EU border management after the Lisbon Treaty
; Jorrit J. Rijpma
This paper will take the title of the conference “The Boundaries of EU law after the Lisbon
Treaty” somewhat literally by looking at how the Lisbon Treaty will affect the management
1of the EU‟s external borders. The underlying theme of this paper is the distinction between legislation and operational cooperation in this policy field. Although external border management may be considered exemplary for developments in the Area of Freedom, Security and Justice (AFSJ) as a whole, it is unique in forming the only “police power”
currently covered by the First Pillar of the EU. This paper will first look at the meaning of “EU external borders” and the current treaty framework for the management thereof. It will then see how the Community has made use of its powers. It will continue with an examination of the likely changes the Lisbon Treaty will bring about. The paper will conclude with a short overview of how the future of management of the external borders is taking shape in the
2absence of ratification of the Lisbon Treaty.
2. Current Treaty framework for the management of the external borders
It was not until the Treaty of Amsterdam that the Community acquired powers for the regulation of the external borders, through the transfer of policies from the Third Pillar to Title IV EC and the transformation of the Schengen acquis into European law. Article 62(2)(a)
EC confers upon the Council the power to adopt measures on the crossing of the external borders of the Member States, establishing standards and procedures to be followed by Member States in carrying out checks on persons at such borders. On the basis of Article 66 the Council can take measures to ensure cooperation between the relevant departments of the
; Researcher at the Law Department of the European University Institute, Florence. 1 For the purpose of this paper the term “management of the external borders” is understood as the processes and procedures associated with border checks, which take place at authorized crossing points, including airports, and border surveillance, which is carried out on the so-called green (land) borders between authorized crossing points as well as along the blue (sea) borders. This definition is largely the same as given by Hills, who however does not include sea borders: Hills, A., „The rationalities of European Border Security‟, 15 European Border
Security 1 (1996), 69. 2 The external relations of EU border management will be outside the scope of this paper, although it must be stressed that the external dimension of EU border management is becoming increasingly important.
administrations of the Member States in the areas covered by Title IV EC, as well as between
3 those departments and the Commission.
The transfer of powers in JHA to the First Pillar has been both partial and gradual. Article 67 EC provided for a transitional period of five years in which the Commission shared its right of initiative with the Member States. This period ended on 1 May 2004, although the Commission remains under a duty to take into account requests of the Member States to submit proposals to the Council. During the transitional period decision-making in the Council was unanimous, with a right of consultation for Parliament. On the basis of the second indent of Article 68(2) EC, the Council extended, as of 1 January 2005, the co-
4decision procedure to Article 62(2)(a) EC.
Article 68 EC restricts the role of the European Court of Justice (ECJ) under Title IV EC. Only national courts from which no further judicial remedy is possible have a duty to refer preliminary questions to the ECJ. The second paragraph excludes the Court‟s
jurisdiction from measures taken under Article 62(1) EC - the legal basis for measures related to the abolition of internal border controls - in as far as they relate to the maintenance of law
5and order and the safeguarding of internal security.
The most likely interpretation of Article 68(2) EC is that it forms the Community equivalent of Article 35 EU, aimed to prevent the Court from pronouncing itself on the legality and proportionality of Member States law enforcement authorities. Peers has however argued that the article would not prevent the Court from ruling on the interpretation or validity
6of Community acts in a preliminary ruling procedure. Interestingly, its wording would also
not prevent the Court from pronouncing itself on the correct interpretation of measures based upon Article 62(2) EC, relating to the external borders. It would therefore be possible for the Court to rule for instance on the conformity of border guards‟ actions with such legislation,
3 No agreement was reached on the legal basis for the Schengen Information System (SIS) and consequently it was brought under the Third Pillar, on the basis of Article 2, fourth paragraph, of the Schengen Protocol. 4 Council Decision 2004/927/EC providing for certain areas covered by Title IV of Part Three of the Treaty establishing the European Community to be governed by the procedure laid down in Article 251 of that Treaty, OJ 2004, L396/45. In accordance with Protocol No 35 on Article 67 EC, the Council has acted since 1 May 2004 by qualified majority, on a proposal from the Commission and after consulting the European Parliament, in order to adopt the measures referred to in Article 66. 5 A similar exception is contained in Article 2(1) of the Schengen Protocol. 6 Peers, EU Justice and Home Affairs (Harlow, Longman, 2000), 47. Case C-150/05, Van Straaten  ECR
I-9327, seems to confirm this approach. In this case the ECJ ruled on the correct interpretation of the CISA which lay at the basis of an entry into SIS made by Italian enforcement authorities, giving the referring Dutch court the tools to order the removal of the entry.
even if this would run counter to the Member States‟ likely intention to exclude their
enforcement authorities from the scope of the Court‟s powers of review.
