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EU Immigration's Shocking New Trend
Polluted air and water cannot be prevented from moving out of one state and causing damage in another. So there is an interest in common standards to control the pollution at its source. The same applies to the environmental effects of goods traded in the single market. The Single European Act provided for a Community environmental policy to deal with these problems. It also affirmed that the EC’s objective was to ‘preserve, protect and improve the quality of the environment’.
Several hundred environmental measures have been enacted, responding to a wide range of environmental concerns: air and water pollution; waste disposal; noise limits for aircraft and motor vehicles; wildlife habitats; quality standards for drinking and bathing water. In 1988 a law was passed to reduce the incidence of acid rain, cutting emissions of sulphur dioxide and nitrogen oxides by 58 per cent by stages over the following 15 years. Standards of protection against dangerous chemicals were demanded following the accession of the environmentally conscious Swedes in 1995; and the highly complex REACH directive for guaranteeing standards throughout the Union was finally passed in 2006. While Union legislation had always allowed member states to set their own higher standards in other matters, Scandinavian pressure led to an article in the Amsterdam Treaty allowing states to have higher standards for traded products too, provided they can persuade the Commission that these are not protectionist devices; and by 2004, the ‘polluter pays’ principle became Union law. The focus on environmental policy came at a time when Europeans were rapidly becoming greener, so it became one of the Union’s most popular policies, as the provision for equal pay had done before; and like policy for gender equality, it too was strengthened by the Amsterdam Treaty, which stipulated that ‘environmental protection requirements’ must be integrated into other Union policies ‘with a view to promoting sustainable development’.
The Sixth Environment Action Programme of the European Community 2002-2012 The 6th EAP covers a period of 10 years from publication, therefore until July 2012. Article 11 of Decision No 1600/2002/EC of the European Parliament and of the Council of 22 July 2002 laying down the Sixth Community Environment Action Programme states: "(…) The Commission shall submit to the European Parliament and the Council a final assessment of the Programme and the state and prospects for the environment in the course of the final year of the Programme."
The Commission has adopted on 31 August 2011 a Communication on the Final Assessment of the 6th EAP. < http://ec.europa.eu/environment/newprg/archives/final.htm>.
‘An area of freedom, security, and justice’
Ernest Bevin, the great Foreign Secretary in the first post-war Labour government, said that the aim of his foreign policy ‘really was . . . to grapple with the whole problem of passports and visas’, so that he could ‘go down to Victoria Station’, where trains departed for the Continent, ‘get a railway ticket, and go where the Hell I liked without a passport or anything else’. The old trade unionist retained his vision of the brotherhood of man. But the foreign minister found himself defending the sovereignty of states; and he rejected the idea of British membership of the emergent Community, which was eventually to make the realization of his vision feasible.
Already in 1958 the Rome Treaty included ‘persons’, along with goods, services, and capital, in the four freedoms of movement across the frontiers between the member states. For ‘persons’ this was limited to the right to cross them for purposes of work. A quarter of a century later, the Single European Act defined the internal market as ‘an area without internal frontiers’. Mrs. Thatcher’s government held that these words implied no change, because they were qualified by the addition ‘in accordance with the Treaty’, which in relevant respects still stood. But governments of the more federalist states intended to take the words literally: to abolish controls at their mutual borders and thus make movement across them free for all.
This idea was given legal expression in the Schengen Agreements of 1985 and 1990, Schengen be limit the damage from climate change. Schengen had two main aims. The first concerned border controls: to eliminate those internal to Schengen land; establish controls round its external frontier; and set rules to deal with asylum, immigration, and the movement or residence of other countries’ nationals within the area. The second was to cooperate in combating crime.
Cross-border criminal activity grows for reasons similar to those that drive cross-border economic activity: advancing technology, particularly in transport and communications. As with trade, cross border cooperation is needed if the rule of law is to keep abreast of it. With the intense relationship engendered by their economic integration, the member states have a special need for such cooperation.
A first step was taken in 1974 with the ‘Trevi’ agreement to exchange information about terrorism; and the ministers and officials involved soon found it useful to include other forms of crime. This was a precursor of Schengen, which forged closer cooperation among law enforcement agencies of the states that were ready to go further together, and which has led to an extensive ‘acquis’ of legal texts, applying to the very large majority of EU member states.
Maastricht’s third pillar
Cross-border aspects of crime and the movement of people affect all member states, not just those of Schengen land. It was agreed that the Maastricht Treaty should provide for cooperation in these fields.
