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Consequences of European Union enlargement for freedom of movement between Council of Europe member states
Doc. 10025
7 January 2004
Opinion[1]
Political Affairs Committee
Rapporteur: Mr Adrian Severin, Romania, Socialist Group
I. Conclusions
1. The Political Affairs Committee on the whole approves the conclusions of the report by the Committee on Legal Affairs and Human Rights on the consequences of European Union enlargement for freedom of movement between Council of Europe member states, while wishing to add some further elements to it.
2. The Political Affairs Committee would stress once again that freedom of movement of persons in Europe is crucial to the attainment of the Council of Europe’s statutory goal of greater unity between the member states of the Organisation.
3. At the same time, the Committee is fully aware of the legitimate concerns of all European countries and their citizens regarding certain matters connected with their security.
4. It is consequently vital for the future of the European continent and of its unity to strike a fair balance between freedom of movement and security, in order to avert at all costs the appearance of new dividing lines in Europe.
5. The obligation for candidate states to accept in full the Schengen acquis, and especially the stipulations regarding visas, generates a real risk of "segregation" in Europe between the European Union member States, including those due to accede to the Union in the near future, and the other countries of Central and Eastern Europe which are member states of the Council of Europe. The citizens of the latter, who will be denied the freedom of movement in the future EU member states which they enjoyed hitherto, are liable to feel like the “oddments” of European integration. European citizens’ freedom of movement ought not to be achieved at the expense of other European citizens.
6. Shifting the EU’s boundaries eastward and making a visa compulsory to cross them may have adverse effects on trade, tourism and cultural, scientific, humanitarian and other exchanges between the populations of countries separated anew by frontiers. In some cases, the consequence of closing these frontiers will be to reduce contacts between members of the same ethnic group living on either side.
7. The closure of borders will also have a negative effect on the functioning of Euro-regions, to which several states of Central and Eastern Europe attach particular importance. These states' borders, drawn after the collapse of former European empires, almost always run through cultural communities and have given rise to the phenomenon of national minorities. Euro-regions offer a way of satisfying aspirations for the unity of "cultural nations" without touching upon the awkward problem of territorial changes or alterations of borders. The introduction of visas will make human contacts within these Euro-regions far more complicated and less spontaneous and this would render the concept wholly meaningless.
8. In the Committee’s opinion, EU enlargement represents a genuine historic opportunity to progress towards unification of the European continent. In that perspective, relations between the EU and the other states of non-EU Europe will prove decisive as regards the future of continent-wide unity.
9. Enlargement constitutes a kind of test case for the Council of Europe, obligated as it is to give all its members confirmation of its ability to sustain and enhance its mission of bringing about closer unity between the countries of greater Europe, still more after the enlargement.
10. It behoves the Council of Europe to be a participant and contributor in building a genuine area of freedom, security and justice spanning the continent. To create such an area, the Political Affairs Committee recommends adopting a sequential, pragmatic approach in three phases:
i. in the short term, it is a matter of urgency to find technical solutions to the problem of visas in order to reduce as far as possible the ill-effects of their introduction on freedom of movement;
ii. in the medium term, common institutions interlinked across the entire continent are to be put in place. These institutions should foster co-operation in respect of immigration and visas, police and judicial co-operation and harmonisation of national legislation;
iii. finally, in the long term, all measures adopted must be directed at creating a genuine European common area of freedom, security and justice, founded on integration commensurate with the wider Europe.
11. The Committee therefore wholeheartedly encourages the application of a discerning neighbourhood policy, with the emphasis on freedom of movement, conducive to unity rather than division between all members of the Council of Europe.
II. Amendments proposed by the Political Affairs Committee to the draft recommendation:
Amendment A
In paragraph 8, insert the following as the first sub-paragraph:
“devote their utmost care to the conduct of a frank, constructive political dialogue ensuring that the appearance of new divisions on the European continent is avoided at all costs and guaranteeing freedom of movement between all members;”.