It is imperative to realise that due to the opt-out of the United Kingdom and Ireland, the external borders of the Schengen area do not coincide with the “external borders” of the area
in which there is free movement for persons having this right under Community law. Likewise the external borders of the Schengen area, because of the association with the Schengen acquis of Norway, Iceland, Switzerland and Liechtenstein, as well as the exclusion of the non-European territories of the Schengen Member States, do not coincide with the external borders of the EU.
It is the Schengen external borders, as initially defined in Article 1 of the Schengen Implementing Convention CISA, that form the object of Community competence. Whilst at the Schengen external borders, border procedures are regulated by EC law, at the non-Schengen EU external borders it is the national law of the Member State in question that
7 It is determines the procedure to be followed, albeit within the limits imposed by EU law.important also to point out that the Schengen external borders are defined by reference to the Member States‟ external borders. The new Article 69(4) FEU underlines once more that the
powers currently contained in Article 62 EC leave the competence of Member States as regards the geographical demarcation of their borders, in accordance with international law,
3. Legislation v. executive action
The AFSJ is generally characterised by executive action and operational coordination as
9opposed to the “legislation-centred constitutional logic of the EU”. Bearing in mind the
communitarisation of competences for the management of the external borders, this section will consider in how far this qualification remains valid in respect of this policy. To what extent does Community action in this field remain distinct from that in other areas covered by the First Pillar?
7 These limits then concern the way in which EU citizens and their relatives with border crossing rights based on the EU‟s fundamental freedom of free movement are to be treated. 8th This was also stipulated in the 9 recital to Decision 2004/927/EC, supra note 4. Of course, Member States will
always be under the obligation to comply with EU law in exercising this competence. See in this respect Case C-146/89, Commission v. UK  ECR I-3533 on the extension by the UK of its territorial sea and the effects thereof on the activities of fishermen from other Member States. 9 Walker, N., „In Search of the Area of Freedom, Security and Justice: A Constitutional Odyssey, in: Walker, N. (ed.), Europe’s Area of Freedom, Security and Justice (Oxford, Oxford University Press, 2004), 21-22.
In order to answer this question, one should distinguish between executive action which has effects in law, i.e. which creates enforceable rights and obligations for third parties, and executive action which does not. Implementation of legislation by the Commission, the Council or regulatory agencies with decision-making power, would fall under the former. Technical and scientific assistance, as well as operational coordination, be it by the Commission, the Council or a regulatory agency, would be covered by the latter.
Walker in his discussion of the legislative/executive nature of the AFSJ opposes
10 He legislation to executive and operational action, without distinguishing the latter two.argues that both refer to the “post-legislative (or in some cases non-legislation-based) phase of policy application and implementation.” On the one hand executive is used to refer to “high”
11governmental activity and operation to “low” bureaucratic or policy professional activity. In
the discussion on the executive nature of the AFJS one tends to underline the “on the ground” or “practical” nature of EU activity. In that context however, the reference to “executive”
12often carries with it the notion of law enforcement authorities‟ powers of coercion.
As Hoffman has argued the extent of the European administrative space can only be
13appreciated by looking beyond administration‟s implementation activity. By defining the
nature of EU executive action more precisely, the distinction proposed between executive action with has legal effect and that which does not allows us to do just that. Considering that the EU functions as a system of multi-level or network governance, also in the AFSJ, a distinction based on the legal effect of EU administrative activity is preferred over a
14distinction based on the level at which this executive action takes place.