Terrorism, drugs, fraud, and ‘other serious forms of crime’ were listed in the Treaty, along with external border controls, asylum, immigration, and movement across the internal borders by nationals from states outside the Union. The member states’ judicial, administrative, police and customs authorities were to cooperate in order to deal with them.
Some states, such as Germany, wanted this to be done within the Community institutions, with the Commission, Court, and Parliament as well as the Council playing their normal parts. Others such as Britain, defending their sovereignty, wanted to exclude as far as possible the institutions other than the Council. The upshot was the new ‘third pillar’ for Cooperation in Justice and Home Affairs (CJHA), set up alongside the Community ‘first pillar’. The institutions for the CJHA were intergovernmental, with the unanimity procedure in the Council, only consultative roles for the Parliament and Commission, and none at all for the Court. The policy instruments were to be joint positions and actions determined by the Council, and conventions ratified by all the member states. One of the conventions was to establish the new policing body, Europol.
Not surprisingly, given the requirement of unanimous agreement among the then 15 governments before a decision could be taken, there had not been much progress by the time the Amsterdam Treaty was negotiated. No convention had yet entered into force and action in other respects was slow. But concern about cross-border crime and illegal immigration continued to grow; and the Eastern enlargement, expected to bring new problems, was approaching. So most member states wanted a stronger system.
The Amsterdam Treaty affirmed the intention to establish what it rather grandly called ‘an transfer of freedom, security, and justice’ (AFSJ). This essentially meant that various third-pillar elements moved into the first pillar, under the Union’s institutional control, most notably by the Parliament and the Court. Coupled to a new cycle of five-yearly programmes from 1999, and with the gradual adoption of the Charter of Fundamental Rights, AFSJ developed considerable momentum.
Lisbon brought further substantive change. The collapsing of the pillars has brought police and judicial cooperation into the Ordinary Legislative Procedure, albeit with some transitional arrangements and with member states allowed a limited right of initiative. While the Charter is now legally binding, several states, including the UK, have special provisions and opt-outs, reflecting the continued sensitivity of the policy field.
While conditions in the Union are, in a general sense, notably free, secure, and just when compared with almost all other parts of the world, the words are used in the treaty in a more specific sense: freedom refers to free movement across internal borders; security, to protection against cross-border crime; and justice, mainly to judicial cooperation in civil as well as criminal matters. It still remains to be seen whether it was wise to appropriate words that have such wide and noble significance for such particular ends. The answer may depend on how far and how soon they are achieved.
As regards freedom of movement, almost all the Schengen acquis has already been transferred into the Union. Thus the right of people to move freely throughout Schengen land is guaranteed by the institutions, though some member states have had to restore border checks temporarily in order to deal with influxes from other member states of non-EU nationals with false visas. The external border controls are not yet satisfactory. Nor is the common policy on immigration and asylum complete. Nor will there be freedom of movement without border checks throughout the Union while Britain, Denmark, and Ireland retain their controls. Determined to keep its border controls, Britain opted out of the Amsterdam Treaty’s provisions on freedom of movement; and Ireland, enjoying open frontiers with the UK, had to do the same. But both have the right to opt into specific measures, provided the other governments agree unanimously in each case. The British government has said it intends eventually to participate fully in the Schengen acquis, apart from the aspects relating to border controls, while Denmark, which had signed up to the Schengen Agreements, has opted out of their transfer into the Union.
As regards security, the fight against cross-border crime remains primarily intergovernmental, albeit with extending influence of the Commission. With activity addressing trafficking in persons, offences against children, corruption, money-laundering, forging money, and ‘cyber-crime’, there has been significant activity. Europol has made a useful contribution, though it could not become fully operational until its convention was fully ratified by all member states in July 1999, over five years after the Maastricht Treaty had provided for it. Likewise, Frontex, established in 2005 to coordinate border guards, had a slow start, but now deploys teams to several of the Union’s key frontiers. However, it is in the field of counter-terrorism that most significant progress has been made. After the September 2001 attacks on the US, the Union quickly pushed to develop its own abilities to act. A European arrest warrant that had been in limbo for several years was agreed in 2002, alongside an action plan that targets aspects of the prevention and prosecution of terrorist acts, as well as coordinating responses by member states. Linked to th">In the narrow definition of justice as judicial cooperation, some specific steps have been taken for member states to assist each other in cross border problems relating to the recognition and enforcement of judgments, though not much has been done about the rights of victims of crime. The path chosen by the Union has been one of mutual recognition, rather than harmonization; but there has been agreement on several joint policies, most notably the European arrest warrant, which address some of the problems of cross-border crime.
