Doc. 9979 rev.
15 October 2003
Consequences of European Union enlargement for freedom of movement between Council of Europe member states
Committee on Legal Affairs and Human Rights
Rapporteur: Mr Vitaliy Shybko, Ukraine, Socialist Group
There is a widespread fear that after May 2004, following the current round of European Union (EU) enlargement, Europe will be administratively divided in two as a result of the expansion of the Schengen visa system. Should this happen, it would create an excessive impediment to the free movement of persons between Council of Europe member states, with a range of possible adverse consequences capable in turn of generating national and international tensions. As an organisation based on common unifying values whose mission is to encourage and protect the development of harmony and progress across the continent, the Council of Europe has always been and remains concerned to avoid such eventualities. Accordingly, the Parliamentary Assembly concludes that the goal should be the abolition of the Schengen visa requirement for citizens of all Council of Europe member states.
Whilst EU integration in the fields of migration policy and police and judicial co-operation may have developed further than that between the wider circle of Council of Europe member states, nevertheless the Council of Europe’s own extensive system of treaties in these fields – which in part form the basis of the Schengen system itself – represents a wider, second tier area of freedom, security and justice stretching across Greater Europe. The Assembly believes that a member state’s being party to these instruments justifies the immediate establishment of a presumption exempting that state’s citizens from the Schengen visa requirement.
The Assembly then recommends to member states, the Committee of Ministers and the EU that they take a series of legal and policy measures intended to enhance collaboration in the fields of migration policy and police and judicial co-operation. It also recommends to relevant member States and the EU certain concrete steps intended to make the practical operation of the Schengen system itself as efficient and accessible as possible.
I. Draft recommendation
1. There is a widespread fear that after May 2004, following the current round of European Union (EU) enlargement, Europe will be administratively divided in two as a result of the expansion of the Schengen visa system. Such an eventuality would create an excessive impediment to the free movement of persons between Council of Europe member states, with consequences relevant to a number of distinct issues, including tourist travel, business travel, diplomatic travel, cross-border small traffic in goods, international labour migration and communal and cultural links. These may in turn result in national and international tensions based on nationality and ethnicity.
2. As stated in its Statute, the Council of Europe is based on a common heritage of spiritual and moral values which unite the peoples of its member states and which are the true source of the individual freedom, political liberty and rule of law which underlie European democracy. A closer unity between European states is needed for the maintenance and further realisation of these ideals and in the interests of social and economic progress. Free movement of persons to the greatest possible extent throughout Europe is essential to this project and, indeed, to national and individual adherence to our common principles. International co-operation under the auspices of both the Council of Europe and the European Union has helped to establish bonds of understanding, trust and friendship across the continent.
3. These principles, along with the significance of the uniting mission of the Council of Europe, remain vital and relevant today. In this respect, the Parliamentary Assembly recalls its Recommendations 879 (1979) on the movement of persons between the member states of the Council of Europe, 990 (1984) on clandestine migration in Europe, 1014 (1985) on the entry visas required of Turkish nationals by certain Council of Europe member states, 1373 (1998) on freedom of movement and the issue of visas to the members of the Parliamentary Assembly of the Council of Europe and 1579 (2002) on the enlargement of the European Union and the Kaliningrad Region. The Assembly is glad to note the recent agreement between Lithuania, the Russian Federation and the European Union on the Kaliningrad Region. It also takes note of recent documents and statements of the European Council, the Council of the European Union and the European Commission which recognise these principles and agree on the importance of avoiding the creation of new dividing lines.
4. The Schengen system is intended to establish free movement of persons within a multinational territory (the Schengen area) lacking internal borders. The public order and security concerns arising from this are addressed by two sets of measures: the first relating to visa policy and external border control, intended to prevent individuals who represent a threat to public order or security from entering the Schengen area; the second concerning police and security co-operation, designed to enhance national criminal justice systems’ ability to operate between jurisdictions within the borderless Schengen area so as to improve their responsiveness to all forms of trans- and international criminality.
5. The Assembly notes that the Council of Europe has since the early years of its existence also been active in pursuing these same aims. Regarding free movement of persons, it recalls in particular the 1955 European Convention on Establishment (ETS 19) and the 1957 European Agreement on Regulations Governing the Movement of Persons between Member States of the Council of Europe (ETS 25), along with the European Convention on the Legal Status of Migrant Workers (ETS 93) and the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities (ETS 106). With respect to criminal justice and public order, it recalls in particular the 1957 European Convention on Extradition (ETS 24) and its Additional Protocols (ETS 86 and 98), the 1959 European Convention on Mutual Assistance in Criminal Matters (ETS 30) and its Additional Protocols (ETS 99 and 182), the 1970 European Convention on the International Validity of Criminal Judgments (ETS 70), the 1977 European Convention on the Suppression of Terrorism (ETS 90) and its amending Protocol (ETS 190) and the 1999 Criminal Law Convention on Corruption (ETS 173) and Civil Law Convention on Corruption (ETS 174), along with the Convention on the Transfer of Sentenced Persons (ETS 112) and the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds of Crime (ETS 141); it is significant that several of these instruments form the basis of the Schengen system’s own mechanisms. It also takes note of the Group of States Against Corruption (GRECO).
6. Whilst the European Union has achieved a level of integration exceeding that of the Council of Europe, nevertheless the Assembly believes that the combination of the Council of Europe’s treaties in the fields of free movement of persons and of police and judicial co-operation bears comparison to the Schengen system not only in purpose but also in potential effectiveness. Wider ratification, along with appropriate co-ordination and, if necessary, amendment of these treaties could lead to the development of a framework allowing greater freedom of movement throughout Greater Europe: less restricted than within the Schengen area, but sufficiently enhanced as to reflect the unity and cohesive integrity of Council of Europe member states.
7. As the only democratic body representative of citizens from the length and breadth of Europe, the Assembly states its firm opposition to any measures which might act to divide the peoples and states of a continent which has only recently achieved a historic level of political, social, economic and cultural unity and harmony. Accordingly, it encourages every effort to be made to avoid this prospect and proposes the following recommendations.
8. The Assembly recommends that member states:
i. insofar as they have not already done so, ratify and implement without delay the conventions, agreements and other treaties listed in paragraph 5 above, along with becoming members of the GRECO;
ii. in relation to those member states which are also members of the EU (including those which may accede in May 2004), adopt liberal measures with respect to citizens of other Council of Europe member states in those areas of immigration policy not subject to EU jurisdiction;
iii. in relation to those member states which are not members of the EU, ensure that they take action to facilitate positive developments in areas of reciprocity, such as adoption of minimal visa fees and conclusion of bilateral and multilateral readmission agreements.
9. The Assembly also recommends that states party to the 1990 Schengen Convention:
i. expand their consular services in other Council of Europe member states so as to ensure that visas are issued quickly, efficiently and conveniently;
ii. improve the number of and facilities at border crossings with non-EU member neighbouring states.
