Eastern Enlargement, Schengen, JHA and all that...
Tracing the EU’s ‘Internal Security Policy’ towards Central and Eastern Europe

Lykke Friis

Danish Institute of International Affairs

‘Enlargement is a declaration of war on all industrious and hardworking people in Austria. We demand that the question of enlargement be removed from the EU’s agenda’

(Jörg Haider, January 1998).

 

1. Introduction

The end of the cold war spurred scholars focusing on European security to adopt a new common punch line: ‘after ‘89, security is no longer just, nor indeed primarily a military affair. Today societal and environmental security is far more central to European security’. At the closing of the ‘90s, the number one issue of this new security agenda seems to be internal security. Or to use Ole Wæver’s term: presently, issues such as immigration and internationally organised crime are increasingly being securitized (Wæver, 1997). Where the German chancellor used to refer to the deployment of Pershing II missiles as essential to national security, he is now labelling the maintenance of the unanimity rule on EU-asylum policy as a ‘piece of national self-preservation’ (Süddeutsche Zeitung, 19.6.1997). After the landing of Kurdish immigrants on the shores of Italy in January 1998, many government leaders followed in the footsteps of the German chancellor; stating that the influx was a threat to national security.

Despite the present high degree of securitization internal security has not yet captured a high position within international security studies (cf. Bigo, forthcoming), ₁ yet alone EU-studies. With regard to the latter the problem (according to Helen Wallace) is quite simply that work on internal security is ‘only’ taking place within ‘the encapsulated debate over the third pillar on Justice and Home Affairs’ (JHA) (Wallace, 1997: 230). Precisely because of this, internal security issues are rarely put into a broader security - or for that matter a CFSP- context. In the coming years, as pointed out by Wallace, it is therefore necessary to free JHA-issues from their present encapsulation and ‘link them to the new security agenda’ (ibid).

Following Wallace’s appeal this article seeks to depart from the present ‘encapsulation’. It does so by analysing the link between the EU’s internal security and eastern enlargement. Will eastern enlargement increase or diminish the EU’s (internal) security? Second, the article aims at analysing how the EU has approached the internal security challenge from the East since 1989. More to the point the article sets out to confront an inconsistency in the EU’s policy: on the one hand the EU claims that a strengthening of the Union’s internal security through a reform of the JHA-pillar is a necessary precondition for enlargement, and yet on the other hand, the EU still lacks a coherent, pan-European JHA-policy ₂ towards the candidates which would enable them to fulfil the acquis. Indeed, as this article will show EU-officials have often limited themselves to statements that eastern enlargement and JHA-issues is an ‘explosive cocktail’ - without embarking on detailed policy-studies; yet alone a detailed policy!

Only confirming Wallace’s ‘encapsulation-point’ the link between enlargement and internal security is underexposed in the literature. JHA-scholars have yet to confront the ‘Eastern’ challenge, whereas scholars working on eastern enlargement have largely side-stepped Pillar III issues; limiting themselves to statements that these matters ‘could overshadow the accession negotiations’ (Ludlow, 1996: 60).

The core argument of this article is that EU-security is highly contingent upon its ability to regulate its relationship with the CEECs in JHA-matters. Without such regulation the EU could be confronted by refugee waves and spill-over effects of organised crime in the CEECs - threats, which in the post-cold war era appear far more daunting than traditional military ones. The central problem is however that the EU’s most efficient policy-instrument to stabilise the new democracies to the East - eastern enlargement - in itself constitutes a security threat. By taking in countries which do not yet have efficient border control and judicial systems the EU risks internalising security problems. It is precisely this security dilemma which provides us with the first explanation to the above policy-inconsistency (JHA-reform is vital for enlargement; in practice the EU is not gearing the applicants for accession). Our second explanation is linked to the existence of two competing security referent objects - the various member states and the EU as such. Since each member state is still highly focused on protecting its own national internal security, the EU has had great difficulties in developing a clear, coherent policy. Or to put it more bluntly: the EU’s chances of developing a policy are hampered by the fact that it is not clear whose internal security is at stake - the security of the individual member states or of the EU as such. ₃