A great civilian power . . . and more, or less?
The main motives for creating the Community were peace between France, Germany, and the other member states, and prosperity for their citizens. But while their mutual relationship was particularly intense, relations with their neighbours and with countries further afield were also very important; and the logic of subsidiarity, that the Community should have responsibility for what it can do better than the member states acting separately, began to be applied to external as well as internal affairs.
The Community’s external relations were, in line with its powers, originally concentrated in the economic field. But there were from the outset also political aims. For Germany, bordering on the Soviet bloc and with East Germany under Soviet control, the priority was solidarity in resistance to Soviet pressure. The French had a broader vision of the Community as a power in the world. Relations with the United States were a central element: for Monnet, in the form of a partnership between the Community and the US; for de Gaulle, to defy American hegemony. Monnet’s view was widely shared and the Community came to be seen as a potential ‘great civilian power’.
Many in France went beyond this, envisaging a Europe that could challenge American dominance in the field of defence. In other countries this view was generally resisted. But cooperation in foreign policy evolved to the point where the Union gave it the name ‘Common Foreign and Security Policy’; and Britain, which had long been adamantly opposed to common action by the EU on defence, in 1999 joined France in initiating a modest EU defence capacity. This is still a minor, though increasingly significant, element in the Union’s external relations. The Union’s external economic policies remain much more important.
Meanwhile, the world has been becoming a more dangerous place, with sources of instability such as climate change, environmental degradation, cross-border crime, poverty, consequent mass migration, and terrorism, alongside the military forms of insecurity. The relative simplicity of the confrontation between the United States and the Soviet Union has been replaced by American supremacy, and with the perspective of an emergent multipolar world in which the US is in the process of being joined by China and, probably later, India as giant powers, while Russia along with other, rising powers must also be taken into account; and the balance of bipolar economic power, with the predominance of the US and the EU, is being rapidly transformed, likewise with the BRIC economies of Brazil, Russia, India, and China, into a multipolar world economy. This is the world in which the EU has to find its place; and as the impact of the Iraq War of 2003 and the gridlocked Doha Round of trade negotiations have demonstrated, it is no simple task.
Europeans have generally reached a stage in their history, and particularly in the experience of living peaceably together in the EU, when they greatly value security and predictability in the relations among states, hence favour the creation of a secure multilateral system in the world. While the Union’s military capabilities play a growing part in functions such as peacekeeping, its external economic, aid, and environmental policies, together with its experience in developing peaceful relations among states, has a major potential for contributing to both its own security and prosperity, and those in the wider world. In this perspective, much can be learned from the Union’s experience so far. So we examine in this chapter why and how its structures for dealing with the rest of the world have been established; how it has come to be enlarged from 15 states in Western Europe and how its policies for dealing with the rest of the world have been developed.
External economic relations
The Rome Treaty gave the Community its common external tariff as an instrument for trade policy, called in the jargon ‘common commercial policy’. This was not a foregone conclusion. Some wanted the member states to keep their existing tariffs, below the average in Germany and Benelux, higher in France and Italy. But the French insisted on the common tariff, partly because they feared competition from cheap imports seeping through the low-tariff states, but partly also because they wanted the Community to have an instrument with which it could start to become a force in world affairs.
This has remained a persistent French theme. It was one of the motives for the drive towards the single currency, challenging the hegemony of the dollar; and it has continued with the effort to build a European defence capacity, for which the term ‘Europe puissance’ has been coined, contrasted with a mere European ‘space’ preoccupied with business affairs. Neither those French who were highly protectionist, nor the British who at that time criticized the common tariff as a protectionist device, envisaged that it would in fact be the trigger for the Kennedy Round of tariff cuts, which was the first step towards the Community’s role as the foremost promoter of world trade liberalization, and thus also towards demonstrating the power of a common instrument of external policy.
That power has been shown in the field of agriculture too, with much less fortunate results. The system of import levies and export subsidies has been used in a highly protectionist way, to the detriment of the Community’s consumers and international trade relations, including its own industrial exports. But the external trade policy, taken as a whole, has been of considerable benefit both to its citizens and to international trade.
External trade relations are conducted effectively by the Union institutions. Policies are decided and trade agreements approved by the Council under the procedure of qualified majority; negotiations are conducted by the Commission within the policy mandate thus decided, and in consultation with a special committee appointed by the Council; and the Court has jurisdiction on points of law.
