Memorandum by the Centre for European
Policy Studies (CEPS)
It is both an honour and a pleasure to submit
comments to this inquiry into the Commission's Communication on
the legislative and work programme 2007. It is vital that the
work of the Commission is subject to oversight by the European
Parliament and national parliaments in order to ensure proper
democratic participation in the priorities and legislative programme
of the Commission. In our view, the inquiries carried out by the
House of Lords Committee on these issues are of fundamental importance
to the operation of the EU. We would encourage other national
parliaments to take the same active interest in carrying out scrutiny
of activity by the Commission and other EU level actors to ensure
that democratic voices from across the Union are heard.
In these submissions we will address six areas
of the Work Programme 2007 which are related to our work in the
area of freedom, security and justice (1) the "big agendas",
(2) strategic objectives regarding security, (3) the EU's voice
in the world, (4) managing migration flows, (5) managing the acquis,
(6) connecting Europe to its citizens. We will not comment on
proposals in field beyond this sphere except to the extent that
they have consequences for the AFSJ.
THE BIG
AGENDAS: GLOBALIZATION
AND THE
CITIZEN'S
AGENDA
1. There are two important strategic policy
agendas set out in the Commission's Legislative and Work Programme:
the EU's response and participation in globalization and the citizen's
agenda. We would take this opportunity to make some preliminary
comments on how action in the AFSJ should complement and not hinder
these two objectives. First, regarding globalization, if we take
this term to mean the integration of economies at the international
level in pursuit of prosperity and development, regard should
be had to how the EU has successfully managed the integration
of economies. Concerning the Area of Freedom, Security and Justice
(AFSJ), key to the success of the EU's internal market has been
the steadfast commitment to free movement of goods, persons, services
and capital. The engagement of people in the success of economic
development and market integration was recognized from the start
of the European integration project and the principle of free
movement of persons was maintained, not without resistance from
some interior ministries, as a core objective until it has become
a reality. It is not realistic to seek the benefits of globalization
if people are excluded from the overall European project. If people
cannot travel to find new markets for their goods or challenging
job opportunities, provide services or source their product needs,
globalization cannot and will not fully benefit the society. People
make globalization happen whether they are entrepreneurs, employees,
students, tourists or family members. Without contact between
people, economic activities will not grow across borders. Thus
in order to participate in and benefit from globalization, the
EU must pursue policies and regulations regarding border management,
economic migration and access to the EU for third country nationals
which enhance rather than hinder movement of persons. Closed EU
borders for persons sit uneasily with globalization objective
seeking to maximize the benefits of movement of goods, services
and capital. If the citizen's agenda is aimed at providing employment
and stability within the Union through participation in globalization
creating new markets for goods and services, citizens must be
able to move freely to third countries to seek markets and not
be hindered by reciprocal restrictions in third countries which
governments often impose because the EU regulatory framework excludes
from or create substantial obstacles for their nationals to have
access to the EU territory.
2. For the effective delivery of "a
citizen's agenda" "more Europe" through the expansion
of "the Community method" to all the AFSJ areas is highly
desirable. Without a substantial change in the current institutional
mechanisms characterizing European cooperation within the context
of an AFSJ and the abolition of the current pillar structure,
the AFSJ is not going to succeed in the eye of the people. The
European project in this dimension needs to move from the deficiencies
inherent to the intergovernmental method of European cooperation,
inside or outside the legal structures provided by the Third Pillar
(Treaty on European Union) to a rooted Community method. This
will be the only way to duly offer a solid democratic framing
of an European Space where the Liberty, Security and Justice of
the individual are fully guaranteed). [3]
STRATEGIC OBJECTIVES
AS REGARDS
SECURITY
3. Based on the foundations provided by
the Amsterdam Treaty, the Tampere European Council of October
1999 gave political direction for the gradual development of an
"Area of Freedom, Security and Justice" (AFSJ). [4]"The
Tampere Programme" identified the creation of an AFSJ as
a fundamental priority for the future of the European Union (EU)
and set out the objectives for its first five years ending in
2004. "The Hague Programme" agreed by the Council on
November 2004 adopted a new five year policy agenda in these areas.
[5]So
far, the level of policy convergence[6]
reached in these dimensions of "Freedom, Security and Justice".[7]
In general terms, the expected level of harmonization, or Europeanization,
in some fields has not been successfully reached. Further, an
in-depth examination of the provisions included in the EU's legislative
instruments reveals surprisingly low minimum standards which may
endanger international and European human rights commitments.
They also offer a wide discretion for Member States to apply national
law and substantial exceptions to the common rules which both
permit wide practical divergence and dispersion in the national
arena. [8]
4. A major deficit of the Hague Programme
is the way in which "freedom" and "security"
are presented as antithetical values, and therefore requiring
a balanced approach between the two. This "balance metaphor"
mainly consists of the need to find the right equilibrium between
freedom and security in the EU. In fact, its predecessor, the
Tampere Programme, rejected this understanding of the relationship
between freedom and security by advocating a "shared commitment
to freedom based on human rights, democratic institutions and
the rule of law" as the starting paradigm. [9]Securing
the rule of law needs to reside at the heart of the European integration
project. The Hague Programme appears to marginalize the protection
of fundamental rights and freedoms (liberty), the principle of
equality and of democratic accountability and judicial control.
