86
PART THREE: THE DEVELOPMENT OF ASYLUM POLICY IN THE EUROPEAN UNION
I. Introduction
The purpose of this research is to examine the influence of the European integration on
the development of asylum policy in the European Union (EU). The central question in
this respect is to what extent did regional integration and the creation of new policy
making bodies affect the development of asylum policy in the EU. Moreover, what are
the impacts of the new measures taken by the EU on asylum seekers?
The basic assumption of this research is that EU regional integration has paved the way
for an asylum policy which sets itself apart from the ways other Western nation-states
deal with the issue. While establishment of an asylum policy in Western society always
involves the difficulty of satisfying the contradictory objectives of adherence to liberal
universal asylum standards, on the one hand, and the desire to control immigration into
one's country, on the other, the special features of the EU tend to deepen this difficulty.
The result has been that EU integration has increased the motivation for the development
of a more restrictive asylum policy.
There are number of reasons why the EU has adopted a more restrictive asylum policy .
Though the EU model differs from the traditional model of nation-states, the EU, since it
must represent the interests of its individual member states, cannot escape similar
exclusionary pressures. Like any nation, it must also try to develop a policy that reflects
the conflicting goals of promoting the interests of the citizens of its member states while
also respecting universal human rights. In fact, it appears that this conflict is even more
severe in the case of the EU, due to its unusual position. The EU entails multiple actors
(representing the various member states), who both participate in the policymaking while
at the same time continue to protect their own national interests. Moreover, it appears that
the EU is more vulnerable compared to other Western democracies, as it is still involved
with the community building process and consideration of new members. It is attempting
to create a strong common identity and to gain legitimacy by demonstrating its
87
effectiveness in promoting the interests of its citizens. One side effect of this tendency to
stress the priority of EU citizens is to take into account their concerns and fears about
new migration pressures. Thus, if citizens are concerned about migration, EU policy-
makers have to prove their effectiveness in this area. And indeed, in recent years the EU
has adopted relatively restrictive measures in the field of asylum.
In the coming chapters the progress leading to the development of asylum policy in the
EU will be described. The main documentary sources and other points of reference to
illustrate the path the EU (and Member States) have chosen to follow will be examined.
There are a number of important road marks along this path. The first was the Schengen
Agreement (1985) and the Single European Act (1986), which abolished intra-EC borders
and allowed for the free movement of persons. While EU Member States were in favor of
these initiatives, they feared losing control of the movement of non-EC nationals as a
result of the new fluidity at the national borders and the new migration pressures. The
result was a growth of interests in promoting common migration and asylum policy. Yet,
while different levels of cooperation were available to deal with the new border situation,
at first Member States preferred not to develop a common immigration policy but to
adopt a number of measures to pursue their own immediate interests. The next significant
step was the signing of the Treaty of Maastricht and the founding of the European Union
in 1992. The signing of the Treaty of Maastricht offered a higher degree of cooperation
among Member States, though negotiations among EU Member States revealed
differences of opinions over the extension of the EU's powers. Certain countries
supported the idea of a common immigration policy, while others were of the opinion
that intergovernmental cooperation was the best solution to avoid undermining the
sovereignty of the national state. Nevertheless, the desire to work together has grown in
the course of the years. As Member States attempted to limit the number of
migrants/asylum seekers entering EU territory, they realized that this goal could only be
fully achieved if other members did not pursue a contradictory policy. The result was a
clear shift from purely intergovernmental cooperation to implementation of common
policies, highlighted by the creation of a common asylum policy in the 1997 Treaty of
Amsterdam. Currently, negotiations are being carried out which are to result in the
88
promulgation of concrete measures by May 2004.
II. Towards the Creation of a Regional Refugee Policy in Western Europe
One of the more important developments after the Second World War was the creation of
the European Economic Community (EEC) in Western Europe. The search for peace and
stability in light of the horrors of war induced European states to dismantle many of the
conditions necessary for war, with the creation of the European Community for Coal and
Steel237
, and to pursue common economic interests with the establishment of the EEC. At
first, the EEC consisted of six members including Germany, France, Italy, Belgium, the
Netherlands and Luxembourg. In the course of time additional countries such as
Denmark, Britain, Ireland (1973), Greece (1981), Spain, Portugal (1986) Sweden, Austria
and Finland (1995) joined the Community. Community members initially defined their
activities primarily through the lens of economic interests and plans to move towards
more intensive political cooperation emerged only in the mid 80s. In many ways this
process began as the new political situation in the world, namely, the gradual decline of
the Communist Bloc was becoming more evident. As the EC members began to
appreciate the opportunities made possible by this new political environment, they were
motivated to implement a number of political and economic reforms. To a large extent
these steps were not possible during the Cold War, as the EC members preferred not to
provoke the USSR238
. Yet beyond the need of the EC to be flexible and to carefully select
the political measures to be taken under the political conditions at the time, a major
reason for the relatively modest political cooperation between EC members during the
Cold War was related to the particular stage of development that the EEC was in. The
237
See "Schuman Declaration" of May 9, 1950 calling upon European countries to join the common
control on coal and steel. Hans August Lücker & Jean Seitlinger (2000), Robert Schuman und die Einigung
Europas, Editions Saint-Paul, Luxemburg, pp. 87-91.
238
For this reason a number of European countries such as Sweden, Finland and Austria were reluctant to
join the European Community during the Cold War. As they wished to remain neutral (and maintain good
relations with the Soviet Union) during the Cold War, they preferred a membership in the European Free
Trade Area (EFTA) rather than in the EC. As Pedersen noted, "the EFTA was seen as a defensive move
with no long term political purpose". Moreover, "while the EC was both a Custom Union and a Common
Market, EFTA merely aimed at removing internal trade barriers on industrial goods". Thomas Pedersen
(1994), European Union and the EFTA Countries. Enlargement and Integration", Pinter Publishers,
London, pp. 20-21. See also Philippe G. Nell (1990), "EFTA in the 1990s: The Search for a New Identity",
Journal of Common Market Studies, Vol XXVIII, No. 4, June 1990. Only after the collapse of the Soviet
Bloc did they submit their application for EU membership.
89
EEC was primarily designed to be a new form of diplomacy, restoring the relations
between European countries and overcoming their mutual hostility. Members of the
European Community did not seek to replace the traditional nation-state, but to create a
new alliance which would open the way for economic and political cooperation239
. The
gradual progress towards European unity began in the mid 1980s with the creation of the
Single European Act (SEA) and the founding of a European Union in the 1992 Treaty of
Maastricht. This increased unity not only offered a higher degree of cooperation among
Member States, but also led to the introduction of a new set of rules governing
policymaking that significantly differed from other approaches prevalent in the Western
world.
1. The Schengen Agreement and the Single European Act: The Logical
Consequences of the Free Movement of Persons
Until the mid-1980s there was no significant attempt among EC members to cooperate in
the field of migration and coordinate asylum policy towards non-EC nationals. As the
European Community in its incipient stage tended to focus primarily on economic rather
than political cooperation, migration and asylum policy were considered to be the
exclusive concern of the individual Member States. Another reason for the lack of
motivation to develop common policy measures was associated with the perception of
migrants in Europe. Until the early 1970's the admission of non-EC nationals into EC
countries was not recognized as a possible threat to the local citizens. On the contrary,
many European countries were encouraging the entrance of migrant workers to
compensate for the lack of local labor. Thus, the policy which emerged was one which
facilitated the admission of migrant workers from outside the EC240
. EC legislation such
as Regulation 1616/68/EEC, for example, guaranteed entry and residence to families of
non-EC migrant workers. Council Regulation 1408/71 specified that there should be no
discrimination between EC and non-EC migrants. Finally, based on bilateral agreement
between a Community member and non-EC country, non-discriminatory treatment is to
239
See Article 2, the Treaty of Rome.
240
The Treaty of Rome provided for the free movement of workers (Articles 48-51 of the EC Treaty ­ [old
numbering] envisaged that by December 1969 EC nationals would be free to work in other EC countries).
This freedom however, did not refer to non-EC nationals.
90
be assured to non-EC nationals working in the EU241
.
The relative liberal attitude towards non-EC nationals gradually begun to change after the
early 1970s. With the oil crisis of 1973 and increased numbers of foreign workers,
European countries began to adopt a new approach towards non-EC nationals, responding
to the growing public demand to halt migration. At the time migrants represented about
6% of the total population242
. But while EC members gradually introduced restrictive
measures at the national level, a policy at the EC level was still not desired243
. In June
1980, for example, the Council published guidelines for the community labor market
emphasizing the need for consultation only with regard to third countries244
. As Collinson
also observed, the limited EC jurisdiction in the area of third country nationals was
expressed in the types of agreements concluded between the EC and third countries. The
Cooperation Agreement with Tunisia, Morocco and Algeria in 1978 or the Association
agreement with Turkey and the Additional Protocol of 1980 were generally limited to
non-discrimination clauses, rather than specifying migration or asylum policy of the
individual Member States as such245
.
The degree of cooperation between EC members in the area of asylum and migration
policy significantly increased as a result of the Schengen Agreement and the Single
European Act. As a result of these agreements, the borders between EC members became
much more open. Along with these initiatives the new migration pressures and the large
241
For example, the Association Agreement between the European Community and Morocco stipulates that
Moroccan workers in the EC will benefit from non-discriminatory treatment. See also Willy Alexander
(1994), "The law applicable to nationals of third countries in the absence of agreements between the
Community and their countries", Actualités du droit, p. 289.
242
Between 1969 and 1973 about 570.000 workers from third world countries were admitted every year
into the European Community. At the same time, the share of EC workers, in particular Italians, who
constituted about half of the foreign labor in the EC in the 1960s, constantly dropped. See W. Mole (1991),
The Economics of European Integration, Aldershot, Dartmouth, p. 208.
243
See Giuseppe Callovi (1992), "Regulation of Immigration in 1993: Pieces of the European Community
Zig-Saw Puzzle", International Migration Review, vol. 26, No. 2, pp. 355-357.
244
In 1974, the EC adopted an Action Program for Migrant Workers and their Families to provide for the
examination of future development. Moreover, the Council of Minister adopted in 1976 a resolution calling
for a Community approach to non-EC nationals. But since this resolution was not legally binding, the
Council of Ministers did not attempt to transform this document into compulsory legislation. See also
Council Resolution of July 16, 1985 on Guidelines for a Community Policy on Migration, Official Journal,
C 186, 26.7.1985, pp. 0003-0004.