10. In addition, the Assembly recommends that the European Union:
i. extend, at the earliest opportunity; the list of third countries whose nationals are exempt from the requirement to be in possession of a visa when crossing the external borders of the Schengen area to include all Council of Europe member states which are not also members of the EU and meanwhile:
ii. establish a presumption that citizens of states party to the Council of Europe treaties mentioned in the 1990 Schengen Convention (ETS 24, 30 and 112, plus their relevant protocols) do not require visas for entry into or circulation within the Schengen area, that presumption being strengthened in relation to a state’s also being party to other Council of Europe treaties in the field of public order and security (including ETS 70, 90, 141, 173 and 174 and their relevant protocols);
iii. for those member states not able to benefit from this presumption, make visa requirements and procedures more rapid and flexible, inter alia by:
a. encouraging the practice of issuing multiple-entry visas of five-year duration, particularly to residents of border regions and those engaged in legitimate small cross-border traffic;
b. maintaining the level of visa fees at the lowest level possible, and if possible free of charge;
c. requesting documents in support of visa applications and attendance for personal interviews only in cases of necessity;
d. ensuring that examination of documents and the conduct of personal interviews are fully respectful of individual dignity and privacy;
e. allowing visa applications to be made by post or by electronic means, insofar as is allowed by the need to verify documents’ authenticity or conduct personal interviews;
f. ensuring that refusal of admission at borders of those with valid visas is an exceptional measure taken only when justified by objectively determined reasons;
g. establishing special provisions for political and diplomatic travel by citizens of those Council of Europe member states which are not also parties to the 1990 Schengen Convention, such as by exempting holders of diplomatic passports and those on certified official missions from visa requirements;
h. concluding bilateral readmission agreements with those Council of Europe member states which are not also members of the EU and in relation to which such agreements do not already exist;
i. providing financial and material assistance to new EU-member states, to ensure that they are able to respond promptly and efficiently to visa applications from citizens of other Council of Europe member states;
iv. assist those countries which will be neighbours of the enlarged EU in reinforcing their efforts to prevent illegal migration, in particular trafficking in persons;
v. consider ratifying the Council of Europe’s treaties relevant to those areas of freedom of movement, criminal justice and public order for which it has supranational jurisdiction, and join the GRECO; and
vi. within this pan-European legal framework, develop immigration policies which allow the greatest possible degree of freedom of movement of persons throughout Europe.
11. Finally, the Assembly recommends that the Committee of Ministers:
i. undertake a comprehensive study – involving the committees established under relevant Council of Europe treaties, representatives of the European Union and the Assembly – into how existing Council of Europe treaties concerning free movement of persons, criminal justice and public order may be more widely ratified, implemented, co-ordinated and (if necessary) amended, so as to establish a comprehensive legal framework within which the greatest possible degree of freedom of movement of persons may be established throughout Europe;
ii. establish principles for the standardisation of travel documents of Council of Europe member states, so as to provide safeguards against forgery and fraudulent use and thus facilitate liberalisation of visa regimes and immigration policies.
II. Explanatory memorandum
by Mr Shybko, Rapporteur
1. On 8 October 2001 a motion, Doc. 9258, was presented to the Assembly, entitled “Eliminating excessively restrictive practices for issuing visas to citizens of east European states.” This document noted “with concern the increasingly restrictive procedures for issuing visas to citizens of east European countries, especially the countries of the former Soviet Union. Pressure exerted by the European Union on countries that are candidates for accession to tighten visa rules further exacerbates the issue.” It recommended various measures, on the basis that “the practice of issuing visas to citizens of the Council of Europe member states of eastern Europe should be radically improved and made non-discriminatory.”
2. Subsequently, Document 9643 on “Building Europe without dividing lines: Movement of persons between Council of Europe member states” was also referred to the Committee on Legal Affairs and Human Rights, to be merged with the previous document. The later motion referred specifically to the 1957 European Agreement on Regulations Governing the Movement of Persons between Member States of the Council of Europe (see further below), proposing that it either be replaced or amended so as to respond adequately to current requirements, and that a meeting be convened to discuss obtaining new signatures, as well as the possibility of amendment.
3. Initial research into the subject indicated that, whilst lengthy and complicated administrative visa-issuing practices are a problem in themselves – and for individual citizens, the most immediate and appreciable one, a fact which should not be forgotten – they are in fact a symptom of a broader situation, namely European Union (EU) enlargement and the consequential expansion of the Schengen visa system. Accordingly, at its meeting of 16 December 2002, the Committee on Legal Affairs and Human Rights authorised that the title be changed to the above. To summarise, the Rapporteur has interpreted his mandate to include two central issues: application and development of the Schengen system, notably as regards new EU member States; and application and development of relevant Council of Europe measures, in particular the 1957 European Agreement.
4. From 1989 onwards, central and eastern Europe had opened up with freedom of movement unknown in the preceding decades since World War II. This development extended beyond those states which would soon be applying for membership of the EU, giving citizens of ex-Soviet states such as Russia, Belarus, Moldova and Ukraine the opportunity of relatively free travel within central and eastern Europe. By the end of 2002, political changes in central and eastern Europe meant that virtually all of the continent’s states were members of the Council of Europe: ten of these, stretching from Slovenia on the Adriatic to Estonia on the Baltic, were on the verge of accession to EU membership; a further two were close behind; and the prospects of Turkey, which was given applicant status in 1999, were the subject of intense debate.
5. The Schengen Agreement was signed on 14 June 1985 by Germany, France and the Benelux countries (Belgium, the Netherlands and Luxembourg), with the aim of gradually abolishing controls at common borders. During attempts at implementation of this agreement, however, it soon became clear that further measures were needed to co-ordinate related policies, notably by co-operation in the fields of security, police, justice, asylum and visas, and with common access to data on applications for asylum and visas, etc. A second agreement, the Convention implementing the Schengen Agreement, was therefore signed on 19 June 1990. This came into effect from 26 March 1995 for the original signatory countries plus Spain and Portugal.
6. By the Nice Treaty of 1999, the Schengen ‘acquis’ (the corpus of rules and regulations which had grown up around the Agreement and Convention) were incorporated into the general EU acquis. By now all EU member states, with the exception of the United Kingdom and Ireland, were included in the system. There was further expansion in 2001 to the countries of the Nordic Passport Union, which included non-EU members Norway and Iceland. As part of the EU acquis,
the Schengen system and all its associated rules were mandatorily to be incorporated upon accession into the national laws of candidate states. Work on implementation of the system was thus part and parcel of the current round of accession, despite the fact that citizens of the candidate states will not immediately benefit from free movement into or between the current EU-Schengen states upon accession.
7. On 1 May 2004, the EU will enter a new and historic phase. Ten countries – Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia – will join the organisation. On accession, these states will adopt the internal market rules and thus (in time) obtain the full benefit of the ‘four freedoms’ or free movement of people, capital, goods and services. The lack of controls on internal borders between Schengen states is compensated for by stricter control on external borders and by the imposition of various preventative measures. Increased external controls, however, make it more difficult for citizens of most non-EU/ Schengen member states to gain entry into the Schengen area.
8. There is a fear that after May 2004, Europe will be divided into two parts, first, the EU, and second, the countries of eastern and south-eastern Europe. This will cause serious disruption to traditional cross-border links, both social and cultural, and economic. This in turn may cause tensions based on nationality and ethnicity. The phenomenon has variously been described as the “new iron curtain”, the “paper curtain” and the “new wall of Schengen”.
9. At this point, it should be noted that there is no general right recognised in international law for free entry into or transit across the territory of states of which an individual is not a citizen. Accordingly, paragraph one of Article 2 of Protocol No. 4 to the European Convention on Human Rights guarantees liberty of movement and freedom to choose residence only to those lawfully within a state; and paragraph two, which enshrines the right to leave any country (including one’s own), does not override the right of countries of intended destination to impose immigration controls consistent with international law. Nevertheless, as various documents and instruments of both the Council of Europe and the European Union have emphasised on numerous occasions, the freest possible movement of persons is essential to maintain and Europe’s common fundamental principles and encouragement its harmonious development.
