so-called ‘acquis’ with regard to these matters at the EU level.

Substantively, Member State competence has as a consequence not been done away with in the field of external border control in at least two respects: firstly, the physical guarding of the external borders is for the moment an exclusively national matter, although the European Commission has recently launched a number of initiatives; secondly, legal competence has been retained e.g. in the field of admission of third country nationals on an exclusively national title. Yet, enormous pressures have occurred towards addressing the security issues as trans-member-state issues, which should have a bearing on the Member States’ competence.

An analysis of both the literature and the policy documents will be undertaken to show that the issue of control of external borders has on the one hand had enormous consequences for the migration policies dominating the political agendas of all European states. This can be shown by correlating the various physical characteristics of the various Member State borders (to take a crass example: Italy versus Luxembourg). At the same time the manner in which the issue of border control is approached is determined by the migration policies that states wish to pursue: the hypothesis is that in order to pursue a restrictive immigration policy, tighter border controls are being called for. Hand in hand with these policies, the perceived issue of security as a third variable has climbed on the policy agendas.

A central hypothesis to be tested in this workpackage is that this third variable - security concerns - has strongly interfered with the issue of external border controls. From a legal point of view - the central approach taken in this workpackage - there are three kinds of legal parameters pertaining to the various levels at which legal competence with regard to border control is exercised: the competence within the area of freedom, justice and security under Title IV EC Treaty (which can at least potentially mean a Europeanization of competence), the existence of competence under the Third Pillar of the EU Treaty (which makes possible an increased trans-national «horizontally coordinated» competence), and a reserved national competence of individual Member States due to «security exceptions» to European or trans-national competence stipulated in the primary legal instruments. Thus, the problem of legal aspects of external borders in the light of security issues is an eminent example of the intricacies of multilevel governance caused by the process of European integration. Disentangling some of these intricacies is called for.

Particular attention is to be paid to the consequences of the shifts in governance that have occurred with respect to the problem adumbrated, in terms of accountability and the position of individual citizens towards competent public authorities.

The project charts the present situation, the various types and nature of competence existing with regard to external borders, both as concerns guarding the physical borders and the related competence to control the crossing of external borders in the light of perceived potential security threats, and the consequences of this for the protection of citizens’ rights and accountability.

b. research objective

Above we have already made some remarks which elucidate the manner of attaining the research objectives.

As we have said, the key objective of this project is, firstly, to trace the various levels at which competence is located and how they relate to each other in view of the legally sensitive issue of security; secondly, to determine the consequences for citizens, their legal protection and for the legitimacy of governance in terms of accountability, public exposure/scrutiny, and parliamentary input in the decision-making process. We attain this in our project through the activities described under the deliverables in which the milestones described below will be the beacons.

The activities are mainly centered on two types, which will mainly take place in the Instituut voor Staats- en bestuursrecht of the University of Utrecht’s Law Faculty (of course in cooperation with the institutes involved in the other workpackages to which this package is related - see above).

1) The first set of activities takes the form of the preparation and publication of a set of reports, ultimately to appear as one final book at the end of the project. This is an independent activity, leading to an integrated result: one book comprising the earlier reports and findings.

This study is to develop the matrixes described under the «objectives» in the box above, and develop this in the course of the project. The key senior team-members from the Instituut voor Staats- en bestuursrecht, University of Utrecht, involved are Professor H.R.B.M. Kummeling, chair of constitutional law; Dr. L.F.M. Besselink, associate professor of constitutional law; Dr. A. Woltjer, lecturer and researcher. These senior team members will conduct research and take responsibility for the work-package. They will also undertake research mainly funded by their Institute itself, but which will contribute to the work in this package. This guarantees for flexibility and an input into this work-package, as it is embedded into the research programme of the Institute.

A prospective researcher is to be appointed especially to the project of this workpackage if the CHALLENGE project is awarded, for which expert candidate is Ms. E. Renting, LLM (name of candidate provided the project can start in the early months of 2004).

2) Next to this there will be two Round Table conferences.

a) First Round Table conference on «The Legal Regime on Crossing the External Borders of the EU»

The first Round Table should be organized in the first 18 months of the project’s cycle. It shall focus on the proposals submitted by the Commission of the EU on border guards and their implications for the legal competence (Member State/ EU), legal and political control (what powers of search, seizure and use of violence will be controlled by whom?), and of legal protection of citizens (against which measures, which might infringe on fundamental rights or otherwise interfere with rights, lies appeal to what court or other tribunal or body?).

This Round Table Conference is to take place in March 2004 (depending on start of the project).

Proposed title:The Legal Regime on Crossing the External Borders of the EU

Meeting: Public

Participants to be invited (apart from consortium members):

Members of the Standing Committee of Experts in Immigration Law, Refugee Law and Criminal Law (Meijers Committee) and representatives of its European counterparts. Lawyers in the field of Immigration Law and Refugee Law, EU wide Experts and Scholars, EU wide: Members of the national parliaments and the European Parliament

Aims of the meeting:

Examination and discussion of the proposals of the European Commission, the Council of the European Union, and the IGC on the measures to be taken on the establishment of border control at the external borders of the EU

b) Second Round Table on «External Borders of the EU: the legal regime and the implications on the right of free movement of persons»

A second Round Table is foreseen towards the end of the project cycle. It should focus on the results of the project, particularly with a view to the security issue. It is aimed at discussing results in the field of this project (dissemination), «horizontal» integration of this project within the larger integrated programme and outside input of experts. The results of these Round Tables will be a set of conclusions and recommendations relevant to policymakers on the national and EU-level. This Second Round Table Conference is to take place by February 2007, depending on start of the project.

Proposed title:External Borders of the EU: the legal regime and the implications on the right of free movement of persons

Meeting:Public

Aim of the meeting:

Discuss the outcomes of the research-project in the light of the developments that will have taken place with regard to border control and analyse these developments from the perspective of the guiding principles underlying the research project .

Participants to be invited (outside consortium members):

Members of the Standing Committee of Experts in Immigration Law, Refugee Law and Criminal Law (Meijers Committee) and representatives of its European counterparts, Lawyers in the field of Immigration Law and Refugee Law, EU wide Experts and Scholars, EU wide Members of the national parliaments and the European Parliament