From Black Market to Constitution: The Development of the Institutional Framework for EC Immigration and Asylum Law

Immigration and Asylum Law and Policy in Europe

Volumn 12, Issue , 2006, Pages 19-45

  Peers, Steve ^a  

^a NONE

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EID: 85201785247     PISSN: 15682749     EISSN: None     Source Type: Book Series    
DOI: None     Document Type: Chapter

References (114)

1. The existing rules, along with their practical application since the Treaty of Amsterdam entered into force, are examined in detail in Ch. 3.
2. Non-paper of 12 April 1991, published in Corbett, The Treaty of Maastricht (Longman, 1995), 267.
3. Article G of the text; this is comparable to the final Art. K.6 of the TEU.
4. Art. J of the text.
5. Draft Treaty of 18 June 1991, published in Corbett (n. 2 above), 293.
6. Art. J of the revised text.
7. Draft Treaty of 24 September 1991, published in Corbett (n. 2 above), 329.
8. Art. 100a bis of the proposal
9. Draft Treaty of 8 Nov. 1991, published in Corbett (n. 2 above).
10. Art. 100c EC, inserted into the EC Treaty by the TEU, and rescinded by the Treaty of Amsterdam.
11. Voting on the uniform visa format was subject to a qualified majority from the outset.
12. Decisions on this subject required a unanimous vote in Council and consultation of the EP.
13. The transfer powers (set out in Article K.9 of the EU Treaty) were never used.
14. See Case C-170/96 Commission v Council [1998] ECR I-2763 and the overview of these disputes in Peers, EU Justice and Home Affairs Law, 1st edition (Longman, 2000), Ch. 4.
15. SN 509/1/95, 1 Sep. 1995, p. 24.
16. Doc. SN 520/95, 5 Dec. 1995.
17. CONF 3860/1/96, 17 June 1996, p. 17.
18. CONF/3912/96, 18 Sept. 1996.
19. See also the Irish Presidency paper of the same date (CONF/3908/96, which raised general questions about JHA matters for discussion.
20. Provisions which would have constituted additions to the current Articles 63(3) and (4) are in italics. Deletions are noted in the footnotes.
21. Compared to the current Article 63(3)(a) EC, there would have been an objective of harmonisation and no reference to long-stay visas.
22. The final phrase was replaced by “repatriation of illegal residents” in the final text of Article 63(3)(b).
23. Compare with the current Article 63(4), concerning “measures defining the rights and conditions under which nationals of third countries who are legally resident in a Member State may reside in other Member States.”
24. CONF/2500/96, 5 Dec. 1996.
25. Doc. 3823/97, 19 Feb. 1997.
26. SN 2017/1/97 REV 1, date unknown.
27. See also an unnumbered and undated document, published in European Report, 26 Mar. 1997, which contains identical provisions.
28. Art. 63(2)(b), 63(3)(a) and 63(4), concerning asylum burden-sharing and legal migration.
29. SN 2555/97.
30. SN 600/97, 30 May 1997.
31. A draft Protocol on the Schengen acquis had been under discussion since the Italian Presidency report of June 1996.
32. The final provisions of Article 63, providing that “[m]easures adopted by the Council pursuant to points 3 and 4 [of Article 63] shall not prevent any Member State from maintaining or introducing in the areas concerned national provisions which are compatible with this Treaty and with international agreements.”
33. See further Ch. 4.
34. SN 600/97, n. 28 above.
35. On the initial IGC agenda, see “Efficient Institutions After Enlargement: Options for the Intergovernmental Conference” (Council doc. 13636/99, 7 Dec. 1999).
36. COM (2000) 34, 26 Jan. 2000.
37. COM (2000) 109, 1 March 2000.
38. COM (2000) 114, 14 March 2000.
39. Doc. CONFER/4708/00, 22 Feb. 2000.
40. Doc. CONFER/4710/00, 22 Feb. 2000.
41. Doc. CONFER/4734/00, 4 Apr. 2000.
42. Doc. CONFER/4737/00, 20 Apr. 2000.
43. Note that at this stage, Arts. 62(1), 62(2)(a) and 62(3) were implicitly excluded.
44. Doc. CONFER/4740/00, 10 May 2000.
45. Doc. CONFER/4747/00, 31 May 2000.
46. Doc. CONFER/4750/00.
47. Doc. CONFER/4767/00, 29 Aug. 2000.
48. Doc. CONFER/4769/00, 11 Sep. 2000.
49. Doc. CONFER/4770/00 and 4770/00 add 1, 14 Sep. 2000.
50. Doc. CONFER/4771/00, 20 Sep. 2000.
51. Doc. CONFER/4776/00, 28 Sep. 2000.
52. Doc. CONFER/4784/00, 18 Oct. 2000.
53. Doc. CONFER/4789/00, 26 Oct. 2000.
54. Summary (doc. CONFER/4790/00, 3 Nov. 2000).
55. Doc. CONFER/4795/00, 9 Nov. 2000.
56. The “included” groups would have been spelled out in a Protocol, which the Council could have amended unanimously. This proposal was sloppily drafted, as the proposed amendment to Art. 63(4) would not have expressly exempted stateless persons and refugees from its scope, and it is not clear whether amendments to the Protocol could have brought other third-country nationals within the scope of Art. 42.