C. The 1990 Convention applying the Schengen agreement
10. As mentioned above, the 1990 Schengen Convention contains the foundations of the current system, although the application of these principles is influenced and developed by the rules propagated by the Council of the European Union (which, since the Treaty of Amsterdam came into force, has supplanted the Executive Committee). The stated intention of the Contracting Parties is of “bringing about the abolition of checks at their common borders on the movement of persons and facilitating the transport and movement of goods.” Thus under Article 2, “internal borders may be crossed at any point without any checks on persons being carried out”; whereas Article 3 states that “External borders may in principle be crossed only at border crossing points during the fixed opening hours.” Further relevant measures include the following.
11. Article 5 establishes common rules for visits of less than three months by non-nationals of EU member States (”aliens”). Such visitors require a valid document (as defined by the Executive Committee/ Council), and a valid visa if required, along with, if applicable, documents substantiating the purpose and conditions of the visit and proof of sufficient means of support. Furthermore they must not have been reported as a “person not to be admitted entry” and not be considered a threat to public policy, national security or the international relations of any of the Contracting Parties. These conditions may be derogated from on humanitarian grounds, in the national interest or because of international obligations, in which case entry is limited to the territory of the state concerned. The Rapporteur considers that at least in the case of citizens of Council of Europe member States, the grounds for refusing to issue a visa should be interpreted restrictively, or a presumption exist that the grounds do not apply.
12. Article 6 sets out uniform principles for checks at external borders. These include verification of travel documents and of all other conditions on entry, residence, work and exit and checks to detect and prevent threats to national security and public policy, and extend to vehicles and possessions. All persons must be checked at least once to establish their identity, on the basis of travel documents, and aliens must be subjected to the full range of checks. In addition, aliens are subject to exit checks relating to threats to national security and public policy.
13. Article 9 provides for a common policy on uniform visa arrangements relevant to the three month visits foreseen in Article 5. This may be either a travel visa, valid for one or more entries, for a maximum stay of three months in the six months following first entry, or a transit visa allowing up to five days’ travel through Contracting Parties’ territories to a third state’s on one or two or, exceptionally, several occasions. The uniform visa is to be issued by diplomatic or consular authorities. The responsible state is that of the intended principle destination or, if not determined, that of first entry. The visa is effective for all Contracting Parties for whom the individual’s travel document is valid.
14. Article 18 states that visas for visits of longer than three months are to be issued according to national legislation. Such visas allow transit through other Contracting Parties, unless the individual does not have a valid travel document, has been reported as a person not to be permitted entry, or is considered a threat to public policy, national security or the international relations of any Contracting Party, or is on a national reporting list of a country of intended transit.
15. The potential advantages of the system – to those from third countries – become clear in Chapter 4. Articles 19 and 20 respectively allow “Aliens holding a uniform visa who have legally entered the territory of a contracting party” and “Aliens not subject to a visa requirement” to move freely within the territories of all the Contracting Parties throughout the period of validity of their visas or for up to three months during the six months following first entry (as appropriate). Article 21 allows aliens holding residence permits issued by a Contracting Party along with a travel document to move freely within the territories of other Contracting Parties, subject to Article 5 conditions.
16. Title III contains the provisions on Police and Security. Chapter 1 deals with Police co-operation (“police authorities shall… assist each other for the purposes of preventing and detecting criminal offences”); Chapter 2 addresses mutual assistance in criminal matters, and is explicitly supplementary to the 1959 European Convention on Mutual Assistance in Criminal Matters (see further below); Chapter 4 covers extradition and supplements the 1957 European Convention on Extradition (see further below); Chapter 5 concerns transfer of the execution of criminal judgments, and applies between Contracting Parties who are also party to the 1983 Convention on the Transfer of Sentenced Persons (see further below)
17. The Schengen Information System (SIS) is the machinery for administration of the Agreement, as described in Article 92. Its purpose is to maintain public order and security (including State security) and to apply the provisions of the Convention relating to movement of persons. The SIS contains information on reports on persons and objects accessible for regulating border checks and controls and other police and customs checks. It is also referred to when issuing visas and residence permits, and other administrative measures concerning aliens and the movement of persons.
18. Article 96 contains the grounds on which data on aliens may be stored. These include decisions taken by national courts relating to a threat to public order or national security and safety, and may also relate to an alien having been subject to a deportation, removal or expulsion measure which has not been rescinded and which includes or is accompanied by a prohibition on entry or residence, where the measure was based on non-compliance with national regulations on the entry or residence of aliens.
19. Practical implementation of the Schengen visa system is now undertaken by the Council of the European Union. The Council’s responsibilities relate inter alia to common rules for examination of visa applications and ensuring their correct implementation and adaptation, elaboration of the list of documents valid for border crossings, practical procedures for implementing border checks, conditions governing the issue of visas at borders, form, content and period of validity of visas and charges for their issue, conditions for extension and refusal of visas, procedures for limiting their territorial validity, the list of travel documents to which the common visa may be apposed, exceptions and arrangements for minor border traffic, principles concerning the common list of aliens not to be permitted entry and, generally, ensuring that the Convention is implemented correctly.
20. From the perspective of accession, the Schengen system is implemented via a two-step mechanism with its provisions divided into two categories. Category I contains provisions which must be implemented upon accession, including external border controls, visa sticker and visa list regulations, and police co-operation an judicial co-operation in criminal matters. Category II provisions are applied only upon full implementation of Schengen, i.e. the point at which internal border controls on the free movement of persons are lifted, with the Schengen evaluation procedure being completed by a Council decision verifying satisfaction of all relevant conditions. During the ‘transitional period’, new EU member States will have a certain room for manoeuvre, for instance with respect to visa fees or the type and validity of visas issued. The process of accession has involved considerable EU aid to candidate states through the Phare programme, and related technical assistance has been provided to the EU’s eastern and south-eastern neighbours through, for example, the TACIS and CARDS programmes.
21. Council of Europe member States who are not members of the EU can therefore be divided into two groups: Andorra, Bulgaria, Cyprus, Croatia, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, the Czech Republic, Romania, San Marino, Slovakia, Slovenia and Switzerland, whose nationals do not need a visa for entry into the Schengen area; and Albania, Armenia, Azerbaijan, Bosnia and Herzegovina, “the former Yugoslav Republic of Macedonia”, Georgia, Moldova, Russia, Serbia and Montenegro, Turkey and Ukraine, whose nationals do.1
D. The 1957 European Agreement on Regulations Governing the Movement of Persons between Member States of the Council of Europe
22. The Council of Europe has most directly addressed the issue of freedom of movement in the 1957 European Agreement on Regulations Governing the Movement of Persons between Member States of the Council of Europe (ETS 25 – the 1957 European Agreement), which is intended to facilitate personal travel. Similarly to the 1990 Schengen Convention, contracting parties must allow nationals of other contracting parties to enter or leave their territories, for visits of up to three months, to, on presentation of a document of a type listed in the appendix to the agreement. To the extent deemed necessary, frontier crossings may be limited to authorised points; ‘undesirables’ may be forbidden from entry or staying on a contracting party’s territory; and the agreement’s entry into force may be delayed or suspended with respect to other contracting parties on grounds relating to ordre public, security or public health – although a state becomes unable to claim application of the agreement from the states against which it has so acted. It must be noted that the 1957 European Agreement does not contain the police and judicial cooperation measures found in the 1990 Schengen Convention. These issues are, however, comprehensively addressed in other Council of Europe treaties (see below).