Parliaments do not usually play much part in relation to trade negotiations, apart from formally approving the results. But the Treaties did not even provide for consultation of the European Parliament about matters of trade policy, though it is accorded the right to give or withhold its assent over treaties of association and, more importantly, of accession, although the Parliament does play a significant part in external relations more generally.
When the Rome Treaty was drafted, trade in goods was all-important; trade in services was of little account, and was not mentioned in the chapter on the common commercial policy. But services now comprise about one-third of all world trade. Yet despite the success of the normal Union system as it applies to the trade in goods, trade in services has remained subject to more intergovernmental procedures. While the momentum of successful negotiations on trade in goods has carried the Union through a series of trade rounds, these procedures could still weaken its capacity to negotiate effectively on services. So the Nice Treaty applied qualified majority voting to trade in all services save in the fields of culture, audio-visual services, education, health and social services, and some transport services.
Development aid has also become a major instrument of the Union’s external policy, initiated, likewise on French insistence, with the Rome Treaty’s provision for a fund for the then colonies of member states. This has since burgeoned so that the Union provides aid for countries throughout the less-developed parts of the world. Thus the EU, together with its member states, has become by far the world’s largest source of aid; and within Europe the Union’s instruments of trade and aid policy, along with the prospect of membership, have been a major external influence favouring the successful transformation of the new member states from Central and Eastern Europe. It was indeed fortunate that France insisted on the original grant of instruments for the Community’s external policy.
The environment too, and climate change in particular, has become a major field for international negotiation; and though the Union’s external policy remains subject to a somewhat more intergovernmental procedure than its trade policy, the EU has nonetheless, had a decisive impact on negotiations to counter global warming and destruction of the ozone layer.
The EU does not yet play a similar part in the international monetary system, despite the potential offered by the Euro zone crisis. The institutional arrangements for conducting an external monetary policy are not at present strong enough to enable it to exert its potential weight, although the ECB has clearly become an important player in policy debates.
Cooperation in foreign policy among the member states was introduced in 1970 as an element of deepening along with the widening to include Britain, Ireland, and Denmark. The name given to this activity was European Political Cooperation (EPC): the word ‘political’ being used by ministries of foreign affairs, distinguishing what they saw as ‘high politics’ from such matters as economics, evidently regarded as low. But the Community’s external economic policies were already a great deal more important than anything the EPC was to achieve during the following years, particularly as France, in the early years after de Gaulle, insisted that the EPC be kept not only intergovernmental but also rigorously separate from the Community.
The EPC did achieve an important early result when the member states got human rights placed on the agenda of the Conference on Security and Cooperation in Europe. The Soviet Union accepted the text that was finally adopted, which though nobody then thought it of much consequence, in the event gave support to the agitation that contributed to the dissolution of the Soviet bloc. More generally, the member states’ diplomats developed ways of working together that were to produce many joint positions on a wide range of subjects, both in relations with other states and in the United Nations. By 1985 France was ready to accept that the EPC should come closer to the Community and it was included in the Single European Act.
The next formal development of foreign policy cooperation was its incorporation in the Maastricht Treaty alongside the Community, as the ‘second pillar’ of the EU. The prospect of German unification had alarmed the French, who feared that the larger Germany might downgrade the Franco-German partnership when Mrs. Thatcher asked them what they meant by political union, she got no clear answer. One reason was that, while both were agreed on the idea of a common foreign policy, which was one of the two specific things to which the term was applied, they disagreed about reform of the institutions, which was the other. For while the French wanted to strengthen the intergovernmental elements, in particular the European Council, the Germans wanted to move towards a federal system by strengthening the Parliament. So they could hardly speak with one voice about it.
Thatcher wanted neither and, though she accepted the existing EPC, did not want the Community institutions to have a hand in it. While Germany envisaged that foreign policy would move towards becoming a Community competence, France too opposed the idea; and the outcome was the intergovernmental ‘second pillar’ for a Common Foreign and Security Policy (CFSP). The CFSP was given a grander name than the EPC and more elaborate institutions. Following Europe’s poor showing in the Gulf War, defence was mentioned in the treaty, but in ambiguous terms to accommodate both the French desire for an autonomous European defence capacity and British opposition to any such thing, for fear it could weaken NATO. So nothing much resulted from the use of the word defence. Nor indeed did the CFSP then produce notably better results than the EPC had done before. So there was a second try, in the Amsterdam Treaty, to devise a satisfactory second pillar.
