Management of border controls in Europe: Towards a Common European-Border guard?

Speakers: Dr. Peter Hobbing
Pekka Järviö Esq.
Dr. Valsamis Mitsilegas

Chair: Dr. Joanna Apap
 

Date: 18 November 2003
 

Introduction:

Dr Apap commenced the seminar by referring to the six-fold task to be entrusted to the new External Borders Agency envisaged by the draft Council Regulation proposed by the European Commission on 11 November 2003:
 

• Operational co-ordination of Member States controls exercised at the European Union’s external borders
• Rendering of assistance to the Member States in the education of their Border Guards
• Carrying out of general and tailored risk assessments in relation to illegal immigration "threats"
• Carrying out of relevant research
• Rendering, or co-ordinating, assistance to the Member States in critical situations where special help is needed (e.g. mass influx of illegal immigrants)
• Organisation or co-ordination tasks in relation to the execution of effective policies of return of third country nationals

Dr Apap also raised the question to what extent these proposals may be represented as a first step towards the establishment of a European Border Guard, a question which also featured in later discussions (see infra).

Presentation by Dr Mitsilegas:

Dr Mitsilegas stressed that he was not speaking for the House of Lords EU Committee, though he would try to communicate its views on some matters. Reference was made throughout his presentation to the report of the EU Committee on the subject of a European Border Guard, and to the evidence submitted to the Committee when it made its report.
Dr Mitsilegas referred to the three "models" of European border control under current discussion:

• first, one had the European Commission’s proposals, which now took the shape of a non-executive Agency; the Commission in a 2003 Communication referred to the creation of a ’European Border Guard’ - it remained uncertain whether this was not still the underlying intention of the European Commission
• second, one had the British ideas of looser co-operation based more explicitly on the improvement of existing forms of co-operation without building up new European "bureaucracies" (the big fear in UK circles)
• third, one had the "Finnish model" (explained in more detail by Mr Järviö, infra). This was a model based on high levels of mutual trust.

Dr Mitsilegas then turned to the challenges of centralised co-operation on border controls, raising a number of questions concerning both existing forms of operational co-ordination (e.g. within the "Common Unit" of external borders practitioners) and regarding the European Commission’s proposals. Regarding current practice, Dr Mitsilegas indicated certain concerns regarding transparency and accountability. The formalisation of co-ordination in the Agency promised possible improvements in this situation, but the speaker then raised a number of questions on the draft Regulation:

• first, regarding the momentum of the developments - was the Council being realistic in hoping to have the Regulation agreed by the end of the year?
• second, regarding the legal basis - he doubted whether Article 66 EC Treaty was sound, and argued this point with reference to the proposals of the Convention on the Future of Europe for a draft constitutional treaty
• third, was it correct, -vis-à-vis the UK - to regard this measure as falling under measures "building on Schengen", and not to apply the separate UK Protocol on Title IV of the EC Treaty(which would give the UK the choice to opt-in to this measure)?

Presentation by Mr Hobbing:

The principal emphasis of Dr Hobbing’s presentation was the "burden of border management", a burden which he explained in terms of the growing European dimension of border management since the opening of internal borders, first in the context of Schengen, and then in the context of the European Union as a whole. The shift to the management of movement of persons at the common external borders was explained - the external border line would, of course, alter with enlargement. Concomitantly, the countries with responsibility for management of the common border would change. Germany and France would, for example, move out of external border management after 2004.
Dr Hobbing took pains to explain that border management was not a "one-way" process. It involved communication at both sides of the borders (a point later also stressed by Mr Järviö). The role of the "hinterland" was crucial.
Apart from the geographic and geo-political challenges or "burdens" of border control management, it was also necessary to point to the difficulties posed to a truly common EU approach to border management by the multiplicity of languages and legal systems applying in the Union and to the diverse administrative branches - also within Member States - with border management responsibilities. The divergence, from a legal point of view, between Customs and Schengen borderlines was a further complicating factor.
Elaborating his views on the current debate about the most appropriate models for border management, Dr Hobbing tended towards support of a more centralised option, suggesting that at least some of the burdens he referred to would be lifted by adoption of tighter co-ordinating mechanisms at EU level - which may eventually lead to some form of "Border Guard". Sovereignty arguments were not necessarily compelling if one compared action by the European Union in other "sensitive" fields. A regional approach also had its drawbacks in terms of dealing with large-scale immigration challenges. The development of the special linguistic etc. skills needed for common European operations would be enhanced by closer co-ordination and common training (training of border guards was particularly important and the development of a common EU approach here a priority). Liaison officers could play a very useful role but also had their limitations. The experience of Customs agencies in enhancing operational co-ordination in the European Union should be carefully studied - such operational co-ordination was, however, buttressed by substantial legislative harmonisation of Customs law, which may be less easy to achieve in general border management.