23. As of August 2003, however, the 1957 European Agreement was in force between only 15 of the Council of Europe’s 45 member states, and despite the organisation’s rapidly expanding membership only four new ratifications had been received since 1968. Whilst most of these are EU member states, and most of the remainder are candidates likely to accede in the foreseeable future, other contracting parties include Liechtenstein, Switzerland and Turkey. Liechtenstein and Switzerland have concluded agreements with the EU whereby visa requirements are mutually abolished. As regards Turkey, however, Austria, Belgium, France, Germany, Luxembourg, the Netherlands, Portugal, Slovenia and Switzerland have all suspended or delayed enforcement of the 1957 European Agreement.
24. For EU-member contracting parties the primacy of the Schengen system over the 1957 Agreement is clear. For example, Germany raised an objection under Article 11 to certain documents listed by Slovenia, on the basis that “they do not meet the requirements laid down in Article 5, paragraph 1.a, of the Convention Implementing the Schengen Agreement in conjunction with the Common Manual of the Schengen partners”; similarly, Greece objected to the use of Slovene identity cards to “enter the external borders of the Schengen countries” as it “would contradict the Schengen acquis (Common Manual, Part II, 2.1.)”; and Spain objected that it could not accept the Slovene identity card “as it is in contradiction with community law…”, and with respect to the Slovene emergency passport, Spain would “allow border crossing only in case of departure from the Schengen zone”.
E. Other Council of Europe treaties concerning free movement of persons
European Convention on Establishment
25. The 1955 European Convention on Establishment (ETS 19 – the 1955 European Convention) notes in its preamble “the special character of the links between the member countries of the Council of Europe”, “[b]eing convinced that… the establishment of common rules for the treatment accorded to nationals of each member State in the territory of the others may further the achievement of greater unity”. From these and other principles, the 1955 European Convention sets out a series of provisions relating to prolonged or permanent residence.
26. Chapter I covers entry, residence and expulsion: Contracting Parties are to facilitate temporary visits by nationals of other Parties, and to permit their free circulation subject to interests of ordre public, national security, public health or morality. Prolonged or permanent residence are also to be facilitated, subject to economic and social conditions and the same general interests. Those lawfully resident on the territory of a Contracting Party are not to be expelled unless endangering national security or offending against ordre public or morality.
27. Chapter IV stipulates that Contracting Parties shall authorise the nationals of other Parties to enter employment on an equal footing with their own nationals, subject to social and economic conditions: on signature or ratification, certain derogations may be made from these criteria. Contracting States’ may limit access to public functions or occupations connected with national security or defence. Special dispensations are established for commercial travellers who are nationals of a Contracting Party and are employed by a firm whose principal place of business is within a Contracting Party.
28. An accompanying Memorandum of Understanding notes inter alia that Contracting Parties have the right to judge by national criteria the Convention’s limiting conditions, such as ordre public, national security, public health or morality, economic and social conditions. The concept of ordre public is to be understood in the wider sense “generally accepted in continental countries”.
29. Unfortunately, the 1955 European Convention has been ratified and is in force between very few member States – only Belgium, Denmark, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Norway, Sweden, Turkey and the United Kingdom; and since 1971 of these only Turkey has ratified, in 1990.
European Convention on the Legal Status of Migrant Workers
30. The preamble to the 1977 European Convention on the Legal Status of Migrant Workers (ETS 93 - the 1977 European Convention) states that “the legal status of migrant workers who are nationals of Council of Europe member States should be regulated so as to ensure that as far as possible they are treated no less favourably than workers who are nationals of the receiving State in all aspects of living and working conditions” and expresses the resolution to “facilitate the social advancement of migrant workers and members of their families” The Convention provides inter alia that Contracting Parties shall guarantee to migrant workers the right to enter the territory in which they shall be employed, on condition of authorisation and of obtaining the necessary papers, and subject to conditions necessary for the protection of national security, public order, public health or morals.
31. Contracting Parties are to issue residence permits to migrant workers, which may be withdrawn for reasons of national security, public health or morals; if the holder refuses to comply with measures prescribed for the protection of public health; or if a condition essential to its issue or validity is not fulfilled: a right of appeal shall attach to withdrawal of residence permits. Migrant workers’ health may be checked prior to recruitment to ensure that it does not endanger public health. Family reunion (spouse and unmarried, dependent minor children) is to be allowed, subject to the availability of suitable housing; reunion may also be conditional on the migrant worker having steady resources available sufficient to meet the family’s needs.
32. Again, unfortunately the 1977 European Convention has not been widely ratified – only by France, Italy, the Netherlands, Norway, Portugal, Spain, Sweden and Turkey (Belgium, Germany, Greece, Luxembourg and Moldova have signed but not ratified).
European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities
33. The 1980 European Outline Convention (ETS 106) is particularly relevant to relations amongst cross-border communities. Article 1 commits Contracting Parties to “facilitate and foster transfrontier co-operation between territorial communities or authorities” and to “promote the conclusion of any agreements and arrangements that may prove necessary for this purpose”. ‘Transfrontier co-operation’ is defined as “any concerted action designed to reinforce and foster neighbourly relations between territorial communities or authorities” with Contracting Parties’ jurisdictions. A series of model and outline arrangements and agreements is appended. This includes a “Model inter-state agreement on transfrontier co-operation in matters concerning lifelong training, information, employment and working conditions", which provides that nationals of States party residing in the ‘frontier area’ shall have access to the labour markets of neighbouring States party on an equal footing with the other States’ nationals ; and a “Model inter-state agreement for the promotion of transfrontier or transnational school co-operation” is intended to promote knowledge of languages and cultures and thus to develop personal relations and exchanges of experience and information. This treaty has been ratified more widely, by 30 member States (with a further four signatures).
34. All of these instruments – the 1955 European Convention, the 1957 European Agreement, the 1977 European Convention and the 1980 European Outline Convention – remain important and relevant to the issues raised in the present report. The Rapporteur, therefore, recalling Assembly Recommendations 879 (1979), 931 (1981), 1082 (1988) and 1587 (2002), would urge governments of all member States that have not yet done so to ratify these instruments without delay. The Committee of Ministers should where necessary act to ensure that any legal or administrative obstacles to further ratifications are overcome.
F. Council of Europe treaties relevant to police and judicial cooperation
35. Recalling that the Schengen system combines measures relating to border controls and visa regulations with those concerning criminal justice, it is instructive to note the extent to which matters falling into the latter category have already been addressed by treaties drawn up by the Council of Europe. (For the purposes of the following analysis, the group of “enlarged EU-neighbouring States” is taken to include Albania, Bosnia and Herzegovina, Bulgaria, Croatia, Romania, Russia, Serbia and Montenegro, “the former Yugoslav Republic of Macedonia”, Turkey and Ukraine: of these, all but Bulgaria, Croatia and Romania require Schengen visas, as do Armenia, Azerbaijan, Georgia and Moldova. The situation of Belarus is not considered.)
European Convention on Mutual Assistance in Criminal Matters
36. This Convention (ETS 30), opened for signature in 1959, is explicitly referred to in the 1990 Schengen Convention as the basis of its provisions in this area. Article 1 states that the Contracting Parties undertake to afford each other the widest measure of mutual assistance in proceedings in respect of offences the punishment of which falls within the jurisdiction of the judicial authorities of the requesting state. It includes provisions relating to service of writs and records of judicial verdicts, the appearance of witnesses, experts and defendants, the laying of information with a view to proceedings in the courts of another state and exchange of information from judicial records. As of August 2003, it had been ratified by all member States (along with Israel) other than Andorra, Bosnia and Herzegovina and San Marino.
