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1.3.2009

Institutional Basis of European Migration Policy

European cooperation on matters of asylum and migration policy has been communitised [1] step-by-step.

Until the end of the 1990s, intergovernmental decision-making procedures predominated, and this concentrated influence over common policies in the hands of representatives of the member states in the Council of the European Union (also called the Council of Ministers), in this case the Ministers of Justice and Home Affairs. Under the now communitised decision rules, member states share central powers and responsibilities with the supranational institutions of the EU. The European Commission now has the exclusive right to adopt legislative initiatives. The European Parliament has the right to participate in decision-making (under the "co-decision procedure"), which means that its agreement is necessary in the legislation process. The Council of Ministers adopts resolutions based on a qualified majority, which means that individual states cannot exercise a veto and a minority can be overruled. The most important EU instruments on asylum and migration policy, however, were adopted under the earlier intergovernmental procedures. To a large extent, they represent the lowest common denominator among the member states.

Cooperation between EU member states in matters of immigration policy has its origin in the realisation of freedom of movement, particularly the decision taken by France, Germany and the Benelux countries with the first Schengen Agreement in 1985 to abolish all checks on persons at their internal borders. Although the European Commission simultaneously formulated the first guidelines for a Community policy on migration, its power was called into question by the member states, and any cooperation unfolded initially outside of European institutions on an intergovernmental level. Thus the Schengen Agreement specified that the states would determine measures to safeguard inner security after the abolition of border checks. These flanking measures were concluded with the 1990 Convention implementing the Schengen Agreement. Alongside cooperation on the part of the police and judiciary in criminal matters, this included the standardisation of regulations for foreigners entering and remaining for short stays within the "Schengen area" (a single Schengen visa), border police cooperation, and in asylum matters, the determination of the member states responsible for an asylum application. The provisions relating to asylum policy were adopted in the same year in the Dublin Asylum Convention, which was ratified by all EU member states and, after difficult internal policy ratification processes, came into force in 1997. Similarly, the Convention implementing the Schengen Agreement was subjected to considerable delay and did not come into force until 1995. Whereas the so-called "Schengen acquis" of 1997 was transferred into European law with the Treaty of Amsterdam, the "Schengen area" was expanded step by step beyond the original five member states. Today the Schengen regulations apply in all EU member states with the exception of Ireland and the United Kingdom, Bulgaria, Romania and Cyprus. Iceland, Norway and Switzerland are associated with the Agreement as non-EU member states.

Intergovernmental cooperation within the Schengen framework can be regarded as the driving force and laboratory for EU-wide cooperation in matters of migration policy and, over and above that, in criminal and police issues. [2] The coupling of cooperation on migration policy with questions of internal security has also given rise to a focus on control aspects of immigration policy. [3]

This focus also determined the second phase of cooperation on migration policy under the Treaty of Maastricht. Influenced by the fall of the "Iron Curtain" and strongly growing numbers of asylum-seekers, the 1990s were markedly characterised by member states' domestic priorities. In the absence of strong European powers and responsibilities, changing EU presidencies were, to a large extent, able to shape the agenda, which resulted in a lack of coherence in, and commitment to, the integration process. The Maastricht Treaty of 1992 formalised the previously purely intergovernmental cooperation and set it on a new basis in the so-called "third pillar" [4] of the European Union.

However, no such clear basis of power was established at the European level until the Treaty of Amsterdam in 1997, which reflects the central priority that asylum and immigration policies now enjoy in the EU. The Treaty of Amsterdam transferred these policy areas to the supranational first, or Community, "pillar", integrated the Schengen acquis into the treaties, and determined – after a transition period of five years (de facto six) and with slight restrictions – the introduction of supranational decision-making rules. The Amsterdam treaty also contained a detailed list of measures to be adopted within these five years. The five years after the 1999 treaty entered into force coincided with the date of the accession of eight new member states on 1 April 2004, and so pointed to the urgent need to come to an agreement on central matters before the admission of so many new members.

Whereas the 2001 Treaty of Nice made no appreciable changes to this basis of power, the Treaty of Lisbon negotiated in 2007 extends decision-making rules based on qualified majority voting and increased the involvement of Parliament by extending its co-decision powers to the one field that had hitherto been excluded: labour migration. Germany in particular adheres firmly to its sovereignty over this policy area; during negotiations, it secured the right of member states to maintain control over the volume of admissions. Due to Ireland´s failure to ratify it, however, the Treaty of Lisbon cannot currently come into force.

In addition to the reforms in the treaties, decisions taken by the European Council [5] in recent years have also had a powerful influence on the dynamics and direction in which European cooperation has developed. Thus the 1999 Tampere European Council underlined the humanitarian basis of European asylum policy and the binding force of the 1951 Geneva Refugee Convention. A programme of action was agreed for five years to accompany the implementation of the Amsterdam treaty. In 2004 in Den Haag, the European Council extended this action plan for the following five years to include new focal points, in particular the external dimension of EU asylum and immigration policy. This aims at a stronger involvement of transit states and countries of origin outside the EU in the control of migration flows.

The directives and regulations concluded in the context of these institutional and political principles are discussed in the following sections.

Fußnoten

1.
"Communitisation" is a term used within EU institutions to denote the transferring of a matter from the second or third "pillar" to the EU first "pillar" so that it can be dealt with using the "Community method" described in this paragraph. See the EU's plain language guide to Eurojargon
2.
See Monar 2001.
3.
See Boswell 2003, Geddes 2007, Lavenex 2001.
4.
The Maastricht Treaty on the European Union organised EU policy areas into three so-called "pillars". The original treaties, particularly the Treaty establishing the European Community with its supranational decision-making procedure, became the first pillar. The newly-founded Common Foreign and Security Policy became the second pillar, and the relatively non-binding cooperation in the area of justice and home affairs, which until the Treaty of Amsterdam also comprised matters of asylum and migration policy, constituted the third pillar.
5.
The European Council brings together the heads of state and government of the member states, plus the President of the European Commission.

Sandra Lavenex

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