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Published online by Cambridge University Press: 06 March 2019
The crucial importance of European Union's (EU) enlargement process to Central and Eastern European Countries (CEECs) from a political, economic, social, and geo-strategic perspective inspired much debate over the last decade. Our objective in the current study is to demonstrate the enforcement of two categories of interdependent legal provisions (Title IV and the Schengen acquis) by the applicant countries in the process of their accession to the EU. The analysis comprehends the latest Commission Strategy Paper and Regular Reports on the progress towards accession by each of the candidate countries, issued on 9th October 2002 and the results of the last Justice and Home Affairs (JHA) Council.
* This paper is being written in the framework of and thanks to the Interuniversitary Attraction Pole P5/32 (Liège, Ghent, Brussels, Paris), initiated by the Belgian State, Prime Minister's Office, Science Policy Programming.Google Scholar
(1) Cyprus, Malta and Turkey are the other applicant countries, Cyprus and Malta are invited to accede to the EU in 2004 and the Turkey is not yet negotiating.Google Scholar
(2) In its consolidated version since the Treaty of Amsterdam.Google Scholar
(3) Protocol integrating the Schengen acquis into the framework of the European Union. See, infra Section B. for an analysis of the acquis.Google Scholar
(4) The aspiration to establish an Internal Market with free movement of persons in the EU goes together with the issue of a security deficit requiring stronger control at the EU external borders.Google Scholar
(5) Article 61, Title IV (TEC).Google Scholar
(6) Article 68, §2, Title IV (TEC).Google Scholar
(7) A Protocol annexed to the Treaty states that Title IV and secondary legislation based on it or international agreements made pursuant to the Title or related Court of Justice case law are not binding for the United Kingdom and Ireland. Both are entitled to carry our border controls on entry. The Protocol on the position of Denmark postulates that the country is not bound by Title IV provisions and, contrary to the position of the UK and Ireland, envisages no opting-in clause.Google Scholar
(8) For the definition of the Schengen acquis, refer to the Council decision 1999/435/EC of 20 May 1999, OJ (2000) L 239/1.Google Scholar
(9) However, they are allowed a partial opt-in in the Schengen mechanisms, without obliging them to abolish their border controls. It is important to note that Iceland and Norway, which are members of the European Economic Area, and whose integration helped to resolve the problems with the Nordic Union, whose other members have become members of the EU, also participate as associated partners.Google Scholar
(10) “For the purposes of the negotiations for the admission of new Member States into the European Union, the Schengen acquis and further measures taken by the institutions within its scope shall be regarded as an acquis which must be accepted in full by all States candidates for admission”. See article 8 of the Schengen Protocol.Google Scholar
(11) “Towards the Enlarged Union” Strategy Paper and Report of the European Commission on the progress towards accession by each of the candidate countries, Brussels, October 9th 2002, COM (2002) 700 final, p. 28. Hereafter called “Strategy Paper.”Google Scholar
(12) As professor Monar notes it:” There is no other example in the history of EC/EU integration process of an area of previous loose intergovernmental co-operation only having made its way so quickly to the top of the Union's political and legislative agenda.” Jörg Monar, “EU Justice and Home Affairs and the Eastward Enlargement: The Challenge of Diversity and EU Instruments and Strategies,” ZEI Discussion Paper p. 3, C91 (2001).Google Scholar
(13) An issue regularly mentioned in academic debates and tenet. See, Jörg Monar's article, op. cit. and Monika Sie Dhian Ho & Eric Philippart, “JHA and Enlargement: a Plea for a Core Acquis Test,” The European Policy Centre, Brussels, October 25th 2001.Google Scholar
(14) See, Monica Den Boer & Gilles de Kerchove, “Schengen Acquis and Enlargement,” in The European Union and the International Legal Order: Discord or Harmony 315-329 (Vincent Kronenberger ed., 2002).Google Scholar
(15) The Commission underlines that each country's Schengen Action plan has allowed them to structure the necessary key actions and to advance in their implementation (several sectors have been mentioned: administrative and judicial capacity in the context of border management, fight against fraud, corruption, money laundering and organised crime) but clear attestation of a strict core acquis text is missing. See, Strategy Paper, p. 18.Google Scholar
(16) See, Strategy Paper, p. 25. The safeguard clause would allow the Commission to determine the necessary protective measures. Such a clause has been present in previous Accession Treaties, for instance the ones with Austria, Finland and Sweden. The extension of the clause would cover different policy fields which could “have an impact of the good functioning of the internal market in a very large sense.” See, Uniting Europe, No. 204, October 14th 2002. Moreover, the duration of its validity should be two years and not one, as in the last enlargement.Google Scholar
(17) See, Strategy Paper, p. 27.Google Scholar
(18) See, Schengen Convention of June 14th 1985. This Convention forms a fundamental part of the Schengen acquis published.Google Scholar
(19) Communication from the Commission to the Council and the European Parliament “Towards Integrated Management of the External Borders of the Member States of the European Union,” Brussels, 7 May 2002, COM (2002) 233 final.Google Scholar
(20) Refer, for instance, the latest Regular Report on Poland's Progress towards Accession. SEC (2002) 1408, Brussels, October 9th 2002.Google Scholar
(21) The fundamental principle of common visa policy is provided for by article 9 of the Schengen Implementing Convention of 1990. The three elements are dealt with in further legal instruments.Google Scholar
(22) Council Regulation (EC) NO 539/2001 of March 15th 2001, modified on December 7th 2001, OJ L 81 of March 21st 2001, p. 1.Google Scholar
(23) Refer, for instance, to the latest Regular Report on Poland's Progress towards Accession, which notes on p. 118: “Further efforts are required with respect to visa policy. The most difficult aspects of achieving full alignment with the EU visa acquis remain to be tackled”. See this document, op.cit note 20.Google Scholar
(24) Declaration adopted on 1st October 2001. See Agence Europe, 4th October 2001.Google Scholar
(25) See, Uniting Europe, n° 162, 24 October 2001.Google Scholar
(26) Two recommendations of the Council of 1994 and 1995 presented the guiding principles and the necessary readmission clauses to be provided for in such agreements. After the entry into force of the Amsterdam Treaty, these clauses were updated and a decision was adopted to incorporate them in all Community agreements and in all agreements between the European Community, its Member States and non-member states.Google Scholar
(27) See, Presidency Conclusions – Seville, 21 & 22 June 2002, §30&34.Google Scholar
(28) EU Green Paper on a Community Return Policy on Illegal Residents, Brussels, April 10th 2002, COM (2002) 175 final.Google Scholar
(29) The Commission has just proposed to the Council a mandate to negotiate such agreements with Algeria, Turkey, Albania and China. Agreements are currently negotiated with Russia, Morocco, Sri Lanka, Pakistan, Hong Kong, Macao and the Ukraine. See, European Report, October 19th 2002, IV.3.Google Scholar
(30) See, European Parliament, Migration and Asylum in Central and Eastern Europe, at: www.europarl.eu.int/workingpapers/libe/104/summary_en.htm. In this sense, the last JHA Council on 15 October declared that from the moment an EU candidate country signs its Accession Treaty, asylum applications lodged by its nationals will be rejected. See European Report, October 19th 2002, IV.3.Google Scholar
(31) IOM's Comments on the EU Green Paper on a Community Return Policy on Illegal Residents, International Organisation for Migration, p.21.Google Scholar
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