37. The 1978 Additional Protocol (ETS 99) extended application of the Convention to fiscal offences. This Protocol had been ratified by 38 member States, including all of the enlarged EU-neighbouring States except Bosnia and Herzegovina. A Second Additional Protocol of 2001 amended and reinforced the Convention’s practical effect. This Protocol has been signed by 21 member States but to date received only two ratifications (one of which was Albania), with three necessary for its entry into force.
European Convention on Extradition
38. This Convention (ETS 24, 1957) is also mentioned in the 1990 Schengen Convention. It imposes on Contracting States an obligation to surrender to each other all persons against whom competent authorities of the requesting State are proceeding for an offence or who are wanted by these authorities for the carrying out of a sentence or a detention order. It applies in relation to proceedings for offences punishable by detention of at least one year (or by a more severe penalty) and to sentences of detention already passed of at least four months. Whilst not applying to political offences, it does apply to fiscal offences. It also covers handing over property which is either evidence or the proceeds of crime. As of August 2003, it had been ratified by all member States other than Bosnia and Herzegovina and San Marino.
39. The Second Additional Protocol (ETS 98, 1978) extended the application of the Convention to offences of lesser gravity as well as containing further provisions relating to judgments in absentia and amnesties. This Protocol has been ratified by 36 member States and signed by a further two; of the enlarged EU-neighbouring States, all but Bosnia and Herzegovina had ratified.
Convention on the Transfer of Sentenced Persons
40. The Parties to this Convention (ETS 112 – 1983; again, mentioned in the 1990 Schengen Convention) “undertake to afford each other the widest measure of co-operation in respect of the transfer of sentenced persons”. A person sentenced on the territory of one Party may be transferred to another in order to serve the sentence imposed, subject inter alia to the agreement of the sentencing and the administering State. All member States other than Bosnia and Herzegovina, Russia and San Marino have ratified the Convention, along with Armenia, Azerbaijan, Georgia and twelve non-members.
European Convention on the International Validity of Criminal Judgments
41. This Convention (ETS 70, 1970) provides that Contracting States are competent to enforce sanctions imposed in other states which are enforceable in the latter, on request by the other. Only sixteen member States have ratified this Convention, although a further nine have signed without ratifying (in the cases of Belgium, Germany, Greece, Italy, Luxembourg and Portugal, over 20 years ago). This Convention is not referred to in the 1990 Schengen Convention: of the enlarged EU-neighbouring States, only Romania, Turkey and Ukraine had ratified, as had Georgia; equally, however, of 25 EU member and current-round candidate States, only ten had ratified.
Convention on Laundering, Search, Seizure and Confiscation of the Proceeds of Crime
42. This Convention (ETS 141, 1990) is intended to facilitate international cooperation and mutual assistance in investigating crime and locating, seizing and confiscating the proceeds thereof. Contracting States undertake to criminalise laundering of the proceeds of crime and to confiscate items used for the commission of crime, along with proceeds, and a series of measures intended to facilitate these activities are elaborated. All member States other than Armenia, Bosnia and Herzegovina, Georgia, Serbia and Montenegro and Turkey have ratified the Convention.
European Convention on the Suppression of Terrorism
43. Also vital to the establishment of a pan-European area of freedom, security and justice, and so relevant to the concerns underlying Chapter 4, Title III of the 1990 Schengen Convention, this Convention (ETS 90, 1977) is intended to facilitate the extradition of persons having committed acts of terrorism, by excluding from the definition of ‘political offences’ certain criminal acts typically associated with terrorism. All member States except Andorra, Armenia, Azerbaijan, Bosnia and Herzegovina and “the former Yugoslav Republic of Macedonia” have ratified the Convention.
44. A Protocol Amending the Convention (ETS 190, 2003) clarifies and expands the list of offences excluded from the definition of ‘political’ and expands the Convention’s scope for being applied as the basis of an extradition request. 34 member States have signed, including all but nine of those whose eventual ratification is needed for the Protocol to take effect, but none have yet ratified.
Criminal Law Convention/ Civil Law Convention on Corruption
45. These two Conventions (ETS 173 and 174, 1999) also relate to the matters of international public interest. The former includes provisions on bribery of foreign public officials and members of foreign public assemblies, bribery of officials of international and supranational organisations and members of international or supranational parliamentary assemblies, and bribery of judges and officials of international courts. It also requires Contracting Parties to adopt measures to facilitate the gathering of evidence and the confiscation of proceeds, and those necessary to ensure cooperation between national public authorities responsible for investigating and prosecuting relevant criminal offences. Contracting Parties are to afford one another the widest measure of mutual assistance. The criminal offences established by the Convention shall be deemed extraditable. 21 member States have ratified the Convention; of the enlarged EU-neighbouring States, all but Russia, Turkey and Ukraine have ratified. Few current EU member States have ratified.
46. The Civil Law Convention on Corruption also establishes international co-operation, in matters relating to civil proceedings in cases of corruption. 14 member States have ratified the Convention and a further 21 signed it; of the enlarged EU-neighbouring States, Albania, Bosnia and Herzegovina, Bulgaria, Croatia, Romania and “the former Yugoslav Republic of Macedonia” have ratified, as has Georgia.
Group of States Against Corruption (GRECO)
47. The GRECO was established as a partial and enlarged agreement by Committee of Ministers Resolution 99 (5). It was conceived as a flexible and efficient follow-up mechanism for monitoring, through a process of mutual evaluation and peer pressure, the observance of the Guiding Principles in the Fight against Corruption and the implementation of international legal instruments adopted in pursuance of the Programme of Action against Corruption. According to its Statute, the aim of the GRECO is to improve its members' capacity to fight corruption by monitoring the compliance of States with their undertakings in this field. All Council of Europe member States other than Andorra, Armenia, Austria, Azerbaijan, Italy, Liechtenstein, Russia, San Marino, Switzerland, Turkey and Ukraine are members of the GRECO.
48. The two anti-corruption conventions mentioned above both make the GRECO responsible for monitoring their implementation. The GRECO Statute foresees the possibility of EU participation, and the European Commission has supported an EU application to both the Criminal and Civil Law Conventions on Corruption and subsequently to the GRECO.2
G. Work of the Parliamentary Assembly concerning free movement of persons
49. Assembly Recommendation 879 (1979) on the movement of persons between the member states of the Council of Europe inter alia reaffirmed the individual right of freedom of movement and called on the Committee of Ministers to invite governments of member States to sign and ratify the 1957 European Agreement, the 1959 European Agreement on the Abolition of Visas for Refugees and the 1961 European Agreement on Travel by Young Persons on Collective Passports between Member Countries of the Council of Europe. Amongst other proposals it also suggested standardisation of national identity cards.
50. The Committee of Ministers’ Reply, adopted on 11 February 1982, referred to its instruction to the Ad hoc Committee of Experts for Identity Documents and Movement of Persons (CAHID) to hold regular exchanges of views, and asserted that a first exchange of views had “provided clarification likely to promote a solution of the problems preventing the signature or ratification of these Agreements by a number of States”. The Rapporteur observes that experience has shown this optimism to have been misplaced, and that subsequent development of the Schengen system has made such progress more difficult. (Committee of Ministers’ Replies to the following Recommendations are included only where, in the Rapporteur’s view, they make substantial contributions.)