245
Collinson, op.cit., pp. 122-123.
91
number of non-EC migrants residing in the EU tended to change the Member States'
perception about migration, making it more desirable to cooperate more closely with
other EC members.
In June 1985 five Member States, namely Germany, France and the Benelux countries
signed the Schengen Agreement allowing for the gradual abolition of controls at their
common borders. The agreement was basically a product of a Franco-German initiative
aimed at facilitating the movement of trucks crossing their frontiers by removing the
checks in their common borders246
. The result was the abolition of police and customs
formalities for people goods and services crossing intra-community frontiers247
. The
Schengen Implementation Convention concluded in 1990, provided for specific measures
to implement this agreement.
Not all Member States participated in the scheme to dismantle border control, though the
signatory states declared this act to be an expression of an "ever closer union of the
peoples of the Member States"248
. Italy, for example, though favoring the integration
process, was not invited to sign either agreement. The major reason for this stems from
doubts harbored by the signatory states as to whether Italy would take the necessary
measures to effectively implement the agreements. Britain and Denmark, on the other
hand ­ already often described as Euro-skeptic towards the integration process -
vigorously opposed these initiatives, expressing concern about the Schengen Agreement.
In many ways this reservation seemed to reflect the lack of trust in the Community
members. In other words, Britain's and Denmark's view was that border control should
fall under the competence of the national government, as other states cannot sufficiently
246
On July 13, 1984 Germany and France concluded an agreement at Saarbrücken to remove the obstacles
to the free movement of transports by abolishing police and customs formalities for people and goods
crossing intra-community frontiers.
247
As Geddes notes, while the Commission was allowed to participate as an observer, Member States
concluded the provisions of this agreement alone. Andrew Geddes (2000), Immigration and European
Integration. Towards fortress Europe?, Manchester University Press, p. 81.
248
The decision to remove the checks on the common borders was already decided in the European Council
in 1974. The Commission suggested to first gradually remove the checks by facilitating the movement of
persons crossing the common frontiers and than to abolish them. See Alberto Achermann, Roland Bieber,
Astrid Epiney & Ruth Wehner (1995), Schengen und die Folgen. Der Abbau der Grenzkontrollen in
Europa, Verlag Stämpi + Cie AG, Bern, pp. 22-23.
92
ensure the common borders. Thus, as a result of British opposition, Ireland, which shares
a Common Travel Area with Britain, was prevented from joining the Schengen
agreement. Denmark finally decided to join and by 1996 all EU members with the
exception of Britain and Ireland were signatories to the Schengen Agreement: Italy
(1990), Spain, Portugal (1991), Greece (1992), Austria (1995), Sweden, Denmark and
Finland (1996). Moreover, due to the Nordic Passport Union249
between Denmark,
Finland, Sweden, Norway and Iceland, the Schengen Agreement - originally designed to
include EU Member States only ­ was applied also to Norway and Iceland250
. As
"associate members", they were allowed to express their opinion but had no right to vote
and to take part in the decision making process251
. The Schengen Agreement of 1985 and
the Implementation Convention of 1990 came into force in 1995.
In contrast to the Schengen Agreement, which was initially an arrangement limited to just
a few Member States, the Single European Act (SEA), signed in February 1986, was
open to all Community members252
. It was not, in contrast to the Schengen Agreement,
separate from the EEC Treaty but part of the latter. The SEA's purpose was to upgrade
and amend the EEC Treaty while creating an internal market by 1992, "in which free
movement of good, persons, services and capital was to be insured". While the SEA
primarily promotes the idea of "an area without internal frontiers" with the ultimate goal
of achieving greater political unity, one of its most important innovations was the
transition of focus away from just the free movement of workers and self employed
(Article 48 and 52) to the broader category of free movement of persons in general. The
249
The Nordic Passport Union signed in 1954 provides for the free movement of persons between
Denmark, Finland, Sweden, Norway and Iceland.
250
Lars Bay Larsen (1997), "Schengen, the Third Pillar and Nordic Cooperation" in: Monica den Boer
(ed.), The Implementation of Schengen: first the widening, now the deepening, European Institute of Public
Administration, Maastricht, the Netherlands, p. 18.
251
See also Free movement of Persons in the European Union, Working Paper, European Parliament,
September 1998, p. 8.
252
The European Council meeting in Luxembourg on December 2-3, 1985 to discuss the SEA faced a
number of difficulties. Italy, for example, preferred this act to be brought before the national parliament in
view of its historical implications, whereas Denmark had already opened it up to public debate by arranging
a referendum. Greece for its part had no particular objection to the SEA but nevertheless preferred to make
a decision on the basis of how the latter two countries would decide. In the end, nine Member States signed
the agreement on February 17, 1986, while Italy, Denmark and Greece signed the act on February 18. For
more details about the draft treaty establishing the European Union, see Desmond Dinan (1999), "Ever
Closer Union". An introduction to European Integration. The Macmillan Press, London, p. 119.
93
Treaty of Rome allows only for the free movement of workers, whereas in the framework
of the newly created Treaty of Maastricht, Member States pledged to allow citizens from
other Member States to enter their territory by opening their national border. Moreover it
allows EU nationals to reside in another Member State and take the nationality of a
Member State if they wish.
The decision to move forward towards establishment of the European Union ("to make
concrete progress towards European unity" Article 1, SEA), and, in particular, the
establishment of the free movement of persons, had large ramifications on the desire for
cooperation between Member States. While Member States were aware of the advantages
that the new European model provided via the Four Freedoms of the Single Market, they
were concerned about the implications of this initiative, specifically in light of new
migration pressures and the increased vulnerability at the national borders. The result was
a growth of interest in promoting common migration and asylum policy253
. Nonetheless,
the formulation of a common policy was not easy, as Member States were wary of having
control of their borders given to the EU. Thus, while different levels of cooperation were
available to address the immediate problem of trans-border migration, Member States
preferred to develop short-term solutions to pursue their immediate interests. Hence, the
first measures to be taken were used to counter some of the more threatening results of
the Schengen Agreement and the Single European Act, namely, confronting the
externalization of borders control and the free movement of persons.
2. Initial Outcomes of the Single Market Initiative: the ad-hoc Group on Migration
and the Schengen Implementation Agreement
The Commission's White Paper for the Implementation of a Single Market by the Year
1992, of June 1985, stressed that a number of specific measures relating to migration
were necessary to establish the Single Market. The Council however, provided only a
general statement about how these measures could be realized. In its 1985 Resolution on
the Guidelines for a Community Policy on Migration of 1985, for example, the Council
253
Werner Weidenfeld (1994) (ed.), Das europäische Einwanderungskonzept. Strategien und Optionen für
Europa, Verlag Bertelsmann Stiftung, Gütersloh, pp. 20-21.
94
merely declared that, "it is desirable to promote cooperation and consultation between the
Member States and the Commission as regards migration policy, including vis--vis third
countries"254
. Only in a declaration annexed to the final act of the SEA, in 1986, did
Member States for the first time explicitly express their expectations towards cooperation
on migration issues255
. The Schengen Agreement also was explicit, listing the measures,
which needed to be taken in the area of migration policy; "the application of this
agreement require legislative measures". It made a distinction between short and long-
term measures and suggested the improvement of external and internal EC border checks
to prevent the movement of terrorists, drug traffickers, criminals and illegal migrants.
The Agreement also mentioned the desirability of harmonization of visa policies and
close cooperation among members to avoid asylum abuse. One of the suggestions in this
respect was that the signatory states should attempt "to approximate their visa policies as
soon as possible in order to avoid the adverse consequences in the field of migration and
security that may result from easing checks at the common borders" (Article 7).
Under the British EU Presidency the first meeting of the twelve EC immigration
ministers was held in London in October of 1986. The ministers emphasized the need to
re-examine the repercussions of the free movement of persons, and in particular, how this
movement would impact the fight against illegal migration, terrorism and drug
trafficking. As a result of this meeting, the ministers also decided to set up an ad-hoc
group on immigration which was charged to prepare a working program describing
specific measures necessary for the achievement of the Internal Market256
. In the Rhodes
254
"Much closer consultation and cooperation is required at the Community level in the implementation of
national migration policies vis--vis third countries". See Council Resolution of July 16, 1985 on
Guidelines for a Community Policy on Migration, Official Journal, C 186, 26.7.1985, pp. 0003-0004.
255
"In order to promote the free movement of persons, the Member States shall cooperate in particular as
regards the entry, movement and residence of national of third countries". See the "Political Declaration by
the Governments of the Member States on the Free Movement of Persons", annexed to the Final Act of the
Single European Act.
256
As Hentges notes, the name of the group alone implies the nature of its activities: Terrorism,
Radicalism, Extremism, Violence International (TREVI). It was established to deal with internal security
and reported annually to the meeting of the interior ministers on its activities. See Gudrun Hentges (2002),
"Refugee and Asylum Policy Influenced by Europanisation" in Evans Foundation (ed.) Europe's New
Racism? Causes, Manifestations and Solutions, Berghahn Books, New York, p. 107. See also Tony Bunyan
(1997) (ed.), Key texts on Justice and Home Affairs in the European Union. Vol. 1 (1976-1993). From
Trevi to Maastricht, Statewatch, London, p. 9.
95
European Council of December 1988, the immigration ministers also established a group
of coordinators to oversee the policy allowing the free movement of persons. Like the ad-
hoc group on migration, the activity of this group was structured on an intergovernmental
basis, and thus EC institutions could influence the decision making process. One major
achievement of this intergovernmental cooperation was the formulation of the Palma
Document adopted at the Madrid European Council in June 1989257
. This document
contains the compensatory measures considered to be essential for the implementation of
the free movement of persons, referred to the development of a mechanism for
determining which nation is responsible when asylum is requested, specified rules
governing external border controls, and described the future European information
system.