The overall priority which guides the Programme remains clear:
strengthening security understood as coercion. [10]The
direct result is that the EU policy and regulatory framework do
not offer the necessary mechanisms and venues for the creation
of an AFSJ based on the liberty and equality.
THE EU'S
VOICE IN
THE WORLD
5. One of the key objectives of the Work
Programme is to promote the voice of the EU in the world to match
its economic weight. This is a very laudable objective, but again
we would note that policies which have been adopted in the AFSJ
field are already having a negative impact on the ability of the
world to hear the EU's voice. The occasions are innumerable when,
over the past twelve months, we have spoken with colleagues organizing
conferences on economic and other relevant policy issues both
at the level of experts, decision makers, academics and researchers
who have expressed extreme frustration at the refusal of various
EU consulates to issue visas to experts, academics, policy makers,
representatives of NGOs and others so that they could come to
the EU to participate in discussions. Among the most irritating
of results is when an EU consulate appears, deliberately, to delay
issuing the visa until the conference or other event has already
taken place thus rendering impossible the arrival of the guest
to participate while at the same time resisting the accusation
of having refused the visa. The EU's voice cannot be heard under
such circumstances except by EU citizens and nationals of countries
on the EU visa white list. But most of the new markets for the
EU and the potential new sources of energy are in countries on
the black visa list. If their nationals are negatively treated
by the current visa processing system of some EU Member States
and effectively prevented (in practice because of delayed visas
rather than in law by refused visas) from coming to the EU to
participate in discussions the EU's voice will not be heard, or
if it is then by people who are already ill-disposed to the EU.
A radical shake up of the EU visa black list would be the most
desirable development to remove countries from this list. Alternatively
or additionally, a massive extension of visa exemption schemes
for researchers, academics, policy makers and NGO representatives
irrespective of their country of nationality would be most desirable
and highly efficient. The extension of the visa facilitation agreements
already in place with Russia and Moldova are also a weaker but
still desirable option.
MANAGING MIGRATION
FLOWS
6. One of the objectives of the work programme
is better to manage migration flows. It proposes the development
of schemes for economic immigrants with particular focus on highly
skilled migrants. These are laudable aims, but it will be critical
to ensure that, in their pursuit, other policy objectives are
not frustrated. The first fact to be recognised is that the more
complex economic migration laws become (and there has been a tendency
in many Member States to adopt new rules on economic migration
with a bewildering frequency) the more people will pass from regularity
to irregularity. The more documents which must be provided, the
more quickly the rules are changed, the fewer people will be able
to provide everything required or to react within the limited
time scales and so their status on the territory passes from legal
to illegal without any substantive change in their activities
or lives. Among the more pernicious of policies which have the
effect of transforming a person lawfully present into an "illegal
immigrant" is the prohibition on switching from one immigration
category to another without leaving the country, going back to
the country of origin and obtaining a visa for the new purpose
in the country of origin. So, for instance, where a foreign student
marries an EU permanent resident directive 86/2003 requires that
the student return to the country of origin and wait, what may
be years, to obtain a visa to return as a spouse. If the student
just continues to remain in the state as a student, he or she
may later have obstacles placed in the way of changing status
because of the delay in applying. These kinds of rules foster
irregularity and impede regularity. Any new rules at the EU level
in this area must avoid such pitfalls. Further, a "secure
legal status" needs to be granted not only to those immigrant
workers labeled by the national law at hand as "highly skilled"
or "talented". The establishment of an European legal
framework offering juridical protection to those third country
nationals falling within the category of high-skilled economic
immigrants involves the emergence of discrimination towards all
"the Others" not falling within this privileged status.
Legal security must be offered also to all the rest of immigrant
workers in order to avoid exploitation, discrimination and insecurity
in the dimension of labour immigration in the EU. In addition,
the Commission proposes legislation on penalties for employers
of person irregularly on the territory. In light of the above
comments, it may not be sensible to introduce penalties in this
field before there is clarity for employers on legality of residence
and employment of third country nationals in the EU.
7. As highlighted by the Policy Plan on
Legal Migration COM(2005)669 of December 2005, The Commission
needs to promote the establishment of a European framework providing
a transnational European protection of immigrants' rights who
are in legal employment and who already have been admitted to
the EU territory. Additionally, the rights and liberties contained
in the Charter of Fundamental Rights and Freedoms need to be applied
fully to all persons legally residing inside the EU's territory.
Residence, and not nationality, is the linking factor for having
access to the EU's set of freedoms.