51. Recommendation 990 (1984) on clandestine migration in Europe concerned in particular migrant workers (see also Recommendation 1587 (2002).) Recommendation 990 recognises the negative effects of clandestine migration in causing injustice, due to the employment of unregulated labour at low wages and without social protection and the consequential distortion of the regular labour market. It then notes that legal measures taken in the 1970s to reduce or halt lawful migration had produced the indirect effect of increasing irregular migration, and that the latter phenomenon had grown continuously despite adoption of Committee of Ministers' Recommendation (78) 44 on clandestine immigration and the illegal employment of foreign workers, which had sought to prevent, control and penalise those involved.
52. Recommendation 1014 (1985) on the entry visas required of Turkish nationals by certain Council of Europe member states, which followed on from Recommendation 906 (1980) on the same subject, whilst country-specific is particularly instructive. It notes that discriminatory visa requirements are particularly unfair inter alia on couples one of whom is of foreign nationality and their children when visiting families in host countries, and on persons whose occupation requires travel abroad. It then deplores the effects of such visa requirements on freedom of movement (bearing in mind the spirit of the 1957 European Agreement), on family reunion, and on the limited resources of those concerned. It recognises the risk of the Turkish people as a whole feeling rejected due to the discriminatory effect of the visa requirement, and fears that this feeling could be exploited by extremist movements. The Recommendation declares that the cause of democracy and human rights would be furthered by adopting an enlightened policy of treating migrants in a welcoming manner, “thereby strengthening their attachment to the values upheld by the Council of Europe”. It then emphasises that events which had prompted imposition of the visa requirement did not meet the 1957 European Agreement’s requirements of being grounds relating to public order, security or public health, and that migrant workers receiving law wages contributed to the development of industrialised countries. Its proposals to the Committee of Ministers included abolition of the visa requirement for legally resident migrant workers and for their families, and the introduction of greater flexibility and standardisation into visa-granting procedures for those whose family or occupational circumstances so required.
53. Recommendation 1373 (1998) on freedom of movement and the issue of visas to members of the Parliamentary Assembly of the Council of Europe, whilst focussed in its proposals, also set out clear general principles. It noted that free movement of Europeans between Council of Europe member States is a condition for achieving the organisation’s aim of greater unity. Nevertheless, no member State had entirely abolished visa requirements for nationals of all other member States, even though visa requirements often amounted to complicated, cumbersome and expensive obstacles to free movement of persons; such abolition should therefore be an objective in the near future. Member States should therefore be encouraged to facilitate means for obtaining visas by nationals of other member States, reduce the number of nationalities for whom visas are required, and reduce the expenses involved or even issue free of charge.
54. The Committee of Ministers replied in Doc. 8244 of 28/10/98. This Reply did not address the general principles raised, but did invite the governments of member States to instigate a series of measures intended to make the procedure of obtaining visas more rapid and flexible.
55. Recommendation 1579 (2002) on the enlargement of the European Union and the Kaliningrad Region amounts to a case-specific investigation of some of the issues involved in the present report. Paragraph 9 of the Recommendation stated that “The Assembly is of the opinion that favourable travel regimes among member states of the Council of Europe should not be reversed through their accession to the Schengen Agreement.” In paragraph 11, it proposed that the Committee of Ministers “instruct its relevant steering committees to analyse how far the European Agreement on Regulations Governing the Movement of Persons between Member States of the Council of Europe should be amended by additional provisions on machine-readable standardisations of travel documents, the transcription between the Cyrillic and Latin alphabets, the mutual exchange of information between signatory parties related to public order and security, as well as the readmission of illegal migrants”, and that it “invite all member states to sign and ratify the European Agreement on Regulations Governing the Movement of Persons between Member States of the Council of Europe”. Particular measures urged on Lithuania, Poland and Russia (the states concerned) included establishing a facilitated visa and travel regime for Russian citizens; granting visa privileges to Russian citizens travelling to and from Kaliningrad (in accordance with relevant provisions of the Schengen Agreement); improving the number of and facilities at border crossings, particularly with regard to small cross-border traffic; signing and ratifying bilateral agreements on the readmission of illegal migrants; assisting local and regional authorities in implementing the European Outline Convention (see above); and (with respect to Poland and Russia) to sign and ratify the European Convention on the International Validity of Criminal Judgments (see above).
56. The situation of the Kaliningrad region, an exclave of Russia surrounded by first-wave EU-accession candidate states, distinguishes itself in that implementation of the Schengen system will have consequences for freedom of movement within a single state – albeit between two separate territories of that state – a freedom which is protected by Article 2 of Protocol No. 4 of the European Convention on Human Rights. Nevertheless, the general practicability of the measures suggested is a matter relevant to the wider freedom of movement issues arising from EU enlargement.
57. The Committee of Ministers replied to Recommendation 1579 (2002) in Doc. 9793 of 24/4/03. This Reply noted inter alia that various Council of Europe expert committees had dealt over the years with implementation of the 1957 European Agreement, identifying, amongst others, the problem that it had not been taken into account when the provisions of the Schengen Agreement were drafted. Consideration was therefore being given to instructing the European Committee for Legal Cooperation (CDCJ) to examine application of the 1957 European Agreement with the possibility of formulating recommendations on its implementation or, if necessary, proposals for its amendment. The Committee of Ministers felt that it was necessary first to study the problems of implementation before inviting further member States to ratify. In view of the Committee of Ministers’ misplaced optimism when replying to Recommendation 879 (1979), the Rapporteur hopes that greater urgency now attaches to this work.
58. Recommendation 1587 (2002) on the residence, legal status and freedom of movement of migrant workers in Europe: lessons from the case of Portugal was concerned the situation of many east European (particularly Ukrainian) migrant workers living and working legally in Portugal, and calls on member States to ratify the 1977 European Convention on the Legal Status of Migrant Workers (see above).
H. Colloquy held by the Committee on Legal Affairs and Human Rights
59. On 3 March 2003 the Committee held a colloquy attended by Ms Laura Corrado of the European Commission’s unit responsible for Free Movement of Persons, Visa Policy, External Borders and Schengen and Dr Marek Kupiszewski of the Central European Forum for Migration Research, Warsaw and the International Organisation for Migration’s Warsaw Office.3 The Rapporteur would like to record his gratitude for and great appreciation of the invaluable contribution made by Ms Corrado and Dr Kupiszewski to the preparation of the present report.
60. Prior to the colloquy, Dr Kupiszewski had, at the invitation of the Committee, prepared a briefing paper on the issues involved, and the Rapporteur would like to make particular reference to the following points made therein. EU states, particularly the new members, should expand their consular services’ capacities to issue visas quickly and without unnecessary delay, inconvenience or humiliation: the costs of this should be met by EU finances to avoid further burdens on candidate countries’ already-stretched budgets. To reduce the consular case-load whilst still allowing periodical examination of applications and documents, there should be multiple-entry visas of long duration (say five years). The cost of visas should be as low as possible so as not to discriminate against the less well-off; since the cost of visas was usually set reciprocally, non-Schengen states should also reduce the cost of their visas to citizens of Schengen states. Requests for documents should be limited to those indispensable to justifying an applicant’s relevant statements and violations of privacy, both during examination of documents and any interviews, must be avoided. The possibility of postal applications should be considered. Since the final decision on admission is taken by immigration officers at borders, these officials should not be allowed to refuse entry on vague subjective grounds relating to appearance or behaviour – non-admission of those with valid visas should be a genuinely exceptional reason and must be properly justified.