The signing of the Schengen Implementation Agreement in 1990 represented major
progress in specifying how migration and asylum policy was to be implemented. And in
fact, most of the objectives presented in its agenda were eventually achieved. The
Implementation Agreement aimed at developing a new mechanism to address the
priorities and needs of the Member States and suggested a plan to avoid the negative
implications of the internal market. The starting point was to guarantee that efficient
mechanisms would be used to control the entrance of non-EC nationals into the EC. For
this reason, policy-makers readily ignored the differences between legal migrants, asylum
seekers and illegal migrants, describing them all as alien, and tended to see them as
obstacles to the freedom of movement. This confirms the idea that from the national
perspective, the entrance of asylum seekers as well as migrants was viewed as needing
control.
Moreover, the measures suggested by the Member States with regard to the abolition of
checks at internal borders and free movement of persons show that the signatory states
257
While several action plans were offered, the document made a distinction between "measures which are
essential" and "measures which are desirable". Thus, for example, in the field of asylum essential measures
referred to the determination of the State responsible for examining the application of asylum, while
desirable measures referred to the possible examination of criteria for granting the right of asylum and
refugees status. "The Palma Document" Free Movement of Persons. A Report to the European Council by
the Coordinators' Group, Madrid, June 1989. See also Korella, op.cit., pp. 49-50.
96
were prepared to cooperate and even harmonize their policies on issues which were
believed to be central to state sovereignty. The most important policy in this respect
concerned the granting of visas to non-EC nationals: "the contracting parties undertake to
peruse through common consent the harmonization of their policies on visas" (see Article
9)258
. The fact that EC members did not reject the idea of cooperation on such issues
demonstrated that they were capable of being flexible in policy formulation if they were
likely to benefit from the consequences. Another attempt to deal with consequences of
the new circumstances related to the treatment of asylum seekers. Thus, for example,
Article 30 of the Schengen Implementation Agreement aimed at developing a mechanism
that would impose the responsibility of responding to applications of asylum to a single
state, "If two or more contracting parties have issued an asylum seeker with a visa of
whatever type or a residence permit, the contracting party responsible shall be the one
which issue the visa or the residence permit that will expire last". Whereas in the past
asylum seekers could apply to all twelve Member States, they could apply now for to
only one Member State. This provision was eventually incorporated in the signing of
1990 Dublin Convention, which placed severe restrictions on the ability of asylum
seekers to ask for asylum. The 1985 Schengen Agreement did not address this issue,
partly because asylum became a major point of discussion in the political agenda of many
European countries only with the increase number of asylum seekers into their territory in
the early 1990s259
.
An additional area of cooperation between Member States, though of a different nature,
was police matters. The contracting parties undertook, "to ensure that their police
authorities shall, in compliance with national law and within the scope of their powers,
assist each other for the purpose of preventing and detaching criminal offenses" (Article
39). Criminal offenses included murder, rape, kidnapping, trafficking in human beings,
258
"Visa arrangements relating to third states whose nationals are subject to visa arrangements common to
all Contracting Parties at the time of signing this Convention or at a later date may be amended only by
common consent of all contracting parties". See Article 9.
259
As the United Nations High Commissioner for Refugees noted, whereas in the beginning of the 1980s
the total number of people seeking asylum in 23 European Countries from Poland to Portugal was 71.000,
in 1992 the figure was over 700.000. See Sadako Ogata (1993), "Refugees and Asylum Seekers: A
Challenge to European Immigration Policy", Towards a European Immigration Policy, The Philip Morris
Institute for Public Policy Research, Brussels, October, p.14.
97
and illicit trafficking in narcotics. Cooperation in police matters was based on the
assumption that removal of border controls could adversely affect the quality of security
and thus promote criminal activity. One of the inevitable outcomes of cooperation in visa
and police activities was the construction of a detailed information system, the so called
the "Schengen Information System", to enable the authorities to exchange important
information "to maintain public policy and public security" (Article 93).
It was decided to appoint an executive committee for the purpose of implementing the
convention" (Article 131), in which every state had a seat and decisions were to be taken
unanimously (Article 132). The European Parliament repeatedly criticized the way the
committee functioned, claiming that it lacked transparency in the decision making
process, "there is no provision for democratic accountability, no role for the European
Court of Justice and not even a limited code of access to documents"260
. Moreover, the
meetings of the executive committee were not public unless otherwise decided. The
European Parliament also often criticized the measures adopted by the signatory states. It
argued that the signatory states were motivated by the wish to limit migration waves. The
creation of the Schengen area, it stated, "must not be the excuse for introducing
systematic controls in border regions or for hermetically sealing the external borders
('fortress Europe')"261
.
The approach taken at the Schengen Convention suggested that the main concern that
came to dominate the policy of EU Member States was how to limit the number of
migrants into EC territory and how to provide a feeling of security. Member States gave
the impression that they believed that the creation of the Single Market would be
accompanied with negative side effects, including increased migration. In this
environment, asylum seekers were viewed as a threat, and EU Member States shared the
opinion that they needed to provide measures to reduce the number of asylum
applications. Under this state of affairs the road to the drafting of the Dublin Convention
became inevitable.
260
See also Free movement of Persons in the European Union, Working Paper, European Parliament,
September 1998, p. 22.
261
Ibid., p. 24.
98
3. The Dublin Convention
The Dublin Convention signed in 1990 and ratified in 1997 was a result of the Single
Market initiatives. With the abolishing of internal borders, asylum seekers were no longer
considered an exclusive concern of the individual states, but rather of the Community as
a whole. Hence, a common approach to asylum had become necessary. One of the
Schengen Agreement's guiding principles was that a person applying for asylum in one
Member State is not entitled to apply for asylum in another one, if the first application
had been rejected. Exceptions could be made when family members of the applicants
(wife and minor unmarried child) were already recognized as refugees and were residing
in a different Member State than the one where the application was lodged (Article 4) or
in cases where the applicant concerned had a valid residence permit or a visa issued by
another Member State262
.
While the provisions of the Dublin Convention, emphasizing the importance of a
common asylum policy, could be justified as necessary due to the creation of a single
market, a harmonized asylum law did not emerge. Rather, the convention simply
authorized Member States to examine applications on behalf of all other Member States
in accordance with their national law 263
. What has finally emerged is a mutual
recognition that the right of asylum seekers to look for shelter elsewhere in the EU should
be withheld once the application was rejected by a Member State, this even in the
absence of a common asylum policy. In other words, notwithstanding the fact that a
differentiation of asylum treatment among EU Member States still prevailed, only one
application could be submitted. This point is critical, since the Geneva Convention places
no limits on the number of applications for asylum. If the EU wished to "guarantee
adequate protection to refugees in accordance with the terms of the Geneva Convention"
as stated in the preamble of the Dublin Convention, a more honest approach would have
262
If the applicant has more than one valid residence and/or visa permit the responsibility will be assumed
by the Member States, which granted him the longest period of residency. See Article 5.
263
Karsten Kloth (2000), "The Dublin Convention on Asylum- An Introduction" in: Marinho Clotilde (ed.)
The Dublin Convention on Asylum. Its Essence, Implementation and Prospects, European Institute of
Public administration, Maastricht, p. 9.
99
been to first decide on a timetable for achieving a harmonized asylum policy and only
then to adopt the above-mentioned measures. The Member States, however, were not
ready to follow this reasoning. Instead they favored a coordination of their policies,
striving to protect their national interests by limiting the entrance of potential asylum
seekers into EU territory and encouraging the notion of unfounded claims for asylum.
From the EU perspective the Convention was found to be very efficient in preventing
"asylum shopping" by limiting the number of applications. At the same time it also
opened the door for a long and bitter debate between Member States about identifying the
country most responsible for examining an application.
4. The External Border Convention
As a result of the decision to dissolve existing internal border controls, a first draft of an
External Border Convention was submitted a to EU immigration ministers by the 1989
French Presidency. The main objective of this Convention was to "remove the obstacles
to the full abolition of internal border controls"264
while laying down the rules governing
the crossing of external borders by non-EC nationals. The Convention defined "external
borders" as the land of a Member State not sharing a common border with another
Member State, airports and seaports (except those used solely for internal flights) and
made special arrangements for controlling these frontiers. It included, for example,
regulations to ensure that passengers with a connecting flight will be subject to control at
the airport in which they make their departure. Additional measures referred to travel
documents and the period of stay in a Member State. It was also decided that the rules
governing "short" (less than three months) stays should be distinguished from those
governing "long" stays: while the Convention provided the possibility of mutual
recognition of short term stays for non-EC nationals, it left to the individual Member
States to decide about long term visas.
The Convention also attempted to formulate visa policy towards non-EC nationals. EC
Member States were able to make significant progress in this regard. In 1995, the EC
264
Riccardo Faini (1995), "Migration in the Integrated EU" in: Richard E. Baldwin, Pertti Haaparanta &
Jaakko Kiander(eds.), Expanding Membership of the European Union, Cambridge University Press, p. 145.
100
presented a list of countries whose nationals would need a visa when crossing the
external border of a member state. This list included poor countries, such as India and
Pakistan, which had the greatest potential for dispatching immigrants to the EU265
.
Signing of the Convention, however, was blocked as a result of a dispute between Spain
and Britain on the status of Gibraltar266
. Nonetheless, most of the objectives declared were
achieved outside the framework of the Convention. Visa policy, for instance, was subject
to Community law after Maastricht. Moreover, once almost all EU member States
became members of the Schengen Convention and the Schengen information system
(SIS), it was no longer necessary to refer to the External Border Convention as most of its
measures were adopted via Schengen267
.
III. The Maastricht and the Justice and Home Affairs Pillar: A Bastion of National
Sovereignty
The idea of the internal market was discussed at the 1985 Intergovernmental Conference
(IGC). The plan that emerged was to amend the Treaty of Rome to include the Four
Freedoms (movement, service, capital and goods) in an area without internal frontiers.
The establishment of the Economic Monetary Union (EMU) was considered especially
265
Philip Alan Butt (1994), "European Union Immigration Policy: Phantom, Fantasy or Fact?" West
European Politics, vol. 17 No. 2 April 1994, p. 176. See Council Regulation (EC) No 2317/95 of 25
September 1995 determining those third world countries whose nationals must be in possession of visas
when crossing the external borders of Member States, Official Journal of the European Communities, 1995,
L 234/1. In addition to the countries mentioned in the Common List for which a visa was needed, the
Commission published another list of countries not included in the Common List but whose nationals
nevertheless needed a visa to reside in one or more specific Member States, see Commission
Communication of 14 December 1996, Official Journal of the European Communities, 1996, C 379/3. In
December 1995, the European Parliament appealed against this decision to the European Court of Justice
since the Council did not consult the Parliament. The Court of Justice annulled this measure and as a result
the Council, on the basis of Article 100c in the Maastricht Treaty, had to consult the Parliament.