The paper is broken down into three parts. The first part briefly introduces us to the EU’s overall internal security field; outlining how the field has developed over time. The second section turns more specifically to the relationship between the EU’s internal security and the Central and Eastern European region. How can this region be seen as a threat and what is the link to eastern enlargement? The final section of the paper analyses the EU’s JHA-policy towards the CEECs; from the fall of the Berlin Wall to the Commission’s enlargement strategy (Agenda 2000).

 

2. Internal Security and the EC/EU - A National or Union Affair?

Internal security is a latecomer in the integration process. During the first decades the issue hardly made it to the EU’s agenda. The core reason for this is the close link between internal security and national sovereignty. Protecting its citizens against for instance crime, has thus traditionally been regarded as one of the state’s raison d’être. Precisely because internal security is perceived as being at the heart of sovereignty, the member states have been reluctant to transform it into a community affair. In reality, such a transfer could indeed also be perceived as a public admission that the nation state was no longer able to fulfil one of its chief tasks.

In the mid-70s a less categorical attitude materialised. Watching the cross-border activities of terrorist movements, such as the Rote Arme Fraktion, an informal co-operation (i.e. outside the EC-structures) was launched (Barrett, 1997a: 6-7). The informal co-operation on terrorism was soon followed up by co-operation on other areas such as drug trafficking. On both issues the Governments preferred to keep this co-operation as informal (and hence also secretive) as possible; leading to what has been called the ‘wining-and-dining-culture’ (den Boer, 1996: 389). The rhetoric was still unequivocally intergovernmental. Hence, it was the internal security of the member states, which was at stake; not the EC’s. The EC was only the instrument that could help the member states to achieve their goals!

The EC’s 1992 project - aiming at a ‘borderless’ Europe - was a major incentive for the member states to shift the focus more to the EC’s internal security. If the member states allowed goods, services, capital and peoples to circulate freely, internal security could hardly be achieved nationally. Common standards on border control, for instance, now seemed like a necessity. Indeed, it made more sense to refer to the EC’s internal security; protecting its common borders towards the ‘outside’ and developing a common police force. The domino-like revolutions in Central and Eastern Europe only magnified this point: if the Central and Eastern Europeans followed the example of the East Germans and started to ‘vote with their feet’ all EC members would be affected.

Due to the close link between internal security and sovereignty the EC members were however struggling hard to transform this pressure for more integration into concrete actions. Indeed, as pointed out by Ben Tonra the member states were here caught up in a security dilemma:

‘Governments sought to co-operate to meet a series of perceived threats arising from their ambition to establish a ‘border free Europe’. In so far, however, as that co-operation entailed a diminution of their own sovereignty and a loss of control over their own internal security policies, their sense of insecurity only grew’ (Tonra, 1997: 54, cf. also Anderson et al., 1994: 58).

In principle, the above security dilemma also revealed the existence of two competing security referent objects: on the one hand it was the EC’s security which was at stake; hence, triggering co-operation at the EC-level; while on the other hand the security referent object was still very much the state. As pointed out by Tonra the member states were exactly worried that EC co-operation could undermine their national internal security. ₄ Although co-operation was formalised and stepped up in the Maastricht Treaty, the member states therefore insisted on creating a separate third pillar; with many ‘no entry’ signs for the European Commission, European Parliament and the European Court of Justice. In other words: the EU states preferred to keep the co-operation as inter-governmental (and hence non-binding) as possible (for details, cf. den Boer, 1996).