Amendment B
In paragraph 8, insert the following as the second sub-paragraph:
“encourage political dialogue between EU member states and non-member states in order to raise a spirit of trust between European countries and develop co-operation between the EU and its new neighbours, together with sub-regional co-operation;”.
Amendment C
In paragraph 8, insert the following as the third sub-paragraph:
"facilitate the crossing of borders by setting up at border crossing points special corridors reserved for the nationals of Council of Europe member states;"
AmendmentD
In paragraph 8, insert the following sub-paragraph before current sub-paragraph ii:
"introduce, on the basis of reciprocity, provisions enabling the nationals of Council of Europe member states who hold diplomatic or service passports to make official journeys without a visa;"
Amendment E
At the end of sub-paragraph 8. ii, add the following wording:
“particularly to simplify formalities for obtaining visas and facilitate border-crossing”.
Amendment F
In paragraph 8, insert the following sub-paragraph after current sub-paragraph iii:
"in respect of those member states whose common borders are already external borders of the European Union, or will be following enlargement of the Union, actively co-operate to protect and secure their common borders, as well as the external borders of those Council of Europe member states adjoining the European Union, and engage in institutionalised co-operation concerning the exchange of information relating to the illicit trafficking of persons and goods;".
Amendment G
In paragraph 8, insert the following as the second last sub-paragraph:
“make good use of their authority to issue long-term national visas for citizens of Council of Europe member states;”.
Amendment H
In paragraph 8, insert the following as the final sub-paragraph:
“train the border guards, notably with the intent to dispel the received ideas and stereotypes which they may entertain concerning foreigners and to humanise their contacts with nationals of foreign countries travelling for legitimate reasons.”.
Amendment I
Add the following words at the end of sub-paragraph 9.i:
“and in keeping with human dignity. In this respect, an administrative procedure for control of the processing of visa applications should be instituted and systematised in all consulates”.
Amendment J
In paragraph 9, insert between sub-paragraphs i and ii the following additional sub-paragraph:
“introduce a presumption regarding visas whereby anyone who makes an application for a visa should benefit from the presumption that it will be issued. Any refusal should be based on substantiated reasons meeting specific criteria which would stand a test of transparency;”.
Amendment K
At the end of sub-paragraph 9.ii, add the following words:
“thanks in particular to the use of advanced electronic technology”.
Amendment L
In paragraph 9, add the following final sub-paragraph:
“take steps to make more widely known to the general public the procedure enabling individuals to acquaint themselves with the information held concerning them in the SIS and to have any inaccurate information rectified.”.
Amendment M
Insert after sub-paragraph 10.iii the following sub-paragraph:
“studying the possibility and feasibility of creating Euro-consulates whose specialty would be to issue Schengen visas and process applications for them;”.
Amendment N
Add at the end of sub-paragraph 10. vi the following words:
“and encourage the integration of migrants in the host societies”.
Amendment O
In paragraph 11.i, following the words "co-ordinated and (if necessary) amended", insert the words:
"or completed, including through the preparation, signature and implementation of a new European convention,” …
Amendment P
In paragraph 11, insert a new sub-paragraph reading as follows:
"begin efforts to harmonise, under the auspices of the Council of Europe, and in accordance with the guidelines laid down in Parliamentary Assembly Recommendation 1624 (2003), Council of Europe member states' legislation and practice relating to migration and asylum."
III. Explanatory memorandum presented by the Rapporteur
1. I wish to thank the rapporteur of the Committee on Legal Affairs and Human Rights for his report, embodying a considerable effort to research the subject of freedom of movement and EU enlargement.
2. My position on this question revolves around a central guiding idea, namely that it is crucial to the future and the unity of the European continent to strike a proper balance between freedom of movement and security in order to avert at all costs the appearance of new dividing lines in Europe.
3. I would strongly emphasise the decisive interests at stake for the Council of Europe and its member states in the enlargement of the EU; it constitutes a kind of test case for the Council of Europe. The Council is obligated to give all its members confirmation of its ability to sustain and enhance its mission of bringing about closer unity between the countries of the wider Europe, still more after the enlargement.