266
Gibralter is considered a British dependent territory under the Utrecht Treaty of 1713. When Britain
joined the European Community in 1973, Gibraltar received a special status. Spain, however, refused to
accept this and attempted to win back the sovereignty of Gibraltar, though a referendum in 1968 showed
that the vast majority of the people of Gibraltar wished to remain under British rule: 12,148 in favor, 44
against. Moreover, in 1997, the government of Gibraltar made it clear that it was not seeking independence
but to maintain the political ties to the UK "through a modernized, non-colonial constitution". At the same
time it stressed that Gibraltar "wants and seeks good neighborly relations and mutual cooperation with
Spain". See statement by the chief Minister of the government of Gibraltar, the Hon Peter Caruana,
Brussels, January 29, 1997.
267
See Klaus-Peter Nanz(1995), "The Schengen Agreement: Preparing the Free Movement of Persons in
the European Union", in: Bieber and Monar (eds.), op.cit., pp. 45-46.
101
important among the Member States. As the latter came to view economic cooperation
with considerable interest, they proposed the creation of a single currency zone to
eliminate the last barrier to trade. Along with the creation of the EMU, attention was also
gradually paid to other policy areas that traditionally had been assumed to be the
provenance of individual Member States, such as foreign policy, justice, and home
affairs268
. Although historically the EU exhibited relatively poor performance in the
political sphere, external factors in the early 1990s forced the EU to act more
effectively.269
. The end of the Cold War and the emergence of the Yugoslavian crisis
prompted Member States to strengthen their will to fulfill the necessary conditions to
play a major role in foreign policy and present a more unified political front270
. In the
field of migration it was recognized that new arrangements were necessary to deal with
the waves of migration and asylum seekers resulting from the formation of the internal
market and the collapse of the Soviet Union.
In order to coordinate the direction of the European Union it was left to the 1991 IGC to
make the appropriate measures, eventually leading to the signing of the Maastricht
Treaty. During the IGC discussions, Member States divided into two main approaches.
Some countries supported the federalist approach, advocating for political integration
which was likely to carry supranational characteristics, while other countries were of the
opinion that intergovernmentalism was the appropriate form of governance for this stage
268
As the EC lacked the ability to operate in world politics outside the field of economics, the President of
the Commission declared in 1985 that the EC is an "economic giant but political dwarf". For a further
analysis of Delor's expectations of the Internal Market see "Das neue Europa" (1992), Carl Hanser Verlag,
Munich.
269
In the Kohl-Mitterrand letter of April 20, 1990 to the Irish Presidency, the German and French leaders
supported the idea of a second IGC on political union. "In the light of far-reaching changes in Europe and
in view of the completion of the single market and the realization of economic and monetary union, we
consider it necessary to accelerate the political construction of the Europe of the twelve With this in
mind...the European Council should initiate preparations for an intergovernmental conference on political
union. In particular, the objective is to: strengthen the democratic legitimization of the union, - render its
institutions more efficient, - ensure unity and coherence of the union's economic, monetary and political
action, - define and implement a common foreign and security policy". European Political Cooperation
(EPC) began in 1970 but the creation of the internal market and the collapse of the Soviet Union gave a real
boost to the development of this common policy.
270
During the IGC on Political Union and Economic and Monetary Union, EU policy makers were obliged
to develop foreign policy mechanisms to meet the challenge of the post-cold war period. Thus, it was
expected that the EU would now play a major role in maintaining peace and stability in Europe as well as
in the world. See Charlotte Bretherton and John Volger (1999), The European Union as a Global Actor,
Routledge, London and New York, p. 178.
102
of development271
. To some extent these different approaches were expressed in other
policy areas, such as asylum. The Maastricht Treaty signed on February 7, 1992 and
ratified in November 1993 was based on a compromise between these two notions. The
Treaty provided three structural pillars - the first pillar dealing inter-alia with the internal
market and competition, external trade, EMU, and the environment, were subject to
community law. In contrast, in the second and third pillars, describing Common Foreign
Security Policy (CFSP) and Justice and Home Affairs (JHA), respectively, policy-making
was clearly proscribed as intergovernmental in character and thus largely decided at the
national level.
1. The Road to Maastricht: Preparatory Work before the Conclusion of the Treaty
of the European Union (TEU)272
At the 1990 IGC in Rome dealing with the EMU and with political union, Member States
had to determine what kind of cooperation they would like to develop. While recognizing
the need to redefine the Community competence in these specific areas, they also
considered "whether and how activities currently conducted in an intergovernmental
framework could be brought into the ambit of the Union, such as certain key areas of
home affairs and justice, namely immigration, visas, asylum and the fight against drugs
and organized crime"273
. The Luxembourg Presidency suggested four options in January
1991: 1) developing cooperative measures outside the Community framework; 2)
introducing a short reference in the Treaty to the principle of cooperation and leaving it to
the Council to work it out in detail; 3) defining the exact fields in which to cooperate; 4)
achieving full communitarization, i.e. the decision making process will be subject to
Community law. As Corbett notes, Member States reacted with mixed feelings. While the
Netherlands, Belgium, Italy and Spain were in favor of harmonization, Germany and
France preferred option three with the possibility of moving towards a harmonized policy
271
See Renaud Dehousse (1994), "From Community to Union" in: Renaud Dehousse (ed.), Europe after
Maastricht. An Ever Closer Union, C.H. Beck, Munich, p. 6.
272
The Treaty of Maastricht established the European Union. The Treaty of the European Union
incorporates the Maastricht Treaty and further amendments. After the ratification of the Amsterdam and
Nice Treaties, for example, the TEU included the amendments made in these two Treaties.
273
See Conclusions of the European Council Meeting held in Rome, December 14-15, 1990.
103
in the future. The UK, Ireland and Greece choose option two and Denmark "could accept
either one or two"274
.
The positions shared by the Member States to a large extent coincided with their
ambitions and hopes with regard to the integration process. The Benelux countries, from
the early years of the EEC, became great supporters of "a more unified inter-state
system". The Second World War experience as Nugent notes, "re-emphasized their
vulnerability to hostile and more powerful neighbors and the need to be on good terms
with West Germany and France". This could explain why they backed most of the
proposals made by France and Germany. Italy and Spain took a similar position but for
different reasons; the economic benefits the Community brought to their countries,
formerly suffering from high inflation and an unemployment rate275
, made them look
favorably on the integration process276
.
Britain277
, Ireland, and Denmark278
, on the other hand, took a minimalist approach to the
integration process. They often expressed great concern about their potential loss of
274
Richard Corbett (1993), The Treaty of Maastricht, Longman, Essex, pp. 48-49.
275
EC membership has proved very beneficial to Italy and in particular to Spain. Thanks to the generous
access to the EC structural funds and regional aid plans, the number of Spanish nationals migrating to other
European countries, in particular France, declined over the years. Moreover, Spain, which traditionally was
an emigrant country become a receiving country due to its membership in the European community.
Christopher Preston (1997) Enlargement & Integration in the European Union, London, Routledge, pp.
144-145; see also Heinz Werner (1994), "Regional Economic Integration and Migration: The European
Case", The Annals, vol. 534, July pp. 154-155.
276
See Neil Nugent (1999), The Government and Politics of the European Union, Fourth Edition, Palgrave,
London, pp. 24-25.
277
To a large extent the tense relations between Britain and the EU paralled Margaret Thatcher's views
towards the EU. The extremely negative attitude of Thatcher towards the integration process led to harsh
criticism in Europe as well as in Britain. Anthony Bevins, for example, declared: "What you have is a
position in which Mrs. Thatcher is now out of the mainstream of thinking, not simply of socialist leaders
and socialist governments, but even of right-wing governments". Anthony Bevins, The Independent, May,
9 1989. See Norbert Himmler (2001), Zwischen Macht und Mittelmaß. Großbritanniens Außenpolitik und
das Ende des Kalten Krieges, Duncker & Humblot, Berlin pp. 65-73 and 170. See also Stephen George
(2001), An Awkward Partner. Britain in the European Community, Oxford University Press, New York, p.
15. Britain, for example was the only EC country, which did not accept the Community Charter of the
Fundamental Social Rights of Workers of December 9, 1989, which established the main principles on
which the European model for labor law should be based. The Charter includes, for example, social
protection, freedom of association, health care, vocational training, protection of children and adolescents
and the improvement of living and working conditions. The Charter itself is not a legally binding document
but it imposes obligations on the signatory states to guarantee, as far as possible, fundamental social rights.
It also contains a specific mandate for the Commission to propose an action program to implement the
104
sovereignty, particularly during the debate over the extension of EU institutional
powers279
. The position of Ireland towards refugee policy at the EU level generally
followed the British position, partly due to its economic and political dependence on the
latter as well as for the fact that, in any case, the number of refugees applying to Ireland
for asylum was small280
. The consequence was that these latter countries, and in particular
Britain, was extremely hostile to any motion that included the increase of power of EC
institutions at the expense of the sovereignty of the individual Member States.
France and Germany, the main "engines" of the Community, often took a leading role in
the formulation of Community policy. Indeed, most of the proposals made till the 1990s
were the result of cooperation between these two countries281
. With regard to formation
of asylum policy they were also very activist. In fact, the decision of a second IGC on
political issues leading to the introduction of the third pillar was basically a result of a
Franco-German initiative282
. Moreover, France, and in particular Germany, made
Charter's aims. European Commission (1994), "Community Social Policy", Internal Market, Vol. 6 July
1994-EN pp. 67-87.
278
In Denmark, the first referendum on the ratification of the Maastricht Treaty was rejected by the general
public and thus the European Council had to work out special arrangements for the Danes. See Conclusions
of the European Council meeting in Edinburgh, December 11-12, 1991.
279
The British approach favoring a limited role of the Union reflected its general ambitions and the way it
viewed its role in the world. Although Britain sought to become a member of the European Community (in
spite of President de Gaulle's opposition), it did not seek to limit itself to cooperation in the European
Continent only, but sought to foster its relationship with the Commonwealth and the United States as well.