That a common, supranational policy was still far away was also confirmed by the Schengen co-operation. Since it had been impossible for the EC - despite the commitment in the Single European Act - to dismantle border control, five EC-countries had already in 1985 decided to launch yet another ad-hoc arrangement outside the Treaty-framework, namely the Schengen co-operation. The core purpose was here to create a ‘pocket’ inside the Community, where free movement of persons was indeed established. At the Maastricht summit, however, no substantial effort was made to incorporate this Schengen-framework into the Treaty.

Considering the fact that Maastricht (due to the security dilemma) was an attempt ‘to drive a common policy with twelve pairs of hands at the wheels and twelve feet on the brake’ (Tonra, 1997: 55), it should come as no surprise that the post-Maastricht period saw no major steps forward. As a matter of fact, in all reports leading up to the 1996-InterGovernmental Conference Pillar III was stigmatised as the least efficient part of the EU-framework (Commission, 1995, 1996, The Reflection Group, 1995). Once again headway was made outside the Treaty framework. In March 1995 the Schengen Implementing Convention, clarifying how the 1985-Schengen Agreement had to be applied in practice, finally entered into force. The Agreement had already been signed on 19 June 1990. Due to several factors (such as technological difficulties, disagreement about the stringency of drugs and immigration policy) five years were however to pass before the Agreement was implemented. When the Agreement finally entered into force the number of participating countries had increased by two, namely Spain and Portugal. ₅ Hence, with some restrictions, free movement of persons was established between Belgium, the Netherlands, Luxembourg, France, Germany, Portugal and Spain.

 

3. The EU’s Internal Security and the CEECs - ‘Damned if you do; damned if you don’t’?

As shown in the previous section, the EU has had great difficulties in creating a common, JHA-policy. The national security dilemma was here cast as the villain: on the one hand member states, due to the trans-national character of internal security problems, have a major incentive to co-operate at the European level. Since this co-operation, on the other hand also implies a loss of control over their own national internal security, member states have so far refrained from ‘going all the way’. In other words: internal security at the EU level is a ‘half-way-house’.

At the beginning of the ‘90s this halfway house was confronted by a major external challenge from the East. The purpose of this section is to explore how ‘the East’, i.e. the CEECs, could be seen as a threat to the EU and its member states. Furthermore, it analyses the relationship between EU-internal security and enlargement. The following section leaves the rather abstract level and looks upon the EU’s concrete actions. How has the EU tried to respond to the challenge from the East?

Following the securitization rhetoric of EU state leaders, the revolutions in Central and Eastern Europe could be seen as threatening the internal security of the member states (and hence the EU) in two ways. The core threat was here linked to immigration: due to the disastrous economic situation, there was a danger that large segments of the Central and Eastern European public would try to reach the ‘wealthy West’ as economic refugees. Already in 1989, 1.3 million had decided to leave the ex-communist countries (Rasmussen, 1997: 46). If the historically unique transformation process (where the CEECs had to establish both a market economy and a democratic system at the same time) should falter the pressure on the Western borders would only increase even further. The worst case scenario was obviously that a breakdown in the transition process could spark off military conflicts in the region, for instance between ethnic groups. If such conflicts were to break out one could not exclude the possibility of major refugee waves. Like any other immigration wave, the great influx of foreigners could not only impose an economic burden on the EU countries, but also be perceived as a threat to national identity and culture (Heisler & Layton-Henry, 1993: 156-157). To make matters worse the perceived threat from the CEECs was paralleled by an equal threat from the Maghreb-countries. Indeed, for countries like Spain, Portugal, France and Greece this threat seemed even more daunting.