4. Generally speaking, the report by the Committee on Legal Affairs and Human Rights is very probing and detailed as regards the current state of the law on freedom of movement in Europe. However, the purely legal implications of enlargement for freedom of movement cannot be contemplated separately. The political, economic, social, cultural and human, together with geo-strategic, implications of this phenomenon must also be considered, as we shall attempt to do succinctly in the following paragraphs.
a. Right to free movement
5. The right to freedom of movement is a universal right enshrined in several international instruments. Article 2 paragraph 1 of Protocol No. 4 to the ECHR secures liberty of movement within the territory of a state to anyone lawfully within its territory. The right to freedom of movement is therefore confined to the territory of a state and valid only for persons who are lawfully within that territory. Article 12 paragraph 1 of the International Covenant on Civil and Political Rights also follows this line, as does Article 13 of the Universal Declaration of Human Rights although it is not legally binding. As a result, the right to freedom of movement does not include freedom of movement beyond the international boundaries or transit through the territory of other states.
6. Consequently, a sovereign state can impose a visa requirement for the crossing of its borders by foreigners and can deny them right of entry to its territory. Although visa requirements do not constitute a limitation on human rights from the strictly legal standpoint, they can nevertheless have significant practical and political consequences which need to be fully taken into account if the harmonious development of international relations is not to be impaired.
7. Some condemn the system of border controls as “global apartheid”[2] by which the rich countries keep the poor outside their boundaries as undesirables. In the specific context of European Union enlargement, it is imperative to take measures against the creation of new dividing lines on the continent of Europe.
b. The Schengen system and its eastward extension
8. The primary purpose of the Schengen Convention was to achieve the removal of controls at internal boundaries between the signatory countries of these agreements. However, the abolition of the internal boundaries has been perceived as causing deficient security, which had to be remedied by imposing what are called compensatory measures. In particular, controls at the external borders have been tightened and the conditions for obtaining visas made more stringent.
9. The Treaty of Amsterdam led to the inclusion of a new Title IV in the treaty instituting the European Community. Title IV is entitled “Visas, asylum, immigration and other policies related to free movement of persons”. These issues, formerly part of the third pillar (intergovernmental) are transferred to the first pillar (Community). Furthermore, the Treaty of Amsterdam comprises a protocol integrating the Schengen acquis.
10. Thus in common parlance the Treaty of Amsterdam and the protocols thereto are said to have “communitised” the Schengen acquis. It is nonetheless a “communitisation with variable geometry”[3], given the peculiar position of Denmark[4], and also of Ireland and the United Kingdom[5].
11. Article 8 of the Protocol integrating the Schengen acquis stipulates its full acceptance by all States which are candidates for admission. Future new Member States of the European Union thus must fulfil very strict conditions for admittance to the Schengen club, and are allowed no derogation from the Schengen acquis. In this way, Community standards of border control and protection are about to be applied to Europe’s eastern flank.
12. The list of countries whose nationals must comply with the Schengen visa requirement in order to cross the external frontiers is settled by Council Regulation (EC) 539/2001 of 15 March 2001.
13. Schengen visas are of two kinds: transit visas, valid for up to 5 days, and travel visas, valid for a maximum term of 3 months. Visas for visits exceeding 3 months are national visas. Furthermore, any person recorded in the Schengen Information System (SIS) is deemed undesirable and cannot be granted a Schengen visa.
c. The risks of division within the European continent
14. For a time, the 1990s led people to believe that all barriers in Europe had finally been broken down. As from 1979, a visa-free area had been established in the very core of the former communist bloc. The destruction of the Berlin wall was taken as actually symbolising the end of the division between Western and Eastern Europe.
15. The accession of the candidate countries to the EU will mark the end of this policy of openness and free movement of persons, as the new member countries will be compelled to re-introduce the visa requirement for their eastern neighbours. This policy brings profound frustration and dismay for the countries of Central and Eastern Europe, the EU’s future new neighbours. Some have even decried the erection of a new “Paper Curtain”[6]after the fall of the iron one.
d. The sometimes irrational fears of the EU
16. The restrictive measures on the EU’s part are the outcome of many and varied fears. All too often, however, these fears are unfounded and are more the stuff of myth than of reality. They should therefore be exposed for what they are, for the eventuality of new dividing lines appearing in Europe corresponds to a doomsday scenario of European integration.
