THE EUROPEAN COMMISSION, SCHENGEN, AND CONSTRUCTION OF EU BORDERS
By
Valentina Kostadinova[1]
The aim of this paper is to present an account of how the discourse of the European Commission on Schengen has contributed to the construction of EU borders. In order to do this, the paper is divided into four main parts: the first one provides a brief overview of my PhD project, thus situating this study within its wider context; the second one gives a summary of the evolution of Schengen; the third one presents the concrete findings of how the discourse of the European Commission on Schengen contributes to the construction of EU borders. I conclude with a summary of the findings.
Theoretical and Methodological Issues
My PhD project critically examines the effects of European integration on borders. Integration efforts imply the taking down of previously existing dividing lines and the establishment of common space. Given the position of the European Union (EU) as the most advanced integration project today, it should come as no surprise that the trend towards abolishing borders and the creation of unified areas is most evident there. This can be exemplified with the arguments of some studies, such as the English School and the literature on EU citizenship, that regard the EU respectively as a prototype of a world society and trans-national citizenship. However, I argue that rather than the mere disappearance of borders, which is implied by such arguments, what is in fact taking place is the more complex process of border re-construction. Hence, my premise is that even in the EU borders will continue to have great significance but that their location/s and the way they operate has changed.
Therefore, I view borders as social constructions created through the inter-actions of numerous participants in a variety of sites. In that respect, one of the places that have important input in the re-creation of EU borders is the European Commission. Firstly, this is a result of the institutional framework of the Union, which puts it in a unique position to influence the framing of legislative proposals. Due to the Commission being the sole legislation initiator in the First pillar and of it sharing this right with the Council in the Third pillar, its agents have certain power to influence the norms for the negotiation of the EU’s policies,[2] thus (among other things) exercising important influence on the borders being established. Secondly, the Commission is one of the significant supranational institutions of the Union, therefore it can be expected that it will be a driving force for the abolition of existing borders. Thus, a study focused on the borders being constructed through its discourse will highlight the current limitations for de-bordering and will highlight the persisting obstacles to the establishment of a world society and transnational citizenship, providing instead a comprehensive account of the transformations that are occurring at EU borders.
In order to examine these transformations, I interrogate a variety of Commission documents on the Policy area in question - Schengen and border controls. More specifically, I look into its Communications, Green and White Papers, speeches of its officials, etc. and conduct a double reading of them. In the first reading I re-construct in the most favourable possible way the discourse, re-state the overall meaning contained in it and interpret what effects does it have on EU borders. In the second reading, however, I try to find out where the discourse breaks – what are the inconsistencies and silences in it that lead to the production of meaning not compatible with the meaning implied by the first reading. Again I pose the question what effects on borders does this have. In distinction to the first reading, however, when the texts clearly talk about de-bordering, in the second reading there are contradictory trends that lead to border construction and re-construction.
In my study I understand borders as the dividers between this that is inside (included) and that that is outside (excluded).[3] More specifically, I distinguish between territorial and identity borders (the former delineating divisions marked on the surface of the Earth, while the latter are marking separations between groups of people made on the grounds of their various characteristics). In both of these types the Commission discourse can have three major effects – it can abolish previously existing borders (what I term de-bordering); it can construct a new border at the outer edges of the EU (what I term external border construction) and as a result of the inconsistencies and silences in its discourse it can re-construct internal EU borders. The present paper studies how these are manifested in the Commission articulations on border controls under Schengen.
Evolution of Co-operation Under Schnegen and the Commission prerogatives in it. Articulations with Bordering Effects
Before I provide a detailed analysis of the Commission discourse on border controls, in this part I give an outline of the evolution of Schengen co-operation paying particular attention on how Commission powers have developed and which are its main articulations with bordering effects. The question of border controls has already attracted significant scholarly attention and my findings by and large confirm the arguments already made. However, my aim of providing a comprehensive account of the way in which the discourse of the Commission contributes to the construction and re-construction of borders requires an engagement with this important area of border-production.
There are three main periods in the evolution of co-operation on border controls. The first is from 1985 (when the Schengen Agreement was signed) to 1992 when the Treaty of the EU was signed. The second period is between 1992 and 1997 when the adoption of Amsterdam Treaty. The third one is from 1997 to present.
