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.