Since the expiry of the transitional period, legislation under Title IV EC now generally confers the power to take implementing measures on the Commission, under the supervision
15of a comitology committee. The ECJ has shown that it will closely scrutinize any retention
16of implementing powers by the Council. In relation to the more “factual” EU activity
implementing Community law there is however an absence of a clear legal framework. This
10 Walker, N., supra note 9, 21-22. 11 Ibid. 12 Ibid. 13 Hoffman, H., „Mapping the European administrative space‟ 31 West European Politics 4 (2008), 665 14 Kohler-Koch, B. and Rittberger, B, „Review Article: The “Governance Turn” in EU Studies,‟ 44 Journal of
Common Market Studies (Annual Review), 27-49. See also: Eder, K. and Trenz, H.-J., „The Making of a
European Public Space: The Case of Justice and Home Affairs,‟ in Kohler-Koch, B. (Ed.), Linking EU and
National Governance (Oxford, Oxford University Press, 2003), 111-134. 15 See Article 202, third indent EC and Council Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission, OJ 1999, L184/23, as amended by Council
Decision 2006/512/EC, OJ 2006, L200/11. 16 See the Courts ruling in Case C-133/06, European Parliament v. Council, ECR-I 3189, moving away from its
more cautious approach in Case C-257/01, Commission v. Council,  ECR I-345.
may prove particularly problematic in relation to operational coordination in the AFSJ, where the cooperation between Member States may involve the exercise of coercive powers against individuals.
3.1 The building of a Schengen external borders acquis
In the first few years following the entry into force of the Treaty of Amsterdam, there was relatively little legislative activity in the field of external borders management. Regulations concerning local border traffic and common standards for the surveillance of land and sea borders envisaged in the 1999 “Schengen Regulations Action Plan” of the Council‟s Frontiers
17 Working Party were not adopted until 2006.
Of course a considerable acquis was already in place in the form of those parts of the
Schengen acquis that were incorporated in the EU legal order by the Treaty of Amsterdam
18and that were assigned to the new legal bases provided for by that Treaty. It was the
impending enlargement however, reinforced by the sharp increase in sub-Saharan migration across the Mediterranean from 2000 onwards and the events of 9/11 that brought borders back
19on the EU‟s policy agenda. The December 2001 JHA Council meeting agreed on the
following four points: 1) to strengthen and standardise European border controls 2) to assist candidate States in organising controls at Europe's future external borders, by instituting operational cooperation 3) to facilitate crisis management with regard to border control and 4)
20to prevent illegal immigration and other forms of cross-border crime. Again without making
any reference to possible legislative initiatives, the Laeken European Council Conclusions of 14 and 15 December 2001 asked the Council and the Commission to:
“ (…) work out arrangements for cooperation between services responsible for external border control and to examine the conditions in which a mechanism or common services to control external 21borders could be created (...).”
17 Council Document 12479/99. 18 Council Decision 1999/435/EC concerning the definition of the Schengen acquis, OJ 1999, L176/1 and
Council Decision 1999/436/EC determining the legal basis for each of the provisions or decisions which constitute the Schengen acquis, OJ 1999, L176/17. 19 Monar, J., „Justice and Home Affairs‟, Journal of Common Market Studies (Annual Review 2002/2003), 124.
See also De Haas, H., „The Myth of Invasion: Irregular migration from West Africa to the Maghreb and the European Union‟ (Oxford, IMI Research Report, October 2007), 15, who links this increase to a major anti-immigrant backlash in Libya in 2000. 20 Council Document 14581/01, 13. 21 Presidency Conclusions of the Laeken European Council, 14 and 15 December 2001, Nr. 00300/1/01, point 42.
In response, the Commission came forward with its 2002 Communication on the integrated management of the external borders. In this communication for the first time reference was made to the establishment of a “common corpus of legislation” in relation to the management
22 On a short term, the most important measures envisaged of the common Schengen borders.
remained the recasting of the Schengen acquis in a regulation - the Schengen Borders Code -
23and the long overdue adoption of measures on local border traffic.