61. During the colloquy Ms Corrado added to Dr Kupiszeswki’s elaborated presentation. She pointed out that the Schengen rules already allowed for a certain flexibility, for instance the possibility of issuing multiple-entry visas valid for one year or, exceptionally, up to five years for bona fide persons having valid reasons to travel frequently to and within the Schengen area. She also gave a detailed explanation of the then forthcoming Commission Communication entitled “Wider Europe – Neighbourhood: A New Framework for Relations with our Eastern and Southern Neighbours”.
I. Communication from the Commission, “Wider Europe – Neighbourhood: A New Framework for Relations with our Eastern and Southern Neighbours”
62. On 11 March 2003 the European Commission published the above-entitled document. It is encouraging that this document early on states that “Enlargement gives new impetus to the effort of drawing closer to the 385 million inhabitants of the countries who will find themselves on the external land and sea border, namely Russia, the Western NIS [Ukraine, Moldova and Belarus] and the Southern Mediterranean.” “The Communication proposes that the EU should aim to develop a zone of prosperity and a friendly neighbourhood – a ‘ring of friends’ – with whom the EU enjoys close, peaceful and co-operative relations.”
63. This positive approach continues with respect to freedom of movement. So, for example, “The neighbouring countries are the EU’s essential partners: … to foster the mutual exchange of human capital, ideas, knowledge and culture… To this end, Russia, the countries of the Western NIS and the Southern Mediterranean should be offered the prospect of a stake in the EU’s Internal Market and further integration and liberalisation to promote the free movement of – persons, goods, services and capital (four freedoms).”
64. Under the heading “Proximity”, the document again considers migration. It noted that the EU and its neighbours had a mutual interest in cooperating to ensure that migration policies, customs procedures and frontier controls did not interfere with border crossings undertaken for legitimate purposes. It recognised the great importance of cross-border cultural links, notably between those of common ethnic or cultural backgrounds. It also concluded that to address comprehensively all forms of threats to security required joint approaches.
65. More specifically, the document contains a section dealing specifically with migration and movement of persons. This notes the common interest of the EU and ‘partner’ countries in ensuring that the new external Schengen border is not a barrier to trade, social and cultural interchange or regional cooperation. Its notes the importance of mechanisms allowing workers to move between territories to where their skills are most needed, whilst considering that free movement of people and labour remains the overall long-term objective. A long-stay EU visa policy would facilitate significant additional opportunities for cultural and technical interchange. An efficient and user-friendly system for small cross-border traffic was essential, including facilitating the crossing of external borders for bona fide third-country nationals living in border areas who have legitimate and valid reasons for regularly crossing the border and who do not pose any security threat. EU member states should consider granting visa-free access to holders of diplomatic and service passports. Beyond that, the EU should examine wider application of visa-free regimes. Assistance should be given to reinforcing neighbouring countries’ efforts to combat illegal migration and to establish mechanisms for returns, especially of illegal transit migration – readmission agreements with Russia, Ukraine and Moldova were essential in this respect.
J. Other EU documents and statements
66. The Presidency Conclusions of the European Council held in Copenhagen on 12-13/12/02 specifically addressed the issue of “The enlarged Union and its neighbours.” The Council noted that enlargement represented an opportunity for developing relations with neighbouring countries on the basis of shared political and economic values, with the EU determined to avoid creating new dividing lines. The countries of the Western Balkans would be encouraged in their efforts to move closer to the EU; relations with Russia would be strengthened, and those with Ukraine, Moldova and Belarus enhanced. Further development of cross-border and regional co-operation was offered encouragement and support, so that the neighbouring region’s potential could be fully developed.
67. The EU’s General Affairs and External Relations Council, meeting on 16 June 2003, adopted the “Council Conclusions on Wider Europe – New Neighbourhood” (in preparation for which the Commission Communication – welcomed by the Council – had been produced). This document contains similar sentiments to that of the European Council above. Enlargement was recognised as a historic step for the entire continent, presenting a unique opportunity to strengthen co-operation with neighbouring States. Political goals included poverty reduction and the creation
of an area of shared prosperity and values based on free trade, deeper economic integration, intensified political and cultural relations and enhanced cross-border co-operation, including people-to-people contact. These conclusions echoed those of an earlier meeting of 18 November 2002, which had specifically noted the importance of relations with future Eastern European neighbours such as Ukraine, Moldova and Russia.
68. In the interim, the European Conference, with the participation of Russia, had taken place at the level of heads of state and government in Athens on 17 April 2003. The Declaration of this event mentioned inter alia that establishment of common values had enabled the creation of bonds of trust between countries and peoples allowing gradual expansion of prosperity and security, with the current round of EU enlargement indicating the reality of political and economic interdependence with neighbouring States. The Heads of State and Government reaffirmed their determination not to tolerate any new dividing lines and to promote policies of gradual integration into common social and economic structures designed to accelerate Europe’s political, economic and cultural dynamism. The Conference recognised the Europe was united by historic links, geographical proximity and shared political and economic values, such that the “shared neighbourhood” should benefit from enlargement with creation of an “area of peace, stability, prosperity and social progress” and strengthening of co-operation on issues directly impacting citizens’ lives. The importance was underlined of inter alia mutual trade, market opening and gradual integration into economic structures, increased cultural cooperation and people-to-people contacts, and transnational and cross-border co-operation. To implement these goals required flexible instruments and actions tailored to specific needs with a differentiated approach, conditional on meeting targets for progress.
69. The Commission’s position was also explained during the European Parliament’s debate on “The neighbours of the enlarged Europe: a new framework for relations with the neighbours to the east and south” of 11 March 2003. During this debate, Mr Prodi, President of the Commission, acknowledged the “frustration and tension” of eastern European countries, who had reproached the EU “for merely shifting the iron curtain eastwards”. There was a need to create a “ring of friends… with which we can share programmes, market, rules and political dialogue but not Parliament, not the Council and not the Commission.” He noted that “the western Balkan countries are not included in this ring” as “the prospect of their membership has already been agreed, although the date has not yet been set.” The EU’s objectives included “to create, together with our partners, an area of prosperity and stability based on the principle of economic integration, strengthening of political bonds and cultural cooperation”. “In practical terms, we will work with our neighbours to create a single market, to promote the free movement of persons, goods and services… to step up dialogues between cultures and religions, to integrate transport, energy and telecommunications networks…, in short, to bring about ever greater integration based on the shared values and principles of tolerance, peace, freedom and solidarity”. “There is no longer an iron curtain. There is no exclusion any more. There are Member countries, but countries which have a relationship of increasing active cooperation with the countries around them, with the ring of friends… an ever stronger and closer proximity policy through the ring of friends.”
70. Commissioner Patten also contributed to the debate, stating that the general view of the Commission was that “it was absolutely imperative that we give the question of the relationship with our new neighbours the priority which in the past we have given the whole process of enlargement; that, in other words, it becomes part of everybody’s responsibility to promote the concept of an institutionalised ring of friends to whom we can offer ways of sharing in our security, stability and prosperity.”
K. The experience of Ukraine
71. Eastwards enlargement of the EU will be accompanied by the introduction of a visa regime applicable to states neighbouring the candidates, along with the enhancement of various measures to combat the illegal migration which is contrary to the interests of all citizens of greater Europe. The question of how to regulate the migrant workforce and to maintain social protection for the citizens of eastern and south-eastern Europe is central to this process.