The second key threat was connected to crime. As pointed out by Robertson, the immediate period after the fall of the wall was marked by an unchallenged consensus among European police services and politicians that the CEECs were a ‘focus for rapidly spiralling crime’ (Robertson, 1994: 37). What seemed to lie in the cards was a ‘bonanza for crime’, especially because the states in the region still had to establish new, untainted judicial systems from scratch and because the economic crisis in the region provided a major incentive for enrichment through crime. ₆ Since many of these criminal activities would only become truly lucrative if they were directed to the West, the EU member states seemed to be in for a number of ‘spill-over effects’, such as increased drug trafficking and the establishment of Central and Eastern European Mafia-like gangs on EU-territory. ₇

Precisely because the EU was now confronted by a common, external threat from the East, one could argue that the member states were presented with a major incentive to develop a common policy. This incentive was only strengthened by the fact that member states could hardly dissolve the ‘threat-potential’ unilaterally. The most wide-ranging way to develop such a common policy would be to move the EU’s boundary to the East, i.e. embark on enlargement. By offering membership, the EU could thus hope to stabilise the democracies and improve the economic situation - hence, remove the key incentive to move to the West. Second, it could hope that EU-membership would speed up and consolidate the state-building process, further judicial reform and the establishment of an independent effective police machinery. Finally, a stabilisation of the region could also amount to burdensharing; transforming the CEECs into EU-buffer zones towards the even more unstable Russia.

Although the incentive to move the boundary was substantial a number of factors pulled in the other direction. At least on paper, enlargement could also be seen as a threat to the EU’s security:

1. Enlargement opens up another security problem - namely Germany
The first factor pulling in the other direction was linked to the ‘never-ending-story’ of European security, namely the German question. By opening the membership doors to the CEECs France (but also the Benelux countries) feared that the EU would transform itself into an instrument of German domination. Germany would simply ‘get its old interest sphere’ inside the EU-boundary, at the same time as the increased number of members threatened to dilute and transform the EU into a more typical form of inter-state co-operation (where the largest states had the greatest influence).

2. Enlargement could accentuate the present (potential) internal security problem
Second, the inclusion of the CEECs within the EU-boundary could also accentuate the present (potential) security problems for the EU. First of all, full membership of the EU could in the last resort imply that the CEECs were allowed to move unrestrictedly to the West; hence at least potentially opening for a substantial influx of immigrants. ₈ What is just as important is that enlargement could also lead to an ‘import’ of security problems. If the CEECs were taken in before they had stabilised their law-enforcement and judicial systems, the ‘spill-over’ of organised crime could increase. Due to the transnational character of the security problems one could go as far as claiming that enlargement would not really solve the problem, but rather move it: the former Soviet Union would only replace Poland, Hungary etc. as a potential threat to the EU. Indeed, cynics could here be tempted to point out that the threat-potential is far more acute in these countries than in for instance Poland.

3. Enlargement could give the JHA-pillar the kiss of death
The final factor pulling away from enlargement was the JHA-pillar itself. If it had been impossible to create an efficient co-operation among the present 12 (or 15) members, wouldn’t the situation be even grimmer with 25 or more members? One solution was obviously to depart from the intergovernmental decision-making structure and launch a full-fledged supranational pillar, including QMV and a right of initiative for the Commission. In reality, such a step would merely trigger the national security dilemma: the policy would arguably become more efficient, but the dilution of sovereignty would also increase insecurity.

Based on the above it is fair to say that the EU (in its relations with the CEECs) was caught up in a dilemma. Quite strikingly, the dilemma facing the EU is somewhat similar to the dilemma that confronts the member states. Just like the member states, the EU (due to the transboundarial character of internal security problems) has a major incentive to co-operate internationally - in our case with the CEECs. However the EU also fears that this very co-operation will transform itself into a threat to its security, mainly due to a loss of control, but also because it will be ‘importing’ countries with nascent judicial systems and a high potential for immigration. The core question is obviously how the EU has tried to steer through this dilemma.