The Communication further stated by having recourse to Article 66 EC, the Community budget should contribute to the financing of a common policy. A financial burden sharing system should be established as a run-up to the creation of a complementary operational burden sharing mechanism. The operational mechanism was to take the shape of a European Corps of Border Guards; a body endowed with a “genuine operational inspection function”, which it could exercise either at the request of a Member State or of its own
24initiative. The Council‟s Action Plan for the Management of the External Borders of the
Member States largely took over the Commission‟s proposals, but was understandably much
25more careful as regards the setting up of a European Corps of Border Guards. It generally
put much less emphasis on the eventual need for common legislation and financing, focussing instead on measures of an operational rather than legal nature giving the plan a very
Notwithstanding this practical approach, a wide range of legislative measures has been adopted which determine, either directly or indirectly, the way in which the Schengen external borders are managed. These measures do not necessarily relate to the act of crossing an external border exclusively, nor do they fully coincide with those envisaged in the Commission Communication or the Council‟s Action Plan. This if first of all because the Court has construed the notion of “Schengen developing measures” broadly, to the effect that all measures that judged by their content and purpose render more effective parts of the
27Schengen acquis qualify as such. As a result, measures developing the Schengen acquis on
the external borders adopted on the basis of Articles 62(2)(a) EC and Article 66 EC cover a
22 COM(2002) 233, Commission Communication „Towards Integrated Management of the External Borders of the Member States of the European Union‟, 12. 23 Article 3 Convention Implementing the Schengen Agreement (CISA). 24 COM(2002) 233, supra note 22, 13. 25 Council Document 10019/02, point 120. The plan was officially endorsed in the European Council
Conclusions, Seville, 21-22 June 2002, point 27. 26 Monar, J., „The Project of a European Border Guard‟, in: Caparini, M. and Marenin, O., Borders and Security
Governance: Managing Borders in a Globalised World (Münster, LIT Verlag, 2006), 181. 27 Case C-77/05, United Kingdom v. Council  ECR I-1145, para. 85 and Case C-137/05, United Kingdom
v. Council  ECR I-11593, para. 56.
broad range of legislative initiatives from the establishment of the EU‟s border agency
Frontex to common requirement regarding EU passports. Moreover, a considerable number of measures that find their legal basis in other areas of competence under Title IV EC (such as irregular migration, visa or asylum) or under the Third Pillar, include provisions which affect the way in which the Schengen external borders are managed. As such, the rules that make up the “Schengen external borders acquis” are to be found across a broad range of measures,
which can be roughly divided in five categories.
One may first identify a Schengen border acquis in a narrow sense: the measures that
establish the border crossing regime at the Schengen external borders The essence of EU activity in the area of border management is to ensure the respect for and correct application of these measures. The most important piece of legislation in this category is of course the
28 A second category of legislative measures consists of Schengen Borders Code (SBC).
measures that aim to establish a degree of financial burden-sharing as regards the management of the Schengen external borders. Here the most important instrument is the
29External Borders Fund (EBF). A third category of measures relates to the establishment of centralised databases for the purpose of migration and border management: the Schengen
30Information System (SIS), the Visa Information System (VIS) and Eurodac. A fourth
31category is made up of measures that penalise illegal entry, smuggling and trafficking.
The last category, institutional measures for the coordination of operational cooperation, is closely linked to the establishment of operational cooperation for the purpose of the management of the external borders. Operational cooperation has in fact been the cornerstone of the EU‟s policy for the management of the external borders. Many of the
measures in the previous categories enable or facilitate operational cooperation between border guard authorities, through financial support or information exchange.
28 Regulation (EC) No 562/2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), OJ 2006, L105/1. See for a discussion for the Schengen
Border Crossing Regime Chapter VI. 29 Decision 574/2007/EC establishing the External Borders Fund for the period 2007 to 2013 as part of the General programme „Solidarity and Management of Migration Flows‟, OJ 2007, L144/22. 30 Regulation (EC) No 1987/2006 and Council Decision 2007/533/JHA on the establishment, operation and use of the second generation Schengen Information System (SIS II), OJ 2006, L381/4 and OJ 2007, L205/63. These
Regulations repeal all provisions from the CISA regarding the SIS, although SIS II remains to become functional; Regulation (EC) No 767/2008 concerning the Visa Information System (VIS) and the exchange of data between Member States on short-stay visas, OJ 2008, L218/60; Council Regulation (EC) No 2725/2000 concerning the
establishment of „Eurodac‟ for the comparison of fingerprints for the effective application of the Dublin
Convention, OJ 2000, L316/1. 31 See for instance: Council Directive 2002/90/EC defining the facilitation of unauthorised entry, transit and residence, OJ 2002, L 328/17 and Framework Decision 2002/946/JHA on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence, OJ 2002, L328/1.