But since it lost its former colonies it gradually realized that a closer cooperation with the EC is necessary.
This was clearly demonstrated since 1997 with the election of Tony Blair. David Gowland and Arthur
Turner (2000), Britain and the European Integration 1945-1998. A Documentary History. Routledge,
London, pp. 71-72.
280
The position of Ireland, as Bill Shipsey notes, was unique among EU Member States. Until 1996 Ireland
immigration and refugee policy was subject to the 1935 Alien Act which made no explicit reference either
to the term asylum or refugee. However, since the 1980s asylum policy was regulated by the minister of
justice, who used the Ten-Point procedures to determine refugee status. The need to adopt specific
measures on asylum did not appear to be necessary for the small number of asylum seekers. In 1991, for
example, 31 persons applied for asylum in Ireland, and in 1992 and 1993, the number had risen to 39 and
91 respectively. See Bill Shipsey (1997), "Asylum Policy and Title VI of the Treaty on European Union" in
Gavin Barrett (ed.), Justice Cooperation in the European Union, Institute of European Affairs, Dublin, pp.
174-175.
281
The European Political Cooperation (EPC) understanding of 1970, for example, was a result of an
agreement between France and Germany. The close cooperation between the two also led to the creation of
the European Monetary System in 1979 (EMS). See Ben Soetendorf (1999), Foreign Policy in the
European Union, Longman, London, p. 21.
282
Thomas Oppermann (1998), `Du Plan Schuman au Traité D'Amsterdam: La Coopération Franco-
Allemande, Moteur de L'Integration Européenne' in La Coopération Franco-Allemande en Europe 
L'Aube du XXIe Sicle, Presses Universitaires d'Aix-Marseille, pp. 31-39. See also Wichard Woyke (2000),
105
suggestions encouraging cooperation on asylum. The European Council of 28-29 June
1991, for example, welcomed the German proposal on the issue of migration and asylum
and, "noted with interest the practical proposals submitted by the German delegation,
which supplemented the work already carried out in this area"283
.
With regard to the nature of the measures to be included in building the justice and home
affairs pillar there were a number of options. The Commission prepared several proposals
and in particular proposed a Communication to the Council and Parliament on
immigration and asylum policies. The 1991 Communication laid down the policy
guidelines for Community action with regard to migration and asylum. This plan was
based on three main principles: the need to take action to alleviate migration pressure;
controlling migration flow and strengthening integration policy. The Commission
acknowledged the fact that economic aid to third countries could help to reduce migration
to Western Europe. Moreover, it called for harmonization at the national level and
recommended intergovernmental procedures concerning the treatment of asylum seekers
that would lead to a decrease in migration flow. The Commission was also of the opinion
that a common policy towards the deportation of illegal migrants and harmonization of
criteria for reuniting families ought to be established. At the same time the Commission
stressed the responsibilities of the EU towards migrants within its own borders. Thus, it
encouraged Member States to promote integration policy while emphasizing the
importance of guaranteeing the protection of migrants and refugees in the EC. It linked
the right of free movement of persons within the Community to the need for Members
States to ensure that immigrants and especially non-EC nationals become well integrated
into their adopted countries. For this reason, the Commission called for joint measures to
prevent discrimination against immigrants in a variety of areas and to provide access to
employment, housing, health, education and job training284
.
Deutsch-französische Beziehungen seit der Wiedervereinigung, Leske Budrich, Opladen, pp. 41-47.
283
See the Conclusions of the European Council, Luxembourg, June 28-29, 1991.
284
See Communication from the European Commission to the Council and the European Parliament on
Immigration and Asylum Seekers, Brussels, SEC (91) 1855 final, 23.10.1991, p. 2-12.
106
In addition to the Commission Communication, the twelve EU ministers of immigration
worked out a program establishing the work of the Union for the coming years. They
prepared a report on immigration and asylum policy for the European Council, calling for
coordination and harmonization of asylum policy. The report demonstrated that the
immigration ministers had a clear preference for promoting migration control rather than
integration strategy for non-EC nationals. While stressing the restrictive nature of
migration policy, they declared that "the term 'immigration policy` used in this context
may be misleading in that no EC Member State currently conducts a policy focused on
immigration. It is on the contrary the control of immigration that is involved"285
. The
result was that the report contained proposals for efficient reduction of the number of
immigrants and asylum seekers and identified strategies for achieving this aim through
various programs.
In general the ministers noted the main tasks necessary for implementation of migration
policy in both the broad and specific senses. The former refers to the elimination of the
causes of immigration, as it was realized that even if Member States would succeed in
harmonizing their national policies, "results will be limited unless the causes of migratory
pressure are also addressed"286
. Hence, they suggested taking into account the different
factors behind migration; "in some countries the main reason behind migration would be
the socio-economic situation, whereas in other countries ethnic tensions or demographic
factors might be predominant"287
. Specific policy issues involved actions leading to the
harmonization and coordination of European migration policy. These issues were mainly
concerned with common procedures and regulations regarding expulsion, illegal
immigration and restrictive admission policy. With regard to the position of non-EC
nations in the EU, estimated at the time at 8.3 million, no decisions were taken modifying
the existing legislation, although the hope was expressed that EU policy makers will,
285
"Thus EC ministers responsible for immigration must in particular pinpoint those aspects which are
related to migration policy in the strict sense of the term". See Report "From the Ministers responsible for
immigration to the European Council meeting in Maastricht on immigration and asylum policy". Brussels,
December 3, 1991 (05.12) (OR.f) SN 4038/91 (WGI 930) in: Elspeth Guild. (1996), The Developing
Immigration and Asylum Policies of the European Union. Adopted conventions, Resolutions,
Recommendations, Decisions and Conclusions, Kluwer Law International, The Hauge, pp. 449-491.
286
Ibid., p. 465.
287
Ibid.
107
"examine which rights third country nationals should be able to enjoy among those
enjoyed by Member State nationals". It was noted that this does not mean that admission
policy has to be fully harmonized before the situation of third country nationals is
improved288
.
The twelve immigration ministers also noted the measures to be taken concerning
asylum289
. They realized that, "the initial results of co-operation between Member States -
the Dublin Convention to determine the State responsible for examine applications for
asylum and the draft Convention between the Member States on the crossing of their
external frontiers by non-EC nationals - in themselves implied that a more through
harmonization of policy was needed"290
. Thus, the ministers agreed that, "harmonization
of asylum policy is a logical component of the increasing co-operation amongst the
twelve on immigration". As it turned out, harmonization policy did not mean that
Member States were planning to change their laws on asylum, rather, it referred to the
harmonization of procedures and fundamental policy rules as a mechanism to control
(and reduce) the number of asylum seekers291
. The ministers did not wish to define who is
a refugee and who is entitled to have access to refugee status, and only supported the
development of measures determining who is not entitled to asylum. It was assumed that
Member States did not wish to use this forum to undermine national sovereignty by
limiting their ability to decide who is a refugee. Moreover, assuming it would be difficult
to find a common definition, they chose to concentrate on exclusion procedures,
specifying who is not a refugee. By doing so, they left considerable room for maneuver,
satisfying national concerns by allowing considerable independence on this issue. Two
different strategies were adopted at this point: defining the concept of "clearly
unjustified" application for asylum, defined as those applicants whose "real aim is to
migrate for other, mostly economic reasons"292
and the drawing up of a plan to
288
While the ministers made a proposal for measures to be taken by the Member States they argued, "this
does not mean that admission policy has to be fully harmonized before the situation of third country
nationals is improved". Ibid., p. 472.
289
These steps formed the basis of the proposals submitted by the ministers of immigration to the EU.
290
Ibid., p. 450
291
Ibid., p. 476.
292
It is interesting to note that to justify this position the ministers argued that UNHCR also supported
accelerated procedures for "clearly unjustified" applications for asylum. See Guild, op.cit., pp. 480-481.
108
implement the Dublin Convention. The Member States eventually adopted these
proposals in 1992.
2. The Treaty of Maastricht and Justice and Home Affairs Cooperation
The Maastricht Treaty signed on February 7, 1992 mandated that migration and asylum
issues be dealt with by the intergovernmental third pillar - Justice and Home Affairs.
Under the title "Provisions on cooperation in the fields of justice and home affairs"
Article K1 stipulated that in order to achieve the objective of the free movement of
persons, Member States should regard the following areas as matters of common interest;
asylum and immigration policy; rules governing the crossing of non-EC nationals of
external borders of Member States; conditions of entry and change of residence by
nationals of third countries on the territory of Member States, including family reunion
and access to employment; combating unauthorized immigration; judicial cooperation in
civil and criminal matters; customs and police cooperation for the purpose of preventing
and combating terrorism; and combating unlawful drug trafficking and other serious
forms of international crime.
As the third pillar was based on intergovernmental cooperation, the EU's attempt in
integrating its Member States migration, asylum and judicial policies in the Treaty of
Maastricht would seem to serve as a possible starting point ­ both for a new discourse on
migration and possible models of cooperation in these fields. This cooperation was also
based on the realization that the Member States' aims of limiting the number of
migrants/asylum seekers entering their territory implied that increased police cooperation
would be needed, as one of the implications of a more restrictive migration policy would
be an increase in the number of illegal migrants293
. Thus, in order to overcome these
difficulties a new policy was build around the idea that cooperation would likely lead to
achievement of the aims of the EU members. The result was a new integrated approach,
293
In various documents the problem of illegal migration was recognized. Indeed, soon after the signing of
the Treaty of Maastricht a report to the European Council in Edinburgh from the Coordinators Group on the
free movement of persons described the potential danger of the integration process on illegal migration. See
1991 Edinburgh European Council.
109
based on a strong link between migration policy and internal security294
. This link would
be further strengthened in the course of the years and in particular after the Amsterdam
Treaty.
The concern about the growing threat to internal security as a result of the increased
openness of the borders prompted Member States to work together in this area. In the
field of judicial cooperation in criminal matters EU Member States had already achieved
much progress before the signing of the Maastricht Treaty. Alderson observed in 1988
that "there is much common ground already concerning the control of international drug
trafficking and it might be anticipated that through approximation of laws and police
operations anything lost at internal border checks would be regained at external borders
and by means of internal police collaboration"295
. Under the new Treaty in addition
Member States were given the opportunity to deepen their cooperation by establishing
Europol.