During the first period, the foundations of co-operation on abolition of border controls were laid down. Importantly, this was done outside the framework of the European Community; it was an intergovernmental area of co-operation. As such the European Commission had very limited role and its powers of legislative initiative were not applicable to this field. Nevertheless, the Commission documents from this period, reveal that it regards the question of abolition of border controls as very closely related to an area central to the integration project, within which it has important competences – free movement of people, which is evident from the linking of the two issues in some Commission documents from this time.[4] At that time free movement of people acquired central importance as a result of the adoption of the Single European Act (SEA) and its aim of establishing Internal EC Market by 1992. The second period of co-operation on border controls is marked with its inclusion into the EU framework (although under the Third pillar where the Commission only shares its legislative initiative with the Council) and the establishment of EU citizenship under the Treaty of EU, which guarantees every EU citizen the right to move and reside on the territory of the Member States.[5] This constitutes an extension of the right of workers of one EC Member State to take employment in another.[6] This has enabled the undertaking of further actions that abolish border controls between EU’s Member States. During these two periods, the main Commission articulation with bordering effects is the goal of establishment of an ‘area without internal frontiers’.
The third period is marked with the inclusion of a large number of Third pillar issues (including border controls) into the First pillar, thereby making the Commission the sole legislation initiator in this field (however, after a five year transition period during which it still shares this prerogatives with the Council). During this time a new articulation with bordering effects is advanced – the creation of an ‘area of freedom, security and justice’.
The Effects on Borders by Commission Discourse on Border Controls
A re-construction of Commission discourse on Border Controls reveals that in this Policy area, in distinction to other fields, such as Social Policy, there are two obvious trends – de-bordering of the internal space and the construction of the EU external border. That is why in this Policy area these two trends form the first reading of the Commission documents. The de-bordering and the creation of a common space without internal border controls comes as a result of the articulation of measures that aim at implementing in practice the rights of EU citizens to movement and residence within the territory of another Member State; the current regime for free movement of TNCs and the establishment of European identity. Illustrations of each of these from the discourse of the Commission are the following articulations: “The complete abolition of physical frontiers for individuals exercising their right of freedom of movement necessarily implies the complete abolition of controls on all individuals who cross internal borders, irrespective of their nationality”[7] and “Guaranteed permanent residence for Union citizens who have chosen to settle long-term in another Member State strengthens the feeling of holding a common citizenship…”[8]
There is one significant difference in relation to the bordering effects of Commission documents on Third Country Nationals (TCNs) and those abolishing internal borders for EU citizens. While the provisions for the latter are applicable to all Member States and in that respect they result in de-bordering of the whole territory of the EU, the former do not apply in the same way on the whole area of the Union (i.e. UK, Denmark, Ireland).
The second major trend evident in the Commission discourse on border controls is the establishment of external EU border. An analysis of Commission documents shows that this is achieved through creating new regime for entering the territory of Schengen, which arose as a result of the perceived need to combat threats posed to the internal security of this area. At one level these articulations establish the identity borders of the Union through constructing particular Others – organized crime, terrorism, etc. On another level, new physical border controls are erected at the external EU frontiers. It is here that the distinction between EU citizens and TCNs is very evident because the former have the right to enter the Union territory, while the latter do not. It is this distinction in rights as well as the concrete measures undertaken for regulating the regime for entry into the EU territory that has constructed the external border of the Union. More specifically, in the Commission discourse this is achieved through the gradual establishment of a supranational regime for regulating the entry into the EU as exemplified by FRONTEX, VIS, SYS, etc. These are mechanisms for supporting and facilitating more co-operation between the relevant authorities of the Member States. The second main way in which the Commission discourse establishes the external EU border is through the efforts towards creating a body of common legislation, which among other things should assure the harmonized application at operational level of practices and procedures (i.e. Common Visa Policy). The discourse of the Commission shows that the achievement of the goal of common legislation in practice has taken the form of providing detailed guidelines on a number of technical issues, such as requirements of the uniform formats for visas and lists of countries whose nationals should have visas when entering the Union, etc.