Amsterdam clarified a number of aspects, including a set of general objectives for CFSP, the possibility of using QMV in some cases, as well as enhanced cooperation. Of more consequence was an attempt to provide for a simpler system of external representation, with the creation of a High Representative, a role to be filled by the Secretary General of the Council Secretariat, i.e. an intergovernmental post. Coupled to increased planning capabilities within the Secretariat, this allowed the High Representative, former NATO Secretary-General Javier Solana, to build a much stronger profile in international organizations.
However, Amsterdam and the minor tinkering of Nice were still insufficient to address the continuing structural problems that CFSP has faced, and so the Laeken process explicitly focused on the need to engage in a more fundamental reorganization of external representation. This eventually led to the Lisbon Treaty, which ended the Maastricht pillar system and tried to create a single external figure. This new post, the High Representative for the Union for Foreign Affairs and Security Policy, was to join together Commission and Council: the individual would be a vice-president of the former and a chair of the latter’s Foreign Affairs formation, as well as attending European Councils. In brief, the High Representative had the potential to become a key international political player, especially with the resource transfer of powers of a new European External Action Service-essentially a European diplomatic corps-behind them. Using the legal framework of the Council’s common positions and joint actions, there was great scope to articulate a distinctively European position in the world.
While the reorganization has helped reduce some of the previous complexity and duplication of the system, it would also be fair to say that the choice for the first High Representative of Catherine Ashton also indicated the continuing limits that national leaders have sought to impose. Rather than choosing a high-profile, highly active individual, the decision to have Baroness Ashton signaled a more managerial role for the post. Thus much of her work to date has been taken up with the creation and mobilization of the new Lisbon structures, rather than with conspicuous action. Indeed, the dual institutional roles have meant as much a division of focus as a uniting of policy.
The progressive consolidation of external representation is likely to continue, especially once the new institutions are able to bed in and develop their corporate identities. The growing role for the European Parliament in influencing budget allocations will also surely play a role in this. But it will be in the field of security that the most notable consequences are likely to be felt.
Awareness that the Union should provide more effective military backing for its common policy in former Yugoslavia spurred governments to strengthen its capacity in the field of defence. While recognizing that they depend on NATOo and the US for defence against any major threat to their security, they used somewhat stronger language on the Union’s own capacity in the Amsterdam Treaty than at Maastricht, envisaging ‘the progressive framing of a common defence policy, which might lead to a common defence’, the immediate purpose of which was to include humanitarian tasks, peacekeeping, and ‘crisis management, including peacemaking’.
This agreement over NATO’s role was hard won, in the face of those countries that wished to keep the US out of the picture, the most notable exponent of which was France. It took the difficult experiences of the conflicts in the Balkans, especially in Kosovo, to demonstrate that Europeans, though their defence expenditure amounted to two-thirds that of the Americans were capable of delivering only one-tenth of the firepower; and their influence over the conduct of the action was correspondingly limited. This brought together the British and French, who had made the principal European contribution, to launch their defence initiative. Experience in the Gulf and the Balkan wars had shown the French that they had to come closer to NATO if they were to make an effective military contribution, while the British for their part had come to see the merit of working with the French; and, having declined to become a founder member of the Euro zone, the government saw defence as a field in which a central role for Britain in the Union could be secured.
The result was the joint proposal for an EU rapid reaction force ‘up to’ 50,000–60,000 strong, which was adopted by the European Council in Helsinki in December 1999; and it was agreed to integrate WEU into the Union. The EU began to develop a European Security and Defence Policy (ESDP, now referred to as the Common Security and Defence Policy (CSDP)) as the security arm CFSP. It established an EU defence planning and staff structure, with Council meetings in which defence ministers participate along with the foreign ministers, a Military Committee representing member states’ ‘defence chiefs’, and military staff within the Council Secretariat; and it converted the Political Committee, responsible to the Council, into a Political and Security Committee. Preparations proceeded for establishing the rapid reaction force, to undertake peacekeeping and crisis management autonomously ‘where NATO as a whole is not engaged’, though NATO, which in practice meant American, facilities such as air transport and satellite-based intelligence would usually be required; and this means American consent to any substantial operations. Thus the British government’s fears about weakening NATO have been allayed; and all member states, including Austria, Finland, Ireland, and Sweden, with their traditions of neutrality, were reassured by the provisions that any member state can opt out of, or into, any action. The Lisbon Treaty reaffirmed these goals, putting CSDP under the control of the High Representative.This illustrates the difficulties confronting the Union’s defence capacity.