Another important evolution resulting from Maastricht, which helped Member States
justify coordination on security measures between national police forces and adopt
common measures on immigration, was related to the creation of European Citizenship.
Article 8 of the Treaty of the European Union (TEU) explicitly states that, "Citizenship
of the Union is hereby established" and thus, "every citizen of the Union shall have the
right to move and reside freely within the territory of the Member States"296
. The
establishment of European Citizenship was a significant step towards the development of
a more unified Europe. But while allowing easy access of all EC nationals to Member
States' territory, this concept resulted in a complex situation with regard to the legal
position of non-EC nationals residing in EU territory. European Citizenship did not
include non-EC nationals. In addition, as a declaration annexed to the Treaty of
Maastricht made clear, decisions on granting citizenship could only be determined by
294
Werner Weidenfeld (1992), "Die Innere Sicherheit als europäische Politik", Innere Sicherheit im
Europäischen Binnenmarket, Verlag Bertelsmann Stiftung, Gütersloh, pp. 15-17.
295
Indeed, Member States had already decided on establishing the Europol organization to improve police
cooperation. John Alderson (1988), "Are Border Controls Necessary?" in: Roland Bieber, Renaud
Dehousse, John Pinder and Joseph H.H. Weiler (eds.), 1992: One European Market, Nomos
Verlagsgesellschaft, Baden-Baden, p. 307.
296
See Declaration on Nationality of a Member State, 1992 Treaty of Maastricht.
110
national and not by EC law: "the question whether an individual possess the nationality
of a Member State shall be settled solely by reference to the national law of the Member
State concerned"297
. Thus, non-EC nationals residing in a Member States continued to be
subject to the domestic laws of the Member States. Moreover, EC and non-EC nationals
were not treated equally. Non-EC nationals were not allowed to work and reside in
Member States other than the ones in which they received authorization. But, since there
was not to be any border control inside the EC, Alfred Tovias notes that, "immigrants
may risk working in a Member State other than the one they are allowed to work in. In
particular many legal immigrants in one EC State could be tempted to cross daily into a
neighboring country to work"298
. For this reason Member States realized that they needed
to adopt similar positions to combat "unauthorized immigration, residence and work by
nationals of third countries on the territory of Member States" (K.1)299
.
Under the third pillar Member States recognized two basic ways in which they can limit
migration into their territory. This could be done by imposing conditions of entry and
movement by nationals of third countries in the territory of a Member State, and by
combating unauthorized immigration, residence and work by nationals of third countries
in the territory of Member States. At the same time they abstained from explicitly
mentioning the way asylum policy could be conducted, despite the fact that the proposals
297
Denmark, for example, expressed its concern with regard to EU citizenship by unilaterally declaring
that, "citizenship in the Union is a political and legal concept which is entirely different from the concept of
citizenship within the meaning of the constitution of the United Kingdom of Denmark and of the Danish
legal system. Nothing in the Treaty of the European Union implies or foresees an undertaking to create a
citizenship of the Union in the sense of the citizenship of a nation state". It also argued that, "citizenship of
the Union in no way gives a national of another Member States the right to obtain Danish citizenship or any
of the rights, duties, privileges or advantageous that are inherent in Danish citizenship by virtue of
Denmark's constitutional, legal and administrative rules". See Annex 3 of the Unilateral Declarations of
Denmark to be associated to the Danish Act of ratification of the Treaty on European Union and of which
the 11 other Member States will take cognizance, Edinburgh European Council 11-12 December 1992,
Conclusions of the Presidency, Official Journal of the European Communities (OJ), C 348, 31.12.1992.
298
Alfred Tovias (1992), "The Single Market and Labour Mobility", in: Jozef M. van Brabant (ed.),
Implications of the Single European Act for Non- Member Countries, United Nations, New York, p. 107.
299
The European Commission suggested that in the light of the internal market Member States should,
"enable third country nationals to move freely around within the Union on the basis of their residence
permit which would replace any existing visa requirements". The Schengen Agreement provides such a
right, but this is only applicable to the Schengen countries. Thus, Britain, for example, which is not a
member of the Schengen Agreement does not ensure this right. See Communication from the European
Commission to the Council and the European Parliament on Immigration and Asylum Seekers Policies,
Brussels, COM (94) 23 final, 23.2.1994, p. 34.
111
made by the ministers of migration in December 1991 specified the decisions required to
be adopted. There were good reasons for preferring to avoid declaring clear provisions on
asylum. One reason was that Member States did not wish to push for significant progress
in an area that has an important impact on national security at this early stage of
cooperation among Member States, and they preferred to delay or postpone such
decisions to a later stage. Moreover, full harmonization demanded a revision of the
national legal system. Finally, when the Maastricht Treaty was signed immigration issues
appeared to be more urgent than asylum issues. Indeed, the number of applications for
asylum was still relatively small in 1991 compared to the number of applications in 1992
and in subsequent years.
Another possible explanation for the non-inclusion of asylum policy in the Treaty has to
do with the human rights aspects of asylum. In contrast to migration policy, which was
considered to be a domestic matter (and thus subject to national discretion), and Member
States were assumed to take actions in accord with their national interests, policy makers
have less flexibility on asylum policy, as they are expected to demonstrate generosity,
fulfilling their obligations of international agreements300
. From this point of view,
Member States preferred that policy decisions concerning asylum should be less
specific301
. To summarize, while the Maastricht Treaty drew much more attention than the
proposals of the Twelve Ministers in 1991, the signers needed to be more careful in their
formulation. In this respect, lack of exact procedures in the field of asylum enabled
Member States flexibility to practice their own policies without binding themselves to
specific EU criteria302
.
300
Thus the ability to make restrictions in asylum is harder than in migration issues.
301
This is especially evident in light of the new role that the EU pledged to play in the field of human
rights.
302
In a Declaration on Asylum annexed to the Treaty of Maastricht, however, (a similar declaration can be
found already in the final draft by the Dutch presidency of December 10, 1991) Member States declared
that, "the Council will consider as a matter of priority questions concerning Member States' asylum policies
with the aim of adopting them by the beginning of 1993, common action to harmonize aspects of them, in
light of the work program and timetable contained in the report of asylum drawn up at the request of the
European Council meeting in Luxembourg on 28 and 29 June 1991. Moreover, on the basis of this report
the Council will consider by the end of 1993 the possibility of applying Article K.9 to such matters". This
statement implies that asylum policy will be subject to jurisdiction of the Community institutions rather
than intergovernmental cooperation. See Declaration on Asylum, The Treaty of Maastricht.
112
3. The Decision Making Process of the Third Pillar: The Various Actors and their
Chief Responsibilities
Article C of the Treaty on European Union states the foundation of the European Union
will bring about, "a single institutional framework which shall ensure the consistency and
the continuity of the activities carried out in order to attain its objectives while respecting
and building upon the acquis communataire". Indeed, the single unity, characterized by
the four institutions (the Council, Commission, Parliament and the Court of Justice), is
what inevitably binds the first and third pillars303
. In practice, however, there has been a
considerable difference in the impact of these two pillars as a consequence of the
negotiations among Member States.
While EU institutions have been strengthened by the process of integration, in particular
with regard to first pillar issues, the third pillar has been characterized by a weak inter-
governmental arrangement, leaving major decision responsibilities to the Member States.
The inter-governmental nature of the Justice and Home Affairs (JHA) implied that the
role of Community institutions, and in particular, of the Commission and the European
Parliament, role was expected to be insignificant. Unlike the first pillar, where Member
States believed in increased cooperation, Member States did not strive for a similar form
of cooperation under the third pillar. From their point of view intensive involvement of
the Community institutions in the third pillar might eventually threaten the interest of the
individual states. They thus declined to provide significant authority to EU institutions on
most justice and home affairs issues.
3.1. The non-exclusive right of initiative of the European Commission
According to the Treaty of Rome, the European Commission has the exclusive right and
obligation to initiate and formulate policy according to the conditions provided in the
303
As Müller-Graff notes, the term "justice and home" affairs is not really clear and remains very abstract.
See Peter-Christian Müller-Graff (1994), "The Legal Bases of the Third Pillar and its Position in the
Framework of the Union Treaty" in: Joerg Monar & Roger Morgan (eds.), The Third Pillar of the
European Union. Cooperation in the fields of Justice and Home Affairs, European University Press,
Brussels, pp. 22-25.
113
Treaty. In reality, the Commission had limited power in the decision-making process
until the ratification of the TEU304
. Thanks to Maastricht the Commission's major activity
is the right of initiative, namely to make proposals for legislation to the Council. This is
especially evident in the first pillar where the Commission has an exclusive right of
initiative305
. The Council can amend the Commission's proposal but it needs unanimity to
do so, which is often difficult to achieve. Another important function of the Commission
is negotiating international agreements, especially in the field of trade which is part of the
first pillar.
Whereas the Commission played an extremely important role in the initial phase of the
legislative process establishing the first pillar this was not the case with regard to the
third pillar. Under the third pillar the Commission's ability to act was restricted. It had the
right to submit proposals to the Council only in areas of cooperation K1 to 6 only i.e.
issues covering asylum policy306
, migration, drugs, and fraud. Moreover, the Commission
did not have an exclusive right of initiative in third pillar issues but needed to share it
with the Member States. This implied that both the Commission and Member States
could initiate proposals (see Article K.3). With relation to matters dealing with judicial
cooperation, criminal, custom and police cooperation the Commission has no power to
submit proposals. These issues were to be settled by the Member States alone, as Member
States were reluctant to lose sovereignty in such highly sensitive issues. Member States
felt strongly that they did not wish to push for a progress in an area that might
304
Janne Haaland Matlary (1998), "Democratic Legitimacy and the Role of the Commission", Democracy
and the European Union, Springer, Heidelberg, p. 68.
305
In the absence of proposals from the Commission, the Council is unable to make legislation.