The 2002 Commission Communication put much emphasis on the concept of
operational burden sharing, pooling not only financial but also human and technical resources
32 The Council‟s and proposing the establishment of a European Corps of Border Guards.
Action Plan on the External Borders had carefully concluded that that “institutional steps
could be considered”, which “could include a possible decision on the setting up of a
33European Corps of Border Guards.”
The most important steps for the operational cooperation at the external borders, if not from a legal point of view, then from a symbolic one, has been the adoption of Council Regulation (EC) No 2004/2007 establishing a Community agency for the coordination of
34operational cooperation at the external borders of the Member States (Frontex). This
35regulation was subsequently amended by Regulation (EC) No 863/2007. Both regulations
are based on Articles 62(2)(a) and 66 EC. As the Court confirmed in Case C-77/05, the Frontex regulation constitutes a development of that part of the Schengen acquis in which the
UK and Ireland do not participate for which reason they have been excluded from the
36Agency. The Commission‟s proposal for an amendment of the Frontex Regulation added that the UK and Ireland were to be excluded since the agency was to be regarded as a measure of solidarity applicable only to the countries participating in the Schengen acquis on external
The road to Warsaw, from where the Agency has been functioning since 2005, has been
38winding. The Council‟s Action plan focused on practical initiatives, rather than legislative measures. Informed by an Italian-led feasibility study into the setting up of a European Border Police, it advocated the establishment of a “polycentric” network structure consisting of ad-
32 COM(2002) 233, supra note 22. 33 Council Document 10019/02, point 120. 34 Article 64(2) EC, Article 8a, Council Regulation (EC) No 2007/2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, OJ 2004, L349/1. 35 Regulation (EC) No 863/2007, establishing a mechanism for the creation of Rapid Border Intervention Teams and amending Council Regulation (EC) No 2007/2004 as regards that mechanism and regulating the tasks and powers of guest officers, OJ 2007, L199/30. 36 Case C-77/05, supra note 27. 37 SEC(2006)953, 2-3, accompanying COM(2006)401 final, adopted as Regulation (EC) No 863/2007, supra
note 35. Here one could argue however that solidarity is a broader value underpinning Member States‟
cooperation in general, as expressed in Article 2 EC. Under the Lisbon Treaty solidarity underpins all cooperation on asylum, immigration and external borders, see Article 61(2) TFEU. 38 Council Decision 2005/385/EC designating the seat of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, OJ 2005,
39 It called for joint hoc centres specialized in different areas of border management.
operations of national border guard agencies at the external borders and the creation of national contact points. The Council further followed the Commission‟s suggestion to set up a
Common Unit of External Border practitioners falling under the Council‟s Strategic Committee on Immigration, Frontiers and Asylum (SCIFA).
The Common Unit (or SCIFA+) consisted of the members of SCIFA and the heads of Member States‟ border control services. Its task was to oversee the development of a common policy on the external borders and act as a coordinator for the network structure and the joint operations proposed in the Action Plan. It was explicitly mentioned that SCIFA+ did not encroach upon the Commission‟s powers in this field, stating that it would not involve
40legislative proposals nor implementing measures in the meaning of Article 202 EC.”
Between July 2002 and March 2003, SCIFA+ approved a total number of 17 different
41programmes, ad-hoc centres, pilot projects and joint operations. The Council has always
maintained that these constituted intergovernmental cooperation arrangements between Member States. Depending on how one defines the term “measure” in Articles 62(2)(a) and
66 EC, one could argue that the Treaty does not directly confer upon the Council the competence to engage in such coordinating activities, but merely gives the Community
42legislator the power to adopt legislation for that purpose. This is because the EC Treaty
lacks an equivalent of Article 36 EU which establishes a Coordinating Committee (Committee Article Trente-Six, CATS) made up of senior Member State officials in JHA with specific coordinating tasks under the Third Pillar. The presidency‟s report on the
implementation of the joint activities expressly referred to a lack of legal basis for the setting
43up of ad-hoc centres and the carrying out of common operations.