 

4. The EU’s JHA-policy towards the CEECs - A Complex Balancing Act

4.1. From Enlargement Avoidance to a Pre-Accession Strategy

In the immediate period after the geopolitical earthquake in ‘89, the EC’s policy response towards Central and Eastern Europe was hampered by the re-emergence of the German question on the security agenda. The collapse of the bipolar system had liberated not only Central and Eastern Europe but also Eastern Germany; hence once again catapulting German unity on the agenda. Since the failure to address this core question could have substantial repercussions on the EC, it was quite natural that the member states decided to give this issue their undivided attention. By default, Central and Eastern Europe became a second priority. Instead of developing clear problem-solving proposals, especially targeting the unique transformation process in Central Europe, the EC simply looked into the toolkit of the past; offering the CEECs association agreements similar to those other third countries had received. Emphasising the EC’s fear of immigration from the East, the EC actually offered the CEECs less than for instance Turkey. Unlike the Turkish Association Agreement, the Central and Eastern European version did not contain any clear provisions on free movement of workers (Cremona, 1997: 197). ₉ As a matter of fact, the so-called Europe Agreements were almost silent on what was soon to be labelled JHA-issues.

Enlargement as such was explicitly ruled out; mainly, because it seemed to imply a dilution of the integration process exactly at a time where deepening (in order to tie in Germany) was given utmost priority (for the EC’s policy, see Friis, 1997). A majority of the member states also hoped that the Europe Agreements would be sufficient to stabilise the situation in the Central and Eastern European region.

Where the EC was reluctant to deal with JHA-issues, the Schengen countries embarked on a closer co-operation with at least one of the CEECs. Following German pressure the Schengen countries already in mid-1991 lifted the visa-requirement for Polish citizens to ‘Schengen-land’. In what seemed to be a quid-pro-quo, the Poles signed a Re-admission Agreement with Schengen, obligating the Polish authorities to re-admit any person into Poland who had crossed the border between Poland and Germany without the necessary paperwork (Pollet, 1997: 229). Not surprisingly, the Re-admission Agreement provided Poland with a major incentive to tighten its own visa requirements for nationals originating from a number of developing countries; in practice ‘copying’ the various Schengen-rules. Otherwise, Poland could quickly be forced to readmit a substantial number of foreign nationals. As pointed out by d’Oliveira the consequence of the Re-admission Agreement was indeed that Poland acted as an effective ‘cordon sanitaire’ for the Schengen territory (d’Olieveria, 1993: 172). Poland simply followed the Schengen visa- and asylum policy, at the same time as it had to readmit any person who nonetheless ‘made it’ into Germany. ₁₀ Although the Re-admission Agreement was therefore very much in the interest of the Schengen countries, they still refrained from signing similar Agreements with other CEECs. The core reason for this is once again the ‘control-factor’. Apparently, the member states still opted for as much national control as possible, preferring bilateral Re-admission Agreements to multilateral Schengen Agreements (Pollet, 1997: 231). ₁₁

It was only after the EU had ratified its policy response to German unification (the Maastricht Treaty) that the EU really turned its attention to Central and Eastern Europe. After the Edinburgh Summit in December 1992 a German-led coalition abandoned the policy of association and started to advocate for Central and Eastern European accession to the EU. A part of the explanation for this significant policy shift lies in external factors - the deteriorating security environment led to constant pressure from the CEECs for a clear commitment on their EU membership at a time when they also sought security guarantees from NATO. The chief explanation should however be linked to the realisation that the EU was unable to protect itself against spillover effects of political instability or conflict along its borders; a point which was driven home by the refugees waves spurred by the war in Ex-Yugoslavia. Since it was impossible to build a ‘Fortress Europe’, Germany, in particular, argued for a stronger commitment in the region in order to stabilise it. Although this objective could possibly have been achieved through means below the membership line, the EU at its European Council in Copenhagen decided to offer full membership (cf. Friis & Murphy, 1997: 17). Looking at the high number of Central and Eastern Europeans, which had settled in Germany, the German incentive for enlargement becomes even clearer: by enlarging Germany could hope for some burdensharing!