I. Immigration
17. In actual fact, projections demonstrate that the migration flows from the countries of Central and Eastern Europe to Western Europe will remain limited. The European Integration Consortium’s estimate of the number of persons who would move to the current EU after the introduction of free movement of labour - without taking account of the transition period of seven years - is 335 000 (0.1% of the current EU population) rising slowly over the following 30 years to reach a peak of about 1.1% of the population[7].
18. Besides, the present EU member countries have evident or at least imminent manpower shortages. Indeed, the population is ageing and generational renewal no longer seems assured. Free movement of manpower thus has economic advantages for these countries since intensification of migration could offset the population ageing process.
19. Numerous localised movements of frontier workers and seasonal labour are also recorded, pointing to a process of regional integration. It should be borne in mind that commuter migration, often called “suitcase commerce”, represents a major source of income for the countries of Central and Eastern Europe and constitutes a means of subsistence for many people. The visa requirement will hamper this small frontier business and could thus be a source of social tension in the countries concerned. What is more, the visa requirement is liable to slow down trade negotiations by preventing certain businessmen from travelling freely within Europe to meet their trading partners.
20. Another current migration-related phenomenon is the transformation of the Central and Eastern European countries from countries of origin to transit countries or even host countries. They are in fact becoming the intermediate destination for new migrants from Asia or Africa trying to reach Western Europe. But the countries of Central and Eastern Europe are not equipped to deal with these new waves of immigration and, without the help of the EU, are very likely to turn into a buffer zone.
II. Cross-border crime
21. The EU must also take part in the fight against the organised rings of illegal carriers while bearing in mind that the closure of the borders often forces migrants into illegality without deterring them from emigrating. Furthermore, big-time criminals will not be affected by the obligation to obtain a visa for travel in the EU as they do not go through the legal channels of communication. The visa requirement will actually create more constraints for honest citizens of the East European countries. It is indeed grossly unfair that the extension of some people’s freedom should work against that of others.
22. The threat of the organised crime originating from the countries of Central and Eastern Europe and the impact of mafias, often overstated by the Western media, should also be put in perspective. The theme of the Russian mafias is particularly in vogue in certain newspapers, rather reminiscent of a journalistic style harking back to the Cold War.
23. Lastly, a word should be said at this juncture about international terrorism. Since the attacks of 11 September 2001, uncontrolled immigration is too often equated with an influx of terrorists of every variety into our Western societies – a hasty, simplistic shortcut liable to encourage racism and xenophobia and empowerment of right wing extremist movements.
e. EU policies and their practical and psychological effects
24. The EU seems aware of the sometimes irrational nature of these fears and, such being the case, its policies at least formally seek to promote greater receptiveness to the Union’s new neighbours. Thus the official position at the conclusion of the European Council in Copenhagen on 12 and 13 December 2002 recalled that enlargement represented “an important opportunity to take forward relations with neighbouring states based on shared political and economic values”, and to “avoid new dividing lines in Europe”[8].
25. The recent Communication on Wider Europe[9]also advocates openness as the Commission declares that the aim is to “create a zone of prosperity and friendly neighbourhood – a ‘ring of friends’ – with whom the EU enjoys friendly, close and co-operative relations”[10]. In this respect, the Commission declares that persons crossing the outer boundary of the Union for legitimate purposes must not be prevented or delayed by formalities and controls at the borders. On the contrary, the Commission loudly and clearly asserts the need to strengthen “cross-border cultural links, particularly by putting in place mechanisms that allow workers to move from one territory to another”, providing for a “long-stay visa policy”, creating “an efficient and user-friendly system for small border traffic” and granting “visa-free access to holders of diplomatic and service passports”[11].