306
It is worth noting that during the negotiations leading to the conclusion of Treaty of Maastricht, Member
States offered various drafts to establish the basis for Member States' cooperation in the field. In the first
draft Treaty presented by the 1991 Luxembourg presidency on June 18, 1991, for example, they attempted
to squeeze asylum policy into sub article A 1 b, that is, next to issues dealing with "authorized entry,
movement and residence on the territory of the Member States by nationals of third countries (in particular
conditions of access, visa policies, asylum policies)". The Dutch Presidency Draft Treaty of September 24,
1991, however, suggested the creation of a separate provision (i.e. a new sub article) for asylum policy and
also offered the "harmonization of the formal and substantive aspects of asylum policy". Yet, a working
document of 8 November 1991 demonstrated that Member States preferred not to follow this suggestion to
proscribe the nature of their cooperation. Hence they decided not to reveal their plans about the form of
cooperation and changed this provision by deleting the reference to the harmonization of asylum policy.
See Luxembourg Presidency "Draft Treaty on the Union", June 18, 1991, Dutch Presidency Draft Treaty
"Towards European Union", September 24, 1991 and Dutch Presidency Draft Union Treaty, Working
Document, November 8, 1991.
114
compromise important nationalistic concerns, especially those linked with specific
history and tradition. Moreover, an attempt to revise and approximate the national legal
system could add further complications to the negotiation process. Finally, Member
States had already demonstrated that they were capable of working efficiently alone in
these areas.
The Commission was also deprived of the opportunity to propose legally binding
instruments (used under the first pillar) such as Regulation and Directive. Under the third
pillar, Member States created a new set of measures to deal with the issues of migration
and asylum, as joint positions and joint actions307
. The legal status of these measures,
however, was not clearly specified in the Maastricht Treaty. Certainly, these instruments
were not legally binding308
. The only legal binding instrument offered by the third pillar
was a Convention. This, however, needed to be ratified by the national parliaments, and
therefore is not often used. It is thus evident that the third pillar involved measures that
were either non-binding or difficult to implement, as they required a ratification of the
national parliaments. Thus, the Commission had little effect on the behavior of Member
States in this area, and Member States were satisfied that the Commission was not about
to limit their ability to decide on their own policies309
.
Despite the limited role of the Commission in the decision-making process on most third
pillar issues, it gained important responsibility on visa policy. The Commission could
make proposals to the Council with regard to, "the third countries whose nationals must
be in possession of a visa when crossing the external borders of the Member State".
Moreover the Maastricht Treaty also provided Member States the opportunity to transfer
some provisions, namely K.1 (1) to (6), to Community jurisdiction (see Article K.9).
Thus the Council could decide which of the decisions are to be taken by a qualified
307
According to Article K.3, the Commission is granted the right of initiative for the adoption of joint
positions, joint actions and conventions which be adopted by the Council by qualified majority. The
Commission usually adopted these instruments in Common and Foreign Security Policy (CFSP), though
they often have proven to be very vague and weak.
308
Where O'Keeffe suggests, for example, that joint action do not have legal effects, Monar is of the
opinion that the latter is a legal binding instrument. See O'Keeffe, op.cit., p. 914.
309
Ben Crum (2003), "Legislative-Executive Relations in the EU", Journal of Common Market Studies,
Vol. 41, No. 3, June, pp. 376-377.
115
majority. As a result, the Commission had the potential to play a significant role if
Member States were to shift these provisions to the First Pillar control.
3.2. The marginal role of the European Parliament (EP)
Although the European Parliament was already established under the Coal and Steel
Treaty in 1951, it played a minor role in policymaking until the second half of the 1970s.
In these years, as it acquired more power with relation to the budget, it became
increasingly more important. This is particular evident with regard to certain aspects of
the Community budget such as non-compulsory expenditure (i.e. most of Community
matters with the exception of agriculture). The Parliament gradually gained the ability to
share with the Council the responsibility to decide on the budget and also gained the
power to reject the final draft made by the latter. Further reforms to increase its position
occurred in 1979, when the EC Member States decided for the first time to organize
direct elections to the European Parliament310
.
The Maastricht Treaty also increased the capacity of the Parliament to act in other areas
of the decision-making process311
. Whereas under the Treaty of Rome the Parliament's
main competence was to provide consultation, under the new Treaty, the Parliament
became prominent in "cooperation", "co-decision" and "assent" procedures312
. The assent
310
The number of seats allocated to each country is in proportion to its size. As a result, large countries
such as Germany had a larger representation than small one such as Belgium. See also Andreas Follesdal
(1998), "Democracy and the European Union: Challenges" in: Follesdal & Koslowski (eds.), op.cit., p. 5.
311
Though, as Lewis rightly observed, the Parliament had the ability to significantly influence Community
legislation, it "failed in its bid to initiate legislation and to share the veto rights of member governments".
See David W. P. Lewis (1993), The Road to Europe. History, Institutions and Prospects of European
Integration, Peter Lang Publishing, New York, p. 184.
312
"Consultation" (single reading) means that the Parliament gives its opinion but the Council is not
obliged to take it into account and can reject it. Under "cooperation" the Council is obliged to consider the
opinion of the Parliament, but it can still reject its proposal during the cooperation procedure (two
readings). (If the Council does not agree with the opinion of the Parliament it can ask the Parliament to read
the measure again.) If the Council chooses to reject the measure after a second reading of the amendment
by the Parliament, the Council needs a unanimous vote to override the Parliament's view. It is only under
the "co-decision" procedure, (after three readings) that both the Parliament and Council share equal power.
During the third reading both Parliament and Council have the authority to prevent the adoption of a
specific proposal. The last important competence of the Parliament is the "assent" procedure which is a
binding opinion of the Parliament to which the majority in the Parliament have to agree. Parliament's assent
is required for the accession of new members to the EU, the conclusion of certain international agreements,
and for all Association agreements with third countries. Helen Wallace and William Wallace (2000)(eds.),
116
of the Parliament became necessary for the signing of international agreements. It gained
the ability to veto Association agreements with third countries,313
and could prevent the
accession of new candidate members to the EU314
.
Despite major developments in the integration process, especially after Maastricht, which
made it possible for the Parliament to gain additional power primarily in the area of the
first pillar, the Parliament remained weak with respect to issues falling under the
jurisdiction of the third pillar. The only procedure that it had available was that of
consultation, which was non-binding. Thus Article K.6 stated that, "the Presidency will
consult the European Parliament and will take into consideration its opinion". Moreover,
the Presidency and the Commission shall, "inform the European Parliament of
discussions in the areas" covered by the third pillar. The Parliament could ask questions
of the Council, and make recommendations to it, and in addition was to hold each year a
debate on the progress made in the implementation of the areas referred to in Title VI.
As Monar observed, availability of information is an important democratic principle, but
the Parliament was not in the position to guarantee that the Commission and the
Presidency would share with it all relevant information in a timely manner. Moreover,
important information such as Communications to the Parliament, "are usually vague and
evasive, and it has happened frequently that the Parliament has been left in the dark as
regards the precise legal status of texts adopted by the governments or that texts have
been forwarded with considerable delays or even not at all"315
. It is thus evident that the
Parliament was not considered to be an important actor in the decision-making process
Policy-Making in the European Union, fourth edition, Oxford University Press, p. 22.
313
One prime example is the Partnership Agreement with Russia. The Parliament threatened to delay the
ratification process because of the situation in Chechnya. The first time the Parliament used the assent
procedure was in 1987, with regard to relations with Turkey. It decided to postpone a consideration of two
protocols with Turkey due to the arrest of opposition leaders before the national election. See Richard
Corbett and Otto Schmuck (1992), "The New Procedures of the European Community after the Single
European Act. Efficiency and Legitimacy in the Light of Experience", in: Christian Engel & Wolfgang
Wessels (eds.), From Luxembourg to Maastricht. Institutional Change in the European Community after
the Single European Act, Europa Union Verlag, Bonn, p. 43.
314
The Parliament must also give its assent with regard to the enlargement process, as assent is a pre
condition for ratification.
315
See Joerg Monar (1995), "Democratic Control of Justice and Home Affairs: The European Parliament
and the National Parliaments" in: Roland Bieber and Joerg Monar (eds.), Justice and Home Affairs in the
European Union. The Development of the Third Pillar, European University Press, Brussels, p. 247.
117
with respect to issues pertaining to the third pillar. And, in general, the tendency to
increase power of the Parliament through institutional changes in the basic Treaty was
not reflected in third pillar matters. To a large extent, Title VI: provisions on cooperation
in the fields of justice and home affairs, represented an unwillingness to increase power
of the Parliament through institutional change of the basic Treaty. Before and after
Maastricht, the Parliament's major function was consultation. It could not compel the
Presidency and the Commission to change their stance on any particular issue, but was
completely dependent on their willingness to cooperate and to take into consideration its
opinion in third pillar matters.
3.3. The limited jurisdiction of the European Court of Justice (ECJ)
The main role of the Court of Justice is to ensure the interpretation and application of
Community law. An area of substantive EC law where the Court has important
jurisdiction is in the regulation of the Internal Market. Though Member States have, for
example, frequently attempted to prevent and hinder the import of goods from other
Member States by establishing so- called Non-Tariff barriers (NTBs.), the Court has
constantly condemned such protectionist practices316
. The effect of such judicial
condemnation has become much more important since the Treaty of Maastricht entered
into force. As a result of the Treaty's new procedures in the case of Member non-
compliance with the ruling of the Court, the Commission can ask the Court to impose
financial penalties317
.
But while the Maastricht Treaty increased the power of the Court, allowing the latter to
impose penalties on Member States which do not follow its rulings, the Court's role with
316
A famous case in this respect is the Judgment Cassis de Dijon of 1979, in which the Court ruled against
the decision of the German authorities with regard to the national standards pertaining to liquor, and upheld
the principle that products legally produced and marketed in a Member State (such Cassis de Dijon in
France) should have free access to the German Market (i.e. the principle of mutual recognition of food
standards). Consequently, Germany had to abandon its own standards and allow the import of liquor legally
produced in France. Nugent, op.cit., pp. 262-263.
317
In 2002, for example, the Commission recommended that financial penalties should be imposed on
France due to its refusal to allow the import of British meat into French territory after the BSE crisis. In
addition, one possible consequence of non-compliance is that the Commission can prevent future access of
Member States to structural funds.