In the short-term, the membership commitment was not accompanied by a timetable for accession. Instead, the prospect of membership was offered as a ‘carrot’ to support the reform-process in the CEECs (ibid.: 18). Therefore, the consequences of accession (for instance on internal security) were not thought through. As a matter of fact, the Commission’s ‘strategy-papers’ in the run up to the Copenhagen summit largely side-stepped internal security, especially with regard to immigration. However some practical co-operation, centred on drug trafficking and the combat of organised crime was established. An important step was taken at a summit in Berlin in September 1994 where the CEECs and the EU recognised international crime as a common challenge (Pollet, 1997: 232).

The strategy of stabilising the region through the prospect of membership was only confirmed at the Essen-summit in December 1994. Here the EU took care to underline all those tasks which the applicants had to undertake before the membership offer could be implemented. Precisely by requiring the CEECs to do as much as possible before they joined, the EU could both postpone enlargement and minimise the ‘import’ of security problems, once enlargement actually took place. Although the Commission before the summit had stressed the necessity to deal specifically with immigration issues, the pre-accession strategy did not focus on this issue. In its communication in the run up to the summit the Commission had thus stated the following:

‘The countries of central and eastern Europe are considered as one of the gateways towards the Union...Co-operation between the Union and these countries could help the establishment of adequate procedures and standards in the interests of both partners and as essential preparation for eventual membership of the Union.’ (Commission, 1994: 3).

In the so-called White Paper on the Single Market, which was presented at the Cannes summit in June 1995, the Commission was just as reluctant as the member states to deal with JHA-related issues. Despite the fact that the White Paper was supposed to provide the applicants with an overview of all the Single Market legislation they had to apply, the Commission simply side-stepped one of the cornerstones of the Single Market, namely the free movement of persons. The way this was done was slightly ironic: in its table of contents the Commission announced a chapter of free movement of persons, which it did not write! As pointed out by Gaudissart and Sinnaeve this ‘error’ was probably symptomatic to the controversial character of the issue (Gaudissart & Sinnaeve, 1997: 57).

Although the Commission was apparently of the opinion that even the outlining of the JHA-acquis (including free movement of persons) was too controversial, the period after the Essen-summit did see some movement on the more practical level. After the Essen summit, JHA was thus included in the so-called structured dialogue; opening the door for several meetings between EU ministers of justice and home affairs and their Central and Eastern European colleagues. ₁₂ In reality, the EU had however not been able to confront the security dilemma, outlined in the previous section. It felt the need to enlarge, but feared the consequences of enlargement so much that it evaded the issue!

4.2 From Amsterdam to Agenda 2000

That the EU worried enlargement could lead to the ‘internalisation’ of security problems from the East became even clearer once the EU shifted gear from offering membership to actually preparing it. The forum for this change of pace was the 1996-InterGovernmental Conference. Already at the Cannes Summit in 1995, the member states had decided to put the JHA-pillar on the IGC-agenda. In the run up the IGC, the Reflection Group which was preparing the IGC, made a direct link between JHA-reform and the forthcoming enlargement:

‘The prospect of forthcoming enlargement implies a qualitative change in the need to guarantee the internal security of citizens of the Union more effectively’ (Reflection Group, 1995).

Indeed enlargement - besides the wish to ‘bring the EU closer to its citizens’ - was the key motor behind the JHA-reform. If enlargement had not been on the agenda, the EU and its member states would probably have been able to live with the status quo (author’s interview, Danish IGC-team). Precisely because the EU was about to take in countries whose asylum, immigration and border control policy was still rather rudimentary, the majority of the member states opted for a JHA-reform, where these specific policy areas were developed. Without common, clearly formulated rules, the EU could soon find itself subjected to an immigration influx from the CEECs after their accession; for instance due to lax border control and visa-policy among the newcomers. The fear surrounding EU-member states was apparently so overwhelming that a French-led coalition made JHA-reform a precondition for enlargement: no JHA-reform; no eastern enlargement (ibid.). The very fact that enlargement would increase the number of participants in the already fragile JHA-pillar probably also played a role: if the JHA-pillar was ever to become efficient, it was necessary to reform it when only 15 member states were sitting around the negotiation table and not 25. Finally, JHA-reform was also led by the fear that enlargement could trigger more crime within the EU-area; hence, forcing the EU to put police co-operation back on the drawing board.