The Presidency report further listed a number of concerns in relation to the operational cooperation which ranged from a lack of suitable planning, preparation and central
44operational coordination to adequate evaluation. The Commission Communication in view
of the Thessaloniki European Council noted that the limitations of SCIFA+ as a working party
39 Monar, J., supra note 26, 177. 40 Council document 10019/02, point 47. 41 Council Document 14708/02. 42 As Monar has noted this study was “shaped by the input of national experts, who tended to defend national methods and organizational structures”: supra note 26, 177. See for a critical analysis: Statewatch, „Cover-up!
Proposed Regulation on European Border Guard hides unaccountable, operational bodies: http://www.statewatch.org/news/2003/nov/EUborderpolice.pdf. 43 Council Document 10058/1/03, 9-10. 44 Ibid, 35.
45 These limitations related to its large membership and wide agenda, had been demonstrated.
46but presumably also by a lack of a common approach. The Commission therefore argued
that while “certain more strategic co-ordination tasks could remain with SCIFA+, the more
47operational tasks could be entrusted to a new permanent Community Structure”. This
became the Practitioners‟ Common Unit (PUC), replacing SCIFA+ and consisting only of the
heads of Member States‟ border guard services. SCIFA would remain responsible for the
general strategy to set up an integrated border management system, while the PUC would deal
48exclusively with operational issues.
Throughout the summer of 2003 irregular landings at the EU‟s southern maritime
49borders continued to make headlines. The Thessaloniki European Council emphasized the
importance of determining a more structured framework and the necessity of creating new institutional frameworks in order to enhance operational cooperation for the management of
50the external borders. The Commission, from the outset a proponent of more centralized cooperation, seized the opportunity and proposed the creation of the European Agency for the Management of operational cooperation at the external borders of the EU Member States
51(Frontex). The Commission‟s intention to come forward with this proposal had already been
52welcomed by the European Council. The Regulation was adopted in October 2004, after
another summer witnessing the arrival of irregular migrants by sea.
45 COM(2003) 323 final, Commission Communication in view of the European Council of Thessaloniki on the development of a common policy on illegal immigration, smuggling and trafficking of human beings, external borders and the return of illegal residents, 7. 46th House of Lords, „Proposals for a European Border Guard‟ (London, 29 Report of Session 2002-03, 1 July
2003), 14. In informal discussions a Council official mentioned that each Member State was keen of having its own project. A Commission official from DG JLS rather cynically remarked that the ad-hoc centres were more
occupied with the design of their logo than anything else. See also the anonymous Commission official quoted in Neal, A., „Securitization and Risk at the EU Border: The Origins of FRONTEX‟ 47 Journal of Common Market
Studies 2 (2009), 342. 47 Communication from the Commission on the development of a common policy on illegal immigration, smuggling and trafficking of human beings, external borders and the return of illegal residents, COM(2003) 323 final, 7-8. 48 Council Conclusions (JAI), Luxembourg 5-6 June 2003, Council document 9845/03. The political role of SCIFA was underlined also by the Finnish Presidency of 2006, envisaging SCIFA to take the lead in the implementation of integrated Border Management. Presidency note for the Informal JHA Ministerial Meeting, Tampere, 20-22 September 2006, 2:
http://www.eu2006.fi/news_and_documents/other_documents/vko36/en_GB/1157615375954/ 49 Even if in a Member State like Italy numbers were actually declining over 2003, the phenomenon continued of great concern to the Member States involved: Coslovi, L., „Brevi note sull'immigrazione via mare in Italia e in
Spagna‟ (Rome, CeSPI, January 2007). See also the Council‟s Programme of measures to combat illegal
immigration across the maritime borders of the European Union, a clear example of the Council‟s executive role
in operational coordination of the management of the external borders (Council Document 13791/03). 50 Presidency Conclusions of the Thessaloniki European Council, 19 and 20 June 2003, Nr. 11638/03, points 12 and 14. 51 COM(2003) 687 final. 52 European Council Conclusions, Brussels, 16-17 October 2003, under III.