118
regard to third pillar issues remained non-existent. The policy that finally resulted from
the Treaty was that in matters concerning migration the Court was explicitly denied
jurisdiction, since these areas were integrated in the inter-governmental pillar of the
Maastricht Treaty. Consequently, the Court of Justice was not authorized to make any
judgment in migration issues. Member States were requested under the Treaty of
Maastricht to consider the possibility of involving the Court of Justice in third pillar
issues, authorizing it to make judgment in migration and asylum issues. However, they
were not obliged to do so. Only with respect to conventions dealing explicitly with third
pillar issues would the Court have jurisdiction318
. Moreover, should Member States decide
to transfer certain areas covering asylum and immigration into the first pillar as set forth
in Article 100 of EC Treaty along with Article K.9, the Court would have jurisdiction in
these issues since they are subject to Community law.
The very limited role given to the Court of Justice in Justice and Home Affairs led to
harsh criticism regarding the nature of the third pillar and on the questionable quality of
judicial protection precisely in those areas where such protection is most needed. Some
scholars have noted, for example, that while all EU Member States are parties of the
European Convention of Human Rights (ECHR) and international treaties with regard to
the treatment of refugees, it is not clear what mechanism exists that can assure that
Member States abide by these arrangements and how these international treaties are being
observed and how they should be interpreted319
. Although Article K.5 explicitly
stipulated that, "matters referred in Article K.1 shall be dealt with in compliance with the
European Convention for the Protection of human rights and fundamental freedoms of 4
November 1950 and the Convention relating to the status of refugees of 28 July 1951",
the Commission is unable to take action against a Member State that is in breach of these
provisions320
. Thus, if a Member State violates one of the treaty provisions the
Commission cannot compel it to comply. Also, the Court of Justice was not given
318
"Such conventions may stipulate that the Court of Justice shall have jurisdiction to interpret their
provisions and to rule on any disputes regarding their application, in accordance with such arrangements as
they may lay down" Article K.3.2 (c).
319
See Nanette Neuwahl (1995), "Judicial Control in Matters of Justice and Home Affairs: What Role for
the Court of Justice", in: Bieber and Monar (eds.), op.cit., p. 305.
320
Ibid., p. 301.
119
jurisdiction to interpret the Geneva Convention, the major legal document regarding
refugee protection.
3.4. The Key Actor: The Council of Ministers
The Council of Ministers is undoubtedly the most important institution in the EU. It
enacts legislation and develops policy on the basis of EU Member States' priorities and
preferences. Though the European Parliament's opportunities to co-legislate in certain
areas have gradually increased, the Council is still the key player in the EU legislative
process. This key role is particularly apparent regarding legislation on issues falling
under the jurisdiction of the second and third pillars, since the new competence given to
the Commission and the Parliament on first pillar issues diminishes the Council's power
in this arena.
Besides the General Affairs Council, which is composed of the ministers of foreign
affairs of the Member States, the work of the Council is divided into different policy
areas. For example, issues relating to education are discussed among ministers for
education, whereas agricultural matters are discussed among those ministers responsible
for agriculture. Asylum and migration topics are addressed by the ministers of the interior
and Justice321
. Article K.3 in the Justice and Home Affairs pillar describes the Council as
the forum where Member States are given the opportunity to, "inform and consult one
another within the Council with a view to coordinating their action". Thus, ministers
exchange views in the Council and jointly determine policies according to the Member
States' preferences and "common interests". The decisions taken by the Council may be
based on a proposal made by the Member States as well as the by the Commission in
areas referred to in article K.1 (1) to (6). On the other hand, on issues related to articles
K.1 (7) to (9) (i.e. judicial and customs cooperation and policing) only Member States
321
The frequency of meetings depends on the interest and importance that Member States grant to the topic.
Ministers of finance and agriculture tend to meet more often than ministers of transportation or
environment. See Peterson John and Elizabeth Bomberg (1999), Decision-Making in the European Union,
Palagrave, New York, pp. 34-35.
120
can submit proposals for consideration by the Council. Also, the final decision on
whether to adopt a proposal is made by the Member States alone322
.
Before the Treaty of the EU, decisions in the Council required a unanimous vote. But as
this requirement allowed the legislative process to be easily blocked if one member
decide to impose a veto, it was decided already in the SEA323
to simplify the voting
procedures by also allowing various forms of voting such as qualified majority and later,
also simple majority. Nonetheless, third pillar issues, to a large extent, are still subject to
unanimity rule. This state of affairs indeed led to the portrayal of the third pillar as, "a
triumph of the nation States"324
. As O'Keeffe also points out, "the requirement of
unanimity is a severe obstacle to the adoption of measures under the third pillar"325
. With
the unanimity requirement it is often difficult to put forward proposals, resulting in
limited progress and ineffectiveness. But while Member States preferred to use this
procedure when dealing with migration and asylum issues, fearing that other forms of
cooperation might clash with their national interests, they were willing already in
Maastricht to compromise with regard to visa policy. It was explicitly stated that, starting
January 1, 1996, common visa policy would be adopted by a qualified majority (see
Article 100c). In this respect it appears that Member States found it easier to agree on this
issue and did not seem to suffer from conflicting views.
Because of the intergovernmental nature of the third pillar it was recognized that Member
States needed to coordinate their preferences in a shared forum where they could develop
future policy measures. Thus, Article K.4 in Title VI suggested the creation of a
coordination committee to, "give opinions for the attention of the Council, either at the
322
Anke Gimbel (1995), "Innen- und Justizpolitik ­ die dritte Säule der Europäischen Union", in: Werner
Weidenfeld (ed.), Maastricht in der Analyse. Strategien und Optionen für Europa, Verlag Bertelsmann
Stiftung, Gütersloh, pp. 78-79.
323
The SEA established derogation from the principle of unanimity for Directives and allowed for a
qualified majority. A qualified majority vote applies to most of the decisions taken under the first pillar,
such as trade policy. Unanimity, however, still applies to Second and Third Pillar issues.
324
See Roger Morgan (1994), "The Third Pillar: An Introduction", in: Joerg Monar & Roger Morgan
(eds.), The Third Pillar of the European Union. Cooperation in the Fields of justice and Home Affairs,
European University Press, Brussels, p. 16.
325
David O'Keeffe (1995), "Recasting the Third Pillar", Common Market Law Review, 32, p. 898.
121
Council's request or on its own initiative". The K.4 Committee was also to help prepare
the Council for discussions, "in areas refereed in Article K.1 and in the conditions laid
down in Article 100d of the treaty establishing the European Community in the areas
refereed to in Article 100c of that Treaty". One of the functions of the K.4 Committee
was to, "avoid a duplication of work and if necessary to expand certain tasks or relocate
them"326
.
As for the specific working methods and the structure of the coordinating committee; a
proposal was made in the Report to the European Council of Edinburgh from the
Coordinators' Group on Free Movement of Persons on December 3, 1992, where it was
recommended that, "in view of the very wide range of subjects covered in Title VI" the
work of the Committee would be organized into three main sectors: 1) immigration,
asylum, security and law enforcement; 2) police and customs cooperation; and 3) judicial
matters327
. In the Conclusions of the Belgium Presidency of 29 October 1993, the activity
of the Committee was further discussed, stressing its importance in preparing the
Council's meetings. It was suggested that the K.4 Committee, "will have an essential
function to fulfill: in addition to its general role in coordinating the various bodies
subordinate to it, the Committee will endeavor when preparing for the Council, to resolve
as far as possible the substantive problems raised by the various dossiers"328
.
3.5. The European Council: Giving the Impetus
The European Council created in 1974 is the most prestigious forum of the EU329
. It
consists of heads of state and /or government and the President of the Commission, and
326
See Michael Niemeier (1995), "The K.4 Committee and its Position in the Decision Making Process",
in: Bieber and Monar (eds.), Justice and Home Affairs in the European Union. The Development of the
Third Pillar, European University Press, Brussels, p, 326.
327
See Report to the European Council in Edinburgh from the Coordinators' Group on Free Movement of
Persons, December 3, 1992, CIRC 3687/1/92, Rev 1, Confidential.
328
See Brussels European Council, October 29, 1993.
329
It was Giscard d'Estaing who took the initiative to bring the leaders of the Member States together to
informally discuss important topics. The main catalyst in this respect was the energy crisis of 1973. The
French president was of the opinion that important matters are best discussed at the highest level.
Originally, these meetings took place outside the formal framework of the institutional Treaties, and only
after the Single European Act of 1986 were they integrated into the formal institutional framework. (Until
122
meets at least every six months in the country holding the presidency to discuss and
shape the further progress of EU policy330
. The main task of the European Council, as
described by the Treaty of the European Union is to "provide the Union with the
necessary impetus for its development and shall define the general political guidelines
thereof". The issues to be discussed during its meetings are chosen based on the interests
of the Member States, and are often linked to major issues currently on the political
agenda of the EU. For example, the political and economic conditions necessary for EU
membership were established at its famous 1993 Copenhagen meeting. Other major
issues, such as security, were also discussed by the European Council331
. Increasingly,
migration and asylum have become "popular topics" at the European Council meetings.
The European Councils of Tampere (1999), Seville (2002) and Thessaloniki (2003) have
largely focused on these issues. As Member States became increasingly concerned with
the question of migration the Council strongly recommended on these occasions that
suitable measures be taken to deal efficiently with the new waves of migration. For
example, suggestions were made on how to reduce the influx of illegal migrants. The
European Council as such is not a legislative body but, rather, a political forum, and thus
its conclusions are not legally binding. Nevertheless, its conclusions are extremely
valuable as they represent the basis for setting future policy. Based on the conclusions of
the Council, Member States adopt a new set of measures after each meeting.
1987 the Council was an informal body lacking a legal recognition. Following the ratification of the Single
European Act in 1986, however, it became a formal body and was later integrated into the Treaty.) Some
major achievements of the European Council, were the decision to organize direct elections to the
European Parliament and the compromise on the controversial British contribution to the Community
budget.
330
According to Article D of the Treaty of Maastricht the Council is supposed to meet, "at least twice a
year". In recent years the country, which holds the presidency, tends to organize two meetings of the
Council. In 2001 the Belgium Presidency, for example, organized a meeting in Ghent and then in Brussels.
Under the Spanish Presidency in 2002, one Council meeting was held in Barcelona and the other in Seville.
331
The terrorist attacks of September 11, 2001 drew much attention in the subsequent meeting in Laeken in
December 2001. The Council called for an adequate response to tackle more effectively the new security
threat. See the 2001 Laeken European Council.