The result of the above enlargement incentive were quite dramatic changes of the internal security area in the new Treaty of Amsterdam (Monar, 1997a: 1). Not only did the member states decide to upgrade the development of ‘an area of freedom, justice and security’ into one of the EU’s chief objectives - an objective to be fulfilled within a five year period. They also decided to transform the JHA-area into an actual EU-policy. Important parts of the JHA-pillar (visa, asylum, immigration and other policies) were thus ‘communitarised’, i.e. moved to Pillar I. Quite strikingly, it was also decided to move the Schengen co-operation into the EU-framework; transforming its 3000 pages of law text into EU-acquis. In practice, the common pressure from the East had therefore caused a shift in the balance between ‘national’ and EU internal security; putting far more stress on the EU-side in the symbiosis.

That co-operation in the JHA-area is still considered ‘special’ becomes clear when the fine print on the ‘communitarisation-deal’ is read. Precisely because JHA-issues trigger the security dilemma at the national level, the member states preferred to keep as much control as possible; postponing the decision to move to majority voting and Commission influence for a five-year period. ₁₃ Or to use the terms of this paper: a wide-ranging reform of the JHA was blocked by the existence of two competing referent objects of internal security! Quite strikingly, Helmut Kohl was here at the forefront of this blockade: since one could not exclude that majority voting on asylum policy could force Germany to take in even more asylum seekers, Kohl preferred to play it safe; keeping the ‘national handbrake’ for five more years (Garrett, 1997b: 123). ₁₄

Although one can argue that the JHA-reform is at least potentially circumscribed the consequences for the enlargement project appear quite substantial. Indeed, it is possible to argue that the EU prepared for enlargement by increasing the membership threshold; hence, making it more difficult for the CEECs to join (see also Duff, 1997: 53, Wallace, 1998: 10). Or to put it differently: precisely because the EU faced the dilemma, where enlargement was both pictured as a necessity and a threat the EU opted for a protection strategy. The barriers to entry in this specific field have simply been raised. The core example is here the incorporation of the Schengen-acquis. Exactly by making border control an EU-affair the EU would be able to use the following line of argumentation in the accession negotiations: since Schengen is part of the acquis, you will have to incorporate the entire legislation before you can join. ₁₅ Oddly enough, the EU did not try to make the enlargement-road less bumpy by applying the newly established flexibility clauses to the newcomers. Thus, as pointed out by Monar, the new Treaty does not offer any specific instrument for those new Member States not yet capable of accepting the Union’s acquis in justice and home affairs (Monar, 1997b: 23). Indeed, art. G of the Schengen Treaty explicitly rules out the use of transition phases (Duff, 1997: 53).

That Amsterdam is more of an EU protection-strategy than a pan-European enlargement strategy - actually enabling the CEECs to become members of the EU - is only confirmed when attention is turned to the European Commission’s Agenda 2000. As a matter of fact, Agenda 2000 is the key example of the inconsistency in the EU’s policy, which was highlighted in the introduction: on the one hand member states frame JHA-reform as a necessity for enlargement, on the other hand, when it gets to the practical task of gearing the applicants for enlargement, the EU’s policy is almost non-existent. Despite the centrality of the JHA-issue, the Commission, in the Agenda 2000 actually refrained from an ‘in-dept analysis’ (EIPA, 1997: 17). ₁₆ Yes, it simply restricted itself to an overview of the long and winding road the applicants still had to travel on this area. The key message here is that only four applicants would be able to meet the acquis ‘within the next years’, assuming that progress continues. A country like Lithuania would therefore first have to demarcate its border towards both Kaliningrad and Byelorussia. Even the so-called first-wavers (Poland, Hungary etc.) would be difficult and time consuming to incorporate, since they would ‘be inexperienced in practical co-operation on the range of issues dealt with in this area’. Their inexperience in these matters would also trigger a considerable degree of distrust in Western Europe, the Commission pointed out. ₁₇