72. The introduction of European-level regulation in this area to candidate countries will result in the restriction of opportunities for employment of citizens of these countries. On the other hand, it is obvious that much of the westwards migration from Ukraine, Moldova, Belarus, Georgia, Armenia, Azerbaijan and Russia is in fact illegal labour migration, and this causes problems for relations between EU countries and others.
73. Clearly the efforts of the countries of origin alone are not enough to overcome the problem of illegal labour migration. For the problem to be solved, it is necessary that it be addressed by the EU, by member and candidate States, and by neighbouring states together.
74. Because of its unique geographical position – having borders with seven different countries –, Ukraine has become a major transit country for illegal migration, for those heading for Europe from Asia and Africa and in particular the Middle East and South-West Asia. For example, in 2001, 2497 illegal immigrants were detained in Zakarpatye, which borders Hungary, Slovakia, Romania and Poland, alone. In 2002 an international conference on the problem was held in Uzhgorod.
75. Many illegal migrants enter Ukraine from Russia, and Zakarpatye marks the final transit point on the route into western and central Europe of illegal migrants originating in Asia. Other channels into Ukraine run through Moldova and Belarus, and apart from Zakarpatye another important route into Europe runs through the Balkans. The most numerous nationalities of migrants are Indian, Afghan, Pakistani, Vietnamese, Iraqi and various African countries.
76. Ukraine faces the dilemma of being unable to allow them to proceed to their intended destinations without risking the creation of instability, whilst lacking a system for their deportation or even for their registration, documentation, or detention whilst in Ukraine. Significant progress has been made, however, with respect to bilateral agreements for the readmission of third-country nationals intercepted in transit through Ukraine. Such agreements have been signed with Poland, Slovakia, Bulgaria, Uzbekistan, Moldova, Latvia, Hungary and Turkmenistan, and have been proposed with respect to Romania and Russia.
L. Conclusions and recommendations
77. It would be a tragic and dangerous mistake if the current round of EU enlargement, whilst (eventually) allowing free movement within the Schengen area for citizens of the new member states, simultaneously raised barriers against the free movement within Europe of citizens of other Council of Europe member States.
78. The Rapporteur fully understands the concerns of the EU and its member States that free circulation within the Schengen area must be supported by a common visa policy and enhanced police and judicial cooperation. At the same time, it would be unrealistic to expect full extension of the Schengen provisions, without at the same time extending other EU regulations, to the EU’s neighbours in eastern and south-eastern Europe. The process of EU accession is necessarily a long and difficult one, dependent mainly on economic developments which can only be achieved with time.
79. Nevertheless, the Rapporteur feels that the current Schengen system pays insufficient regard to the circumstances of coherency and cooperation existing as a result of, firstly, the economic, social and cultural links and, secondly, statutory and treaty relationships between Council of Europe member States other than those resulting from membership of the EU. These circumstances should be given greater consideration as justification for enhancing the freedom of movement of citizens of European states throughout the continent.
80. The historical and geographical links which define the unity of member States of the Council of Europe are good reasons in themselves to consider privileging these States’ citizens’ rights of entry into and circulation within the Schengen area. The ethno-cultural heterogeneity and historically variable borders of central and eastern European states argue strongly against erecting barriers which cut through cross-border communities and which interrupt established trading patterns. If free movement is a good thing between EU member States, then it is also a good thing between EU member States and their neighbours and should so far as possible be facilitated.
81. As to concerns relating to public order and national security, EU-neighbouring Council of Europe member States are again in a situation distinct from other non-EU States. The analysis of Council of Europe treaties and agreements hereinabove shows that the nearly all enlarged EU-neighbouring States (as broadly defined) have ratified all the relevant instruments mentioned in the 1990 Schengen Convention, and the majority have signed most of the remainder. This shows that there is a clear legal basis on which public order and national security fears concerning the enlarged EU’s future neighbours and near-neighbours can be properly allayed.
82. The Rapporteur therefore concludes that there are three bases on which to avoid enlargement of the EU and the Schengen system leading to the erection of unnecessary barriers to free movement of persons within greater Europe. First, the existing Schengen provisions and procedures can be implemented more appropriately. Second, existing Council of Europe treaties in the area of free movement of persons can be extended and applied more effectively. And third, existing Council of Europe treaties relevant to public order and national security should be taken into account and considered as the basis of a legally reinforced area of freedom, security and justice extending beyond the borders of the enlarged EU. Accordingly, a series of measures are recommended to the governments of member States, to the European Union and to the Committee of Ministers.
Reporting committee: Committee on Legal Affairs and Human Rights
Reference to committee: Doc 9258, Reference No 2675 of 8 November 2001; Doc 9643, Reference No 2790 of 27 January 2003
Draft recommendation adopted by the Committee on 17 September 2003 with 1 abstention.
Members of the Committee: Mr Lintner (Chairperson), Mr Marty, Mr Jaskiernia, Mr Jurgens (Vice-Chairpersons), Mrs Ahlqvist, Mr Akçam, Mr Alibeyli, Mrs Arifi, Mr Arzilli, Mr Barquero Vázquez, Mr Berisha, Mr Bindig, Mr Brecj, Mr Bruce, Mr Chaklein, Mrs Christmas-Mĝller, Mr Cilevics, Mr Clerfayt, Mr Contestabile, Mr Daly, Mr Davis, Mr Dees, Mr Dimas, Mrs Domingues, Mr Engeset, Mrs Err, Mr Fedorov, Mr Fico, Mrs Frimansdóttir, Mr Frunda, Mr Galchenko, Mr Guardans, Mr Gündüz, Mrs Hajiyeva, Mrs Hakl, Mr Holovaty (alternate: Mr Shybko), Mr Ivanov, Mr Kalezić, Mr Kelber, Mr Kelemen, Mr Kontogiannopoulos, Mr S. Kovalev, Mr Kroll, Mr Kroupa, Mr Kucheida, Mrs Leutheusser-Schnarrenberger, Mr Livaneli (alternate: Mr Ateş), Mr Malins (alternate: Mr Wilkinson), Mr Manzella, Mr Martins, Mr Mas Torres, Mr Masson, Mr McNamara, Mrs Nabholz-Haidegger, Mr Nachbar, Mr Olteanu (alternate: Mrs Cliveti), Mrs Pasternak, Mr Pehrson, Mr Pellicini (alternate:
Mr Budin), Mr Pentchev, Mr Piscitello, Mr Poroshenko, Mrs Postoica, Mr Pourgourides, Mr Prica, Mr Pullicino Orlando (alternate: Mr Attard Montalto), Mr Raguz, Mr Ransdorf, Mr Rochebloine (alternate: M. Dreyfus-Schmidt), Mr Rustamyan, Mr Skrabalo, Mr Solé Tura, Mr Spindelegger, Mr Stankevic, Mr Stoica, Mr Symonenko, Mr Tabajdi, Mr Takkula, Mrs Tevdoradze, Mr Toshev, Mr Vanoost, Mrs Wohlwend
N.B. The names of those members who were present at the meeting are printed in italics.
Secretaries to the Committee: Ms Coin, Mr Schirmer, Mr Ćupina, Mr Milner
1 Council Regulation (EC) No. 539/2001 of 15 March 2001
2 See “Communication from the Commission… on a Comprehensive EU Policy against Corruption”, Com(2003) 317 final, 28/5/03
3 It should be noted that the views expressed by Dr Kupiszewski are his own and not those of the International Organisation for Migration.