26. Paradoxically, the candidate states are under an obligation to adopt and stringently apply the Schengen acquis. The candidate countries’ reintroduction of the visa requirement for the nationals of their eastern and southern neighbours is liable to bring difficulties of a practical and psychological kind. After enlargement, freedom of movement for persons will in fact be more limited than 10 years ago where the countries of Central and Eastern Europe are concerned. Consequently, in Eastern Europe Schengen is associated not so much with freedom of movement as with the idea of “fortress Europe”, and the future neighbours of the EU feel marginalised and isolated in relation to “Schengenland”.
27. The demands connected with enlargement also inspire contradictory sentiments in the candidate states. For them, accession to the European Union constitutes a priority objective, but strict application of the Schengen acquis puts these countries in an uncomfortable position vis à vis their eastern neighbours. Here one must remember the unique cultural and historical links uniting certain ethnic communities which, after the fragmentation of the great empires, found themselves distributed over the territories of different states. Yet these communities have in common a tradition of free movement that has hitherto enabled them to preserve their unifying links and their cultural identity. The visa requirement may deal these very precious links a deadly blow and cause a real human tragedy for some families whose members would no longer be able to see each other as often and as freely as before.
28. Furthermore, the candidate countries’ sense of being “second-class countries” in the EU is palpable. Indeed, accession to the EU for the candidate countries in the first wave, i.e. those due to accede in 2004, does not mean that the new Member States will be permitted to apply the whole of the Schengen acquis automatically. That would require a specific Council decision after certification that the new MemberState had attained, among other things, the required standard of external border security. If the new candidate states do not become full-fledged members of Schengen on joining the EU, they might take it to mean that they are not equal partners. That is truer still given that some Member States of the EU benefit from a clause enabling them to ‘opt out’ of the Schengen acquis (United Kingdom, Ireland and Denmark).
29. Yet another consideration is that the distinction drawn between first and second wave candidates raises new dissensions among the countries of Central and Eastern Europe. The second wave countries are apt to feel estranged and shunned, which may possibly lead them to slow down the reforms embarked upon.
30. I would also draw attention to the problem of the readmission treaties requiring the countries to readmit the illegal immigrants who proceeded to the territory of other states signatories to these treaties after initially entering the former countries. Yet all too often these states of first entry do not have adequate resources to be able to reinstate the migrants under satisfactory conditions. The readmitting states then become the "prisons of Europe" and, in spite of themselves, turn into "concentration camps" as it were. Instead of forcing readmission agreements upon their neighbours, the EU Member States would no doubt be well advised to contemplate development programmes and proper integration policies that take migrants’ welfare into consideration rather than try to get rid of them as is now the case with the Roma groups for example.
31. May I recall finally that the whole issue of freedom of movement has far wider geo-strategic implications for the entire continent of Europe. It is in fact imperative to avert the formation of new dividing lines in Europe, for the “bloc” logic is anachronistic. It is up to the Assembly to abolish this anachronism completely by speaking out in favour of openness and against exclusion.
f. Improvements proposed by the Political Affairs Committee
32. Accordingly, it rests with the Council of Europe to be a participant and contributor in building a genuine area of freedom, security and justice spanning the continent. In order to create such an area, the Political Affairs Committee recommends adopting a sequential, pragmatic procedure in three phases. In the short term, it is a matter of urgency to find technical solutions to the problem of visas. In the medium term, common institutions interlinked across the entire continent are to be put in place. These institutions should foster co-operation in respect of immigration and visas, police and judicial co-operation, and harmonisation of national legislation. Finally, in the long term, all measures adopted must be directed at creating a genuine European common area of freedom, security and justice founded on the cultural integration of the wider Europe.
33. Specifically, the Rapporteur would put forward some proposed measures that might be worth examining, aimed at greater freedom of movement in the wider Europe. These are chiefly as follows:
i. Possibility of obtaining a visa directly at the border for persons who have already obtained a visa earlier and are not recorded in the SIS database.
ii. Introduction of a class of visa for one day (single-day entry visa) which would enable nationals of the EU’s new neighbours to travel within the adjacent countries only.
iii. Abolition of the visa requirement: it is possible to envisage alternatives whereby no visa at all would be necessary and just the particulars in the passport would suffice when crossing the borders. For instance, it would be a matter of checking the details entered in the passport as to date of departure from the EU in order to ascertain whether or not the duration of the previous journey exceeded what was legally permissible. Entry into the EU would thus be denied those nationals having previously spent too long in the territory the EU.