Despite the clear trend in the Commission discourse on border controls towards de-bordering an analysis of its documents reveals that the opposite trend that contributes to the re-construction of internal borders in the EU is still present. Internal borders are re-constructed through the existence of contradictions and silences in the Commission discourse on border controls for TCNs.
As far as the latter is concerned, currently not all border controls for TCNs are completely unified, which creates the conditions for the re-emergence in Commission discourse of references to ‘Member States’ national legislation’, which in turn re-constructs internal borders in the EU. The first important way in which this internal border is re-constructed in the Commission discourse is through containing provisions for harmonization of conditions of issuing visas for entry into the EU’s territory only for short stays. In effect this means that the conditions for issuing of visas for long stays into the territory of the Member States remains a prerogative of the relevant authorities of the state in question. The lack of harmonization efforts in certain types of visas opens the door for references to the ‘Member States’. In turn, such articulations point to the existence of national divisions within the Union, which is a sign of the persistent relevance of internal borders and border controls in the EU despite the efforts towards their abolition.
The second main way in which Commission discourse on border controls can be interpreted as contributing to the re-construction of internal borders in the EU is through the inconsistencies in the articulations in its documents. There are two main examples of that – the particular provisions of the procedure for applying for Schengen visas and the discourse on the Common Asylum Policy. Both contain references to ‘Member States’ that in effect confirm the relevance of the issue the territory of which country exactly is concerned. In the Common Asylum Policy this is articulated through the need to determine the Member State responsible for handling each asylum application and in the Common Visa Policy – the principle is that the sort-term visa application should be issued by: “The Member State which is the main destination... If it is not possible to determine that destination, the Member State of first entry shall be responsible.”[9] Such articulations imply that it is still an important question which part of the single area will deal with the case in hand, which in turn re-creates the existing territorial borders between the EU Members, thus signaling the continued presence of internal Union frontiers and the accompanying them border controls.
Another provision that has internal border-constructing effect is the stipulation that persons moving within the frontier-free area for a period between three and six months are not entitled to remain in the territory of a single Member State for longer than three months.[10] Again, within a unified territory that allows for free movement of people, such as Schengen, such stipulations re-create the divisions that have existed prior to the launch of integration efforts. As such, these provisions work towards undermining the establishment of a single area and instead through confirming the relevance of the issue of which Member State’s territory the TCN/s are on, re-construct internal borders and border controls within the EU.
Summary of the Findings
All in all, the analysis of Commission discourse on border controls reveals several important trends. Firstly, in this field, the Commission discourse is primarily concerned with physical borders, rather than identity ones. Secondly, the discourse in this Policy area is unique in terms of the fact that it contains clear references to ‘external borders’ as well as to de-bordering. As a result of that, both of these trends constitute the first reading of the Commission documents. Thirdly, as a result of integration efforts and co-operation within Schengen, new categories of people were established for whom in the EU there are borders that are different and operate on principles that are sometimes distinctive to the previously existing national borders of the Member States. While for EU citizens the trend towards de-bordering is most evident, for TCNs the emergent regime is more complex and involves the establishment of a tangible external border and the existence of still not abolished internal EU borders between the Member States. Given the evolution of co-operation in this field, however, the Commission has not always been in the position to heavily influence the developments evident in its discourse and has instead often only reflected them in its documents.
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[1]The author is a PhD candidate at the Department of Political Science and International Studies at the University of Birmingham. This is a working draft and no citation is permitted without the prior consent of the author.
[2]Wallace cited in Christian Lequesne, ‘The European Commission: A balancing Act between Autonomy and Dependence’ in Karlheinz Neunreither, Antje Wiener (eds.), European Integration after Amsterdam – Institutional Dynamics and Prospects for Democracy (Oxford: Oxford University Press, 2000), pp. 36-51, p. 39
[3]This is the definition provided in T. Christiansen; F. Petito; B. Tonra, ‘Fuzzy Politics around Fuzzy Borders: the European Union’s Near Abroad’, Cooperation and Conflict, 35: 4 (2000), pp. 389-415, p. 391
[4] See for example European Commission, ‘Proposal for a European Parliament and Council Directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States’, COM (2001) 257 final, 29.06.2001, Article 6, point 1
[5]See Part Two Citizenship of the Union in the Maastricht Treaty, pp. 5-6, available at visited on 28.07.2008