57. Doc. CONFER/4800/00, 16 Nov. 2000.
58. Doc. CONFER/4810/00, 23 Nov. 2000.
59. See Docs. CONFER/4816/00, 6 Dec. 2000
60. CONFER/4815/00, 30 Nov. 2000.
61. For subsequent developments on this issue, see Chapter 4.
62. The following measures, based on Member States’ initiatives, were adopted between 1 Jan. 2004 and 30 April 2004: Reg. 377/2004 on immigration liaison officers’ network (OJ 2004 L 64/1);
63. Reg. 378/2004 on amending the Sirene manual (OJ 2004 L 64/5);
64. Reg. 871/2004 on future functionalities for the SIS (OJ 2004 L 162/29);
65. Directive 2004/82 on transmitting passenger information by carriers (OJ 2004 L 261/24); a Decision on joint expulsion flights (OJ 2004 L 261/28);
66. Decision on signs at border crossing points (OJ 2004 L 261/119). Indeed, the last three measures were adopted on the last possible date (29 April 2004).
67. The lapsed initiatives were: an Austrian initiative for a Regulation on safe third countries (OJ 2003 C 17/6);
68. Finnish initiative for Regulation on airport transit visas (Council doc. 10867/99, 9 Sep. 1999);
69. Portuguese initiative for a Regulation on freedom to travel for non-visa nationals after three months (OJ 2000 C 164/6);
70. Finnish initiative for Regulation on readmission of third-country nationals as between Member States (“internal readmission”) (OJ 1999 C 353/6);
71. German initiative for Decision on illegal immigration networks (Council doc. 13165/1/00).
72. The final initiatives by a Member State were two Italian proposals (OJ 2003 L 223/3 and /5).
73. OJ 2005 C 53.
74. OJ 2004 L 396/45.
75. For more on the implementation of the Decision, see Ch. 3.
76. For an overview of the background and impact of this Decision, see Peers, “Transforming Decision-Making on EC Immigration and Asylum Law”, 33 ELRev. (2005) 283.
77. See Ch. 3.
78. On the substance of the Directive, see Ch. 14.
79. For details of this argument, see Peers, “The EU judicial system and EC immigration and asylum law”, forthcoming.
80. Point 3.1 of the Hague Programme (n. 62 above) and point 1.3 of the implementation plan, adopted by the Council in June 2005 (OJ 2005 C 198/1).
81. Working document 5 of Working Group X, 6 Nov. 2002.
82. Working document 14 of Working Group X, 15 Nov. 2002.
83. Working document 18 of Working Group X, 19 Nov. 2002.
84. See respectively Working document 18 rev 1 of Working Group X, 26 Nov. 2002, and Conv 426/02, 2 Dec. 2002.
85. Final report of Working Group XI, Conv 516/1/03, 4 Feb. 2003.
86. On the scope of the current Art. 42, see Chs. 4 and 23.
87. At present, the decision-making rule is unanimity in the Council with co-decision of the EP.
88. On the scope of the current power in Art. 137 EC, see particularly Ch. 4. This would also have entailed that the UK, Danish and Irish opt-outs would apply to this power.
89. Conv. 614/03, 14 Mar. 2003.
90. Art. 10 of the proposal.
91. On the details of this issue, see Peers, EU Justice and Home Affairs Law, 2nd edition (forthcoming, OUP, 2006), Ch. 3.
92. Art. 11 of the proposal.
93. Art. 9 of the text.
94. See Conv. 644/03, 1 April 2003 and Conv. 644/1/03, 7 May 2003.
95. Summary report of the plenary debate on 3-4 April 2003 (Conv. 677/03, 9 April 2003).
96. Conv. 727/03, 27 May 2003.
97. Art. III-161 of this draft.
98. Art. III-162 of this draft.
99. Art. III-163 of this draft.
100. Conv. 836/03, 27 June 2003.
101. Conv 847/03, 8 July 2003;
102. see the summary report of the plenary session, 4 July 2003 (Conv. 849/03, 14 July 2003).
103. See the summary report of the plenary session, 9-10 July 2003 (Conv. 853/03, 23 July 2003).
104. The final Convention version of the agreed text of the Constitutional Treaty is at OJ 2003 C 169.
105. See Arts. III-18, III-26 and III-99 in Conv. 725/03, 27 May 2003.
106. On the scope of this power, see Ch. 4.
107. The former amendment first appeared in Conv. 836/03 (n. 87 above), as part of the compromises agreed during the final discussions on Part III of the Constitutional Treaty; the latter amendment is dated from the second full draft of the Constitutional Treaty (Conv. 802/03, 12 June 2003).
108. The signed text is published at OJ 2004 C 310. For the full text of the immigration and asylum provisions, see Annex 7.
109. IGC 38/03, 24 Oct. 2003.
110. IGC 50/03, 25 Nov. 2003.
111. See the final Article III-136 of the Constitutional Treaty.
112. Declaration 14 to the Final Act of the Constitutional Treaty.
113. A legal service report had argued that there was an overlap between the EU’s immigration powers and the social policy clause, and suggested either dropping the social policy clause or indicating that it was lex specialis as compared to the immigration policy clause (IGC 4/1/03 rev 1, 4 Oct. 2003).
114. For further details, see Peers, n. 14 above, ch. 4.