EU: Whither the "third pillar"? Hello "Schengenland"? (feature)
01 January 1997
The future of the "third pillar", created by the Maastricht Treaty and put into effect in November 1993, is due to undergo major changes when the results of the EU Intergovernmental conference are adopted in Amsterdam on 16-17 June. This feature looks at one of major changes being discussed - though much will happen before the ink is dry (see Statewatch, vol 6 no 4).
The turning point for the EU Presidency, held by the Netherlands, was the realisation at the Dublin Summit in December last year that on the issue of immigration and border controls there would be no change of policy if the Labour opposition win the general election in the UK in May. Labour leader, Tony Blair, spelt out for other EU socialist party leaders in Dublin that his government would maintain a national veto over these policies. However, Labour Party leaders have made clear that they will stand in the way of the majority of EU governments who want to "communitarianise" aspects of the "third pillar" by giving the European Commission the "right of initiative" to prepare new policies.
On 11 February Michiel Patjin, the Dutch Minister for European Affairs, said:
"We have now to accept that there is no prospect of any future British government abandoning national frontier controls. This must now be accepted as a political fact."
That evening UK television news programmes led with the story of a "victory in Europe" which would allow the UK to maintain its border controls through a new "opt-out" agreement. None of the commentators however spelt out the implications.
The maintenance of UK border controls has several immediate effects. First, it ties the Republic of Ireland to the UK's position because of the common travel area between the two countries. Second, it denies the right of border-free travel to third country nationals resident in the EU. Third, it blocks one of the key objectives, Article 7a, of the Single European Act which was intended to remove all controls of the internal movement of goods, capital and people.
The realisation, by the Dutch EU Presidency and other governments, that a change of government would not lead to a change of policy on the issues of border and immigration controls open the door to a change many of them thought would not seriously be on the IGC agenda - the incorporation of the Schengen Agreement into the treaties of the EU.
In the draft IGC proposals, drawn up by the Irish Presidency for the Dublin European Council in December, there was a four-line "Comment" to the effect the incorporation of the Schengen Agreement required "further consideration". The "Dublin II" draft proposed a new treaty Title, "Free movement of persons, asylum and immigration", and an amended Title VI (Article K of the Maastricht Treaty), "Security and safety of persons" covering policing, customs, and judicial cooperation.
By mid-February a whole series of IGC "Non-Papers" (as they are called) on the effect of incorporating the Schengen Agreement were on the table - if UK (and Ireland) could be given an "opt-out" then "flexibility" (a fancy name for two-track) would allow the 13 EU governments committed to the Schengen Agreement (and to "communitarianising" areas like asylum and immigration by giving the Commission the right of initiative and the European Court of Justice direct powers) to move fully inside the European Union which was one of its founding objectives in 1990.
Incorporating the Schengen Agreement
There are two Schengen Agreements. The first was signed in 1985 between five EU states: Germany, France, Belgium, Netherlands and Luxembourg. The same five signed the Schengen implementing agreement in 1990. The Italy signed up in November 1990, Portugal and Spain in June 1991 and Greece in 1992. In 1996 Austria, Denmark, Finland and Sweden signed up. Two non-EU states, Iceland and Norway, have been given associate status within Schengen so that the Nordic Passport Union can be maintained; th