EC border deal denied
01 September 1992
The widely reported "deal" over border controls between the Home Secretary, Mr Kenneth Clarke, and the European Commissioner for the Internal Market, Mr Martin Bangemann, has been denied categorically denied in Brussels. At a private meeting during the June EC summit in Lisbon Mr Clarke was said to have received an 'assurance' from Mr Bangemann that the UK would not be taken to the European Court of Justice if it maintained external border controls after 1 January 1993. In return the UK government promised to apply "a lighter touch" to its checks on EC nationals entering at ports and airports.
The European Commission have denied a deal was agreed saying that Mr Bangemann only agreed to discuss the problem with Mr Clarke at talks scheduled for early September. A Commission spokesperson said: "Mr Bangemann denies having said anything of the sort", on the contrary, "member states have to abolish border controls as of 1 January 1993 including those on people". Moreover, they said this was a view that Mr Bangemann "may very well" defend before the Court of Justice. On 31 July the Commission sent "precontentious" letters implicitly threatening legal action to member states, including the UK, who had not taken the measures to remove all border controls
On 11 May Jacques Delors presented the Commission opinion on the removal of all internal borders under Article 8a of the Single European Act 1987 (ratified by all EC states) to the European Council (the Council is the body with government representatives from all 12 EC states). The opinion states that the European Court of Justice had established that the internal market of the EC could be equated with a national market (judgement in case 15/81 Schul [1982] ECR 1409, ground 33). The community-wide internal market was to be seen as if it was one national market. Following this principle Article 8a states that the internal market "shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured..." This means, says the opinion, the abolition of:
all controls, formalities, procedures, checks, examinations, inspections etc...at internal frontiers, just as there are no border controls between regions of national markets.
The Commission says this obligation to remove controls "leaves no margin of discretion" and that they must be abolished "whatever their form or justification". This does not, it says, deprive national states of the right to exercise controls inside their territory but "the crossing of an internal frontier will no longer in itself give rise to control". The opinion states that this view holds "irrespective of their nationality" and that "there is no objective legal reason to differentiate between national of Member states and nationals of non-member states". It explicitly rejects the UK government's argument by saying that it would be contrary to Article 8a for controls to be exercised to determine whether a person is a national of a Member state or whether "he or she is a danger to public order public security or public health".
The UK government's political argument against the effect of Article 8a rests on a General Declaration in the Single European Act which says Member states can take measures to control immigration from third countries and to combat terrorism, crime and drugs. The Commission's opinion says: "A declaration can never deprive an article of the Treaty of its practical effectiveness".
Independent 3.8.92; Guardian 4.8.92; Agence Europe 4.8.92.