34. The Rapporteur further considers that the EU’s development policy on behalf of its new neighbours should be mentioned. Among other effects, this policy should seek to reduce income differentials and disparities in the standard of living between the EU and its neighbours; this would significantly counteract the pressure to emigrate.
35. Lastly, certain points in the draft recommendation of the Committee on Legal Affairs and Human Rights deserve some slight clarification. For instance, paragraph 10.ii raises some questions. One may wonder, prima facie, whether it is an irrefragable presumption; if so, it would be tantamount to an exemption from the visa requirement.
36. In the same paragraph, where reference is made to “the presumption being strengthened” in relation to states also parties to Council of Europe treaties in the field of public order and security, this could in fact be taken as synonymous with an irrefragable presumption.
37. If on the other hand paragraph 10.ii only purports to establish a refutable presumption, it should specify the criteria on which this presumption can be refuted, by using the following phraseology for instance:
i. ”Any refusal to issue a visa must be founded on substantiated reasons meeting specific criteria which would stand a test of transparency”.
38. In conclusion, the Political Affairs Committee in no way contests the need to guarantee a minimum standard of security in the countries of the Schengen area. However, the measures taken in respect of visas and border controls, in particular, should be proportionate to the security goals pursued. Such measures must in no circumstances restrict the freedom of movement of foreign nationals in a disproportionate, unjustified or humiliating way. Thus the art of achieving a successful enlargement hinges entirely on a judicious balance between security and freedom of movement. The absolute priority is to prevent new dividing lines from appearing in Europe.
Reporting Committee: Committee on Legal Affairs and Human Rights
Committee for opinion: Political Affairs Committee.
Reference to Committee: Reference 2790, 27 January 2003
Opinion adopted by the Committee on 11 December 2003
Secretariat of the Committee : Mr Perin, Mrs Ruotanen, Mr Chevtchenko, Mr Dossow
[1] See Doc. 9979 rev. tabled by the Legal Affairs and Human Rights Committee
[2] Malcolm Anderson, « Introductory Statement » in M. Anderson, J. Apap & C. Mulkins, “Policy Alternatives to Schengen Border Controls on the Future EU External Frontier – Proceedings of an Expert Seminar”, Warsaw, 23-24 February 2001, p.4.
[3] Catherine Withol de Wenden, L’Europe des migrations, ADRI, La Documentation française, Paris, 2001. At present the Schengen area comprises all the EU Member States except the United Kingdom and Ireland, with in addition Norway and Iceland which enjoy associate status.
[4] See Article 3 of the Protocol to the Treaty of Amsterdam integrating the Schengen acquis, and the Protocol to the Treaty of Amsterdam on the position of Denmark.
[5] See Article 4 of the Protocol to the Treaty of Amsterdam integrating the Schengen acquis, and the Protocol to the Treaty of Amsterdam on the position of the United Kingdom and Ireland.
[6] The President of Ukraine, Mr Kuchma, was the first to speak of a “paper curtain” at a conference in Yalta in September 1999. See Paul Goble, “Giving Yalta a New Meaning”, RFE/RL NEWSLINE Vol. 3, No. 178, Part II, 13 September 1999.
[7] Report of Wim Kok to the European Commission, “Enlarging the European Union – achievements and challenges”, 26 March 2003, pp. 38-39.
[8] Commission of the European Communities, “Copenhagen European Council 12 and 13 December 2002, Presidency Conclusions”, 14/12/2002, DOC/02/15, para. 22.
[9] Commission of the European Communities, Communication from the Commission to the Council and the European Parliament, “Wider Europe – Neighbourhood: A New Framework for Relations with our Eastern and Southern Neighbours”, 11.3.2003, COM(2003) 104 final.
[10] Ibid.
[11] Ibid.