Table Of ContentVisa Policy
within the European Union Structure
Annalisa Meloni
Visa Policy
within the European
Union Structure
S
Dr. Annalisa Meloni
[email protected]
ISBN-10 3-540-28970-4 Springer Berlin Heidelberg New York
ISBN-13 978-3-540-28970-8 Springer Berlin Heidelberg New York
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Foreword
This book is my PhD thesis which I defended at University College London in
January 2005.1 would like to express my gratitude to my supervisor, Professor Ei
leen Denza, for introducing me, aheady during my LLM, to a subject which has
proven to be a most interesting and rewarding topic of research, and for having
been so supportive and encouraging throughout my PhD and afterwards.
I am grateful to my PhD examiners, Professor Marise Cremona and Professor
Alan Dashwood, for their helpful suggestions on how to improve the thesis for
pubHcation.
I would like to thank Professor Elspeth Guild, Mr. Gerard Beaudu from DG
JHA of the European Commission, and Mr. Nick Baird from the Foreign & Com
monwealth Office for discussing visa policy with me.
I would also like to thank the Arts and Humanities Research Board (AHRB) for
their funding.
Last but not least, I would like to thank Alfredo, Angela and Antonella Meloni
for all their moral and financial support throughout my PhD.
Annalisa Meloni
July 2005
Contents
Foreword V
List of abbreviations XI
Introduction 1
1 Visas in international and municipal laws 7
1.1 Limits on state discretion over the movement of persons across state
frontiers 7
1.1.1 State discretion over entry, residence and expulsion of aliens 7
1.1.2 Limits on the State's discretion over exit of its nationals 19
1.1.3 Basic international law rules governing movement across frontiers ..20
1.2 Legal and political significance of passports and visas 24
1.2.1 Definition and functions of passports 24
1.2.2 Definition and functions of visas 31
1.3 Conclusion 41
2 From early cooperation to failure of the Maastricht system 43
2.1 The proposed passport union 43
2.2 Pre-Maastricht Cooperation 46
2.2.1 The Single Market Project and interpretation of Article 8a 46
2.2.2 Intergovernmental cooperation: the Ad hoc Group on
Immigration and the Coordinators Group 49
2.2.3 The Schengen Convention 52
2.3 The Treaty on European Union agreed at Maastricht 64
2.3.1 The negotiations 64
2.3.2 The Third Pillar on Justice and Home Affairs 67
2.3.3 Article 100c EC 74
2.4 Progress on visa policy under the Maastricht Treaty 75
2.4.1 The Visa Regulation and the Draft External Frontiers Convention.... 75
2.4.2 The Joint Action on Airport Transit Visas 80
2.4.3 The Regulation on a uniform format for visas 81
2.4.4 Other measures 82
2.5 Conclusion 83
VIII Contents
3 Visa policy under Amsterdam: restrictiveness and flexibility 85
3.1 The negotiations leading to Title IV EC on visas, asylum,
and immigration 85
3.2 The legal framework under Title IV EC 88
3.2.1 The legal basis 88
3.2.2 The variable geometry arrangements 91
3.2.3 Jurisdiction of the ECJ 96
3.2.4 Provisions safeguarding national competence 97
3.2.5 Emergency situations 98
3.3 The Vienna Action Plan and the Tampere European Council 99
3.4 Characteristics of the emerging common visa policy 100
3.4.1 Restrictiveness 100
3.4.2 Flexibility 109
3.5 No progress 114
3.5.1 Airport Transit Visas 114
3.5.2 Free movement for visa holders 115
3.6 Measures under development 115
3.7 Changes proposed by the Constitutional Treaty 116
3.8 Conclusion 118
4 Consistency I: the cross-pillar nature of visa policy 121
4.1 Managing the three-pillar structure: the EU as a unity 121
4.1.1 Relationship between the Pillars 121
4.1.2 Consistency 127
4.1.3 The EU as a single system 135
4.2 Consistency of Union activity under the Maastricht Treaty 138
4.2.2 Disputes over competence 138
4.2.3 Cross-pillar measures 139
4.3 Consistency of Union activity under the Amsterdam Treaty 141
4.3.1 Nature of the common visa poHcy: mutual recognition of entry
conditions and cooperation under the intergovernmental Pillars 141
4.3.2 Local consular cooperation 155
4.4 Conclusion 161
5 Consistency II: the 'area of freedom, security and justice' 163
5.1 Consistency and maximization of Union activity 163
5.2 The European Council: formulating Union policy 164
5.2.1 Conclusions of the European Council 165
5.2.2 Common strategies 172
5.2.3 Imphcations of the role and approach of the European Council 174
5.3 The Council and the Commission 176
5.3.1 The Vienna Action Plan 177
5.3.2 Comprehensive Plan to combat illegal immigration
and trafficking in human beings 178
Contents IX
5.3.3 Integration of justice and home affairs concerns in
the EU external policies 179
5.3.4 Coordination of treaty objectives 183
5.4 Conclusion 187
Conclusions 189
Annex 199
References 203
Table of cases 215
Index 219
List of abbreviations
AFSJ Area of Freedom, Security and Justice
AJIL American Journal of International Law
Bull. EC Bulletin of the European Communities
BYIL British Yearbook of International Law
CCI Common Consular Instructions
CFSP Common Foreign and Security Policy
Cirea Centre for Information, Discussion and Exchange on Asylum
Cirefi Centre for Information, Discussion and Exchange on the Cross
ing of Borders and Immigration
CML Rev. Common Market Law Review
Coreper Committee of Permanent Representatives to the European
Community
EC European Community or Treaty establishing the European
Community
ECHR European Convention on Human Rights
ECR European Court Reports
EEC European Economic Communities
EFA Rev. European Foreign Affairs Review
EHRR European Human Rights Reports
ELJ European Law Journal
ELR European Law Review
EPC European Political Cooperation
ETS European Treaty Series
EU European Union or Treaty on European Union
Europol European PoHce Office
XII List of abbreviations
GATS General Agreement on Trade in Services
GATT General Agreement on Tariffs and Trade
HLWG High Level Working Group on Immigration and Asylum
ICAO International Civil Aviation Organization
ICCPR International Covenant on Civil and Political Rights
ICJ International Court of Justice
ICLQ International Comparative Law Quarterly
IGC Intergovernmental Conference
IOC International Olympic Committee
ILM International Legal Material
ILPA Immigration Lav^ Practitioners Association
JCMS Journal of Common Market Studies
JHA Justice and Home Affairs
LIEI Legal Issues of European Integration
NATO North Atlantic Treaty Organization
O J Official Journal of the European Communities
PJC Police and Judicial Cooperation in Criminal Matters
SEA Single European Act
SIS Schengen Information System
TEU Treaty on European Union
UDHR Universal Declaration of Human Rights
UN United Nations
UNTS United Nations Treaty Series
US United States
VIS Visa Identification System
YEL Yearbook of European Law