Presentation by Mr Järviö:

Referring, like Dr Hobbing before him, to the rapidity of recent developments towards more co-ordinated management of the EU border, Mr Järviö pointed to the urgency created by the pending enlargement of the European Union. His presentation was then divided into three parts:

• first, the "Finnish model"
• second, the merits of the Commission’s Agency proposal
• third, the question whether the EU is really on the way to having its own Border Guard

Regarding the Finnish model, the success of this example of cross-border co-operation in border management could be measured by the very small number of illegal border crossings between Russia and Finland in recent years - fewer than fifty in each of the past two years. Also, there was extremely little smuggling of goods across the border. These successes could be repeated at the EU’s external border, in Mr Järviö’s opinion, were some of the underlying principles of Finnish-Russian co-operation to be implemented. These principles, or pre-conditions, were essentially three-fold:

• first, the existence of common trust - this was promoted by agreement on common objectives and by the strict application of clear rules in the contacts between Finnish and Russian Border Guards (including sanctioning of transgressions)
• second, there should be well-functioning co-ordination and co-operation between different national authorities working at the border - a "seamless service to customers". Efficient sharing of tasks by the different agencies was a key factor here (for example in the handling of asylum applications, one-quarter of which were received at the border)
• third, there should be adequate infrastructure for day-to-day border management, in order to avoid queues etc. (queues were hardly known at the border). In regard to the exchange of data and equipment, Finnish-Russian co-operation was exemplary.

Mr Järviö did not share the concerns - voiced, inter-alia at previous CEPS conferences - about the dangers to "local economies" posed by the introduction of new border control regimes at the EU external borders. Such economies would continue to prosper, given legal flows of persons, as opposed to illegal ones. EU "INTERREG" assistance might alleviate temporary interruptions of trade or commerce.
In relation to the Agency proposal, Mr Järviö saw the future of this type of Agency in terms, first, of a building upon the discrete tasks of risk analysis (Finnish centre) and common Border Guard training (currently concentrated in Austria). To these tasks would be added the co-ordinating operational work of the envisaged land, air and maritime centres (whose financing, in response to an earlier question from the audience, he saw as still somewhat unclear).
On the question of the timetable for the Regulation (which he praised as technically very good), Mr Järviö said that a number of points remained to be resolved before Christmas. These may include the question of legal basis, which in relation to border management was "firmly in both pillars". There was also the question of the composition and responsibilities of the "Management Board" envisaged for the Agency - should not all Member States be represented on this Board?
Reflecting on the way ahead for the EU in border management, Mr Järviö echoed the comments of Dr Hobbing regarding the sensitivity of matters which touch upon criminal law competence, an area traditionally heavily guarded by the Member States as part of their sovereign responsibilities. Criminal law competences are invoked by Border Guards in the exercise of some of their activities at the border. Weighing the sovereignty concerns more heavily, perhaps, than Dr Hobbing, Mr Järviö took the view that intergovernmental forms of co-operation would continue to prevail for the foreseeable future. A true European Border Guard was off rather than on the cards (so the House of Lords EU Committee can probably be assuaged). National bodies would, however, increasingly follow closer rules - the "four basic rules of the Schengen acquis" would have to be more widely applied, after enlargement, by a new range of countries, giving them substantially more responsibilities. These responsibilities would justify the large investment earmarked by the EU For Schengen and Border management - some € 950 million in the next years.

Discussion:

Some members of the audience sought definition of terms: the speakers explained that "border management" meant more than just control of passports, it was, as Mr Hobbing had emphasised in his presentation, a broader system of communication and organisation of operational tasks at the border.
What could be learned from US experience? Inter-agency co-ordination among US Federal agencies was now to be seen in light of the post-September 11 agenda in the US, a subject requiring further study. The US "rejection" of Schengen open borders policy was not supported by the speakers, but dialogue and co-operation between the External Borders Agency and third countries such as the US would, of course, be important.
Was there a role for intelligence agencies at the border? The speakers threw doubt on this, and in this context the concerns of some members of the audience about excessive surveillance and control at the external borders should be reported. As to the current extent of the danger of breach of fundamental rights at the borders, the views of the speakers diverged somewhat, Mr Mitsilegas voicing these concerns most openly. A lack of transparency in the organisation of joint investigative teams would exacerbate these concerns.

Could Member States refuse to collaborate with the External Borders Agency, if it wished under the proposed Article 3 of the Regulation to launch a joint operation or pilot projects? Mr Järviö felt this was legally possible. The decisions of the Management Board would contain financial support to coax the Member States to participate but they will be under no obligation to do so.

Dr Apap concluded the discussions, with her and the seminar’s main question - as to whether enhanced trust between national agencies built up within more centralised structures of EU external border management would eventually prompt a more ambitious EU model - still very much hanging in the air.