The European Union Constitution on Border Checks, Asylum, and Immigration

In: Population and development review, Band 30, Heft 4, S. 789-792

Abstract

The Treaty Establishing a Constitution for Europe was signed by the heads of government of the 25 European Union member states and three candidate states on 29 October 2004. The Treaty in effect is the proposed constitution, a long and elaborate document comprising 448 Articles (grouped into four Parts, with additional divisions into Titles, Chapters, and Sections, but numbered consecutively throughout) and 29 Protocols—annexes to the Treaty. Five articles and four protocols are concerned with issues of border control, immigration, and asylum policy. The articles are found in the chapter titled Area of Freedom, Security and Justice in Part III of the Treaty (The Policies and Functioning of the Union). These are reproduced below, along with one of the protocols (number 21). (Of the other protocols concerned with migration, one adds to the Treaty the provisions of the Schengen Acquis, the agreement among all EU members except the United Kingdom and Ireland, plus the non‐EU states Norway and Iceland, to eliminate border controls at their common frontiers, and requires acceptance of the Acquis by any new member. Two other protocols set out reservations on the part of the UK and Ireland on border control and asylum matters—basically, an "opt‐in" stance, allowing their participation in Treaty provisions on a case‐by‐case basis.)The constitution is highly detailed in scope but often vague in content, merely specifying topics on which policies will be developed or laws enacted. Thus the "common immigration policy" that is signaled in Article III‐267 is yet to be shaped, and the Treaty offers few hints of what it may look like. A reluctance on the part of member states to cede sovereignty in the area of immigration is not limited to the British Isles. It is seen also in the retained right of all members to restrict non‐EU labor migrants (Article III‐267, Para. 5) and to conclude bilateral agreements on border crossing with non‐EU states (Protocol 21). It is notable that the Treaty, while stressing that all nationals of member states are citizens of the Union with the right "to move and reside freely" within its territory, does not attempt to harmonize conditions or procedures under which migrants can acquire citizenship: indeed, it says nothing at all on the matter. (A "framework law," mentioned at various points in the text, is a law that prescribes the result to be achieved but leaves to each member state "the choice of form and methods.")Actual adoption of the constitution requires ratification by the governments of all EU members. If this demanding hurdle is passed (requiring parliamentary approval or, in some cases, a referendum), the constitution would come into force on 1 November 2006—or after the final ratification, if later. Under Article IV‐443, if the treaty is ratified by four‐fifths of members within the two years but is rejected by one or more states, "the matter shall be referred to the European Council"—the quarterly summit meeting of heads of government.