8. We have noted with increasing unease
the lack of support which the UNHCR have given to EU measures
on asylum. Clearly there is something wrong with the Common European
Asylum System (CEAS) if the international institution created
to be the guardian of the Refugee Convention finds EU measures
inadequate to fulfil the minimum obligations of the Member States
to the protection of refugees. In our opinion the EU institutions:
Commission, Council and the European Parliament should defer to
UNHCR regarding the correct interpretation of the Geneva Convention
and ensure that all legislation adopted at the EU level complies
with the internationally accepted interpretation of Member States
obligations top those fleeing persecution. It is a very bad example
to the rest of the world that 27 of the world's richest and most
powerful countries refuse to comply with the internationally negotiated
and accepted standards of refugee protection (in the negotiation
of which they, themselves have been highly present and vocal).
The second phase of the CEAS should provide an opportunity to
correct this error. [11]
MANAGING THE
EU ACQUIS
9. The Commission states that it is preparing
an announcement on better regulation to ensure the correct application
of EC law in the Member States. We would take this opportunity
to note that while the application of EC law is of great importance,
there is an even more pressing problem about application of EU
measures adopted in the Third Pillar. The European Arrest Warrant
provides only one particularly stark example where one Member
State is now completely outside the system (Poland as a result
of the decision of its constitutional court at the beginning of
the year and the failure of the government to take the measures
proposed to resolve the problem) and highly problematic implementation
in a number of other Member States which deficiencies have been
charted by the Commission. The Commission's lack of power to ensure
correct implementation of Third Pillar measures needs to be resolved
quickly before the whole field falls into disrepute as an area
of non-approximation in which any practices preferred at the national
level, irrespective of how problematic for the coherence of the
EU measure adopted, are tolerated.
CONNECTING EUROPE
TO ITS
CITIZENS
10. The Commission states that one of its
fundamental objectives is to make EU policies understandable and
relevant to the citizens. In particular it wants to foster dialogue
and debate with citizens, particularly including women and young
people. Communication is one of the strategic objectives. We consider
this to be a most laudable objective—communication with
citizens is central to the legitimacy of the EU project. We are
concerned however, about the impact of some developments in the
AFSJ on fostering this communication. A battery of measures have
been announced in the First and Third Pillars, both related to
the Schengen Information System and otherwise, which are aimed
at a substantial increase is surveillance of the citizen, his
or her movements, statements, actions and activities. At the same
time, the protection of the citizen from wrongful use of his or
her personal data has lagged very substantially behind—for
instance the continuing blockage of the Third Pillar Framework
Decision on data protection. Without confidence regarding how
data and communication will be used, it is useless to ask the
citizen to engage in dialogue with the EU. Too often in the recent
history of many Member States, criticism of state policies or
actions has been passed to security services and resulted in the
blighting of the lives of citizens. If the Commission wants to
communicate with the citizen and for the citizen honestly to engage
with EU law and policy, it must convince the citizen that his
or her data, opinions, activities and positions are protected
against improper use. A reassessment of all EU policies on creation,
maintenance, access, distribution, correction and deletion of
personal data is urgently needed with priority given to the pressing
need to foster confidence among citizen that their data are well
and fully protected and are not being stored and passed to intelligence
services and the like for subsequent use against the citizens
on the basis of the expression of their opinions and views.
Prof Elspeth Guild
Senior Associate Research Fellow, CEPS
Professor of European Migration Law (Centre for Migration
Law, Radboud University Nijmegen)
5 January 2007
3 S Carrera and E Guild, The Hague Programme and the
EU's Agenda on Freedom, Security and Justice: Delivering Results
for Europe's Citizens?? CEPS Commentary, 10 July 2006, retrievable
from www.ceps.be. Back
4
Presidency Conclusions of the Tampere European Council, 15¸16
October 1999, SN 200/99, Brussels. Back
5
European Council, The Hague Programme: Strengthening Freedom,
Security and Justice in the European Union, 2005/C53/01, OJ C53/1,
3.3.2005. Back
6
By policy convergence we mean not only the degree of harmonisation
or level of "Europeanisation" based on the number of
legal instruments that have been adopted at the EU level, but
also to the discretion left to member states in the application
of a wide range of provisions incorporated in the EU laws examined. Back
7
T Balzacq and S. Carrera (2006), Security versus Freedom? A Challenge
for Europe's Future, Ashgate: Hampshire, 2006. Back
8
T Balzacq and S Carrera (2005), Migration, Borders and Asylum:
Trends and Vulnerabilities in the EU, Centre for European Policy
Studies: CEPS, Brussels, 2005. Back
9
CHALLENGE, A Response to the Hague Programme: Protecting the Rule
of Law and Fundamental Rights in the Next Five Years of an EU
Area of Freedom, Security and Justice, retrievable from www.libertysecurity.org. Back
10
D Bigo, Liberty, Whose Liberty? The Hague Programme and the Concept
of Freedom, in T Balzacq and S Carrera, Security versus Freedom:
A Challenge for Europe's Future?, Ashgate: Hampshire, 2006. Back
11
See M Garlick, Asylum Legislation in the European Community and
the 1951 Convention: Key Concerns regarding Asylum Instruments
Adopted in the "First Phase" of Harmonization, in T
Balzacq and S Carrera, Security versus Freedom: A Challenge for
Europe's Future?, Ashgate: Hampshire, 2006. Back
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