Quite strikingly, the grim ‘acquis-examination’ is not followed up by thorough discussions of how the CEECs would actually be able to fulfil the acquis; yet alone a detailed technical assistance programme. ₁₈ All the Commission does is to emphasise that the CEECs cannot be offered any derogation or transition phases. Indeed, precisely because enlargement implies the accession of countries which border areas where the internal security challenges are ‘at their most acute’, ‘it is important for candidate countries to adopt these measures [the acquis] at an early stage before accession’ (Agenda 2000, 1997: 53; author’s italics).

The core explanations behind the above inconsistent policy have already been indicated several times in the article. Of key importance is the EU’s security dilemma: enlargement is seen as the only policy-instrument, which can ‘diffuse’ the potential internal security problems in the East. Since enlargement implies taking in countries which have not yet established strong, efficient judicial systems and border control, it does however also in itself constitute a security threat for the EU. In this dilemma the EU has so far opted for a protection-strategy: it has acknowledged the need for enlargement (and hence also JHA-reform), but precisely because of the security risks which enlargement also implies it has refrained from actually gearing the applicants for membership. To a large extent this protection strategy should also be seen as a consequence of the two competing security referent objects: if the EU had truly prepared for enlargement, the different member states would quickly have feared that this preparation and the actual enlargement could undermine their national internal security.

The informal Council meeting in Birmingham between the EU’s ministers of justice and home affairs in late January 1998, in principle only confirmed the core of Agenda 2000. In the run up to the meeting the Commissioner responsible for JHA-issues, Anita Gradin stressed that the CEECs’ present inability to take on the acquis could postpone enlargement. Especially the inefficient border control policy was highlighted:

‘They [the CEECs] did not deal with border controls before because it was Big Brother who did it. So they have to start from scratch’ (Reuters, 28.1.1998). 19

In practice, the EU’s insistence on the JHA-acquis was even more pronounced. Referring directly to the recent experience with Kurdish migrants, Britain’s Home Secretary Jack Straw, underlined that the EU would have to judge ‘the readiness of applicant states to take on the full responsibilities rigorously’ (Reuters, 30.1.1998). Just as in Agenda 2000, the key stress on JHA-issues did however not lead to a concrete pan-European policy. As a step forward, it should be said that the Commission will now prepare lists outlining priority action areas for each country (ibid.). ₂₀

Although one should take care not to confuse the Commission’s Agenda 2000 (or the Birmingham summit) with the final accession negotiation result, two central question stand out. The first question is linked to the timing of accession: if the CEECs are required to fulfil the acquis before they join the Union - and without major financial assistance - when will they actually be able to become members of the European Union? As illustrated by even Austria’s difficulties in becoming Schengen-reif and especially also sketchy estimates that several billions of ECU will be required just to take in 3-4 applicants (Monar, 1997b: 12), a pessimistic membership date seems in order. Should a late membership indeed materialise one can at least not exclude that the so-called second-wave countries (i.e. those countries which will not join in the first enlargement wave) will suffer from reform-fatigue. The result of this could very well be that the EU is confronted by what it set out to avoid: an increase in the ‘threat-potential’ from the East; now just from the ‘second wave-countries’. ₂₁

The second question, which Agenda 2000 leaves unanswered, is the link between enlargement and overall stability on the continent: how can it be avoided that the application of the Schengen rules in for instance Poland and Hungary will be perceived as new a division in Europe? The reaction from the Ukraine and Byelorussia to Poland’s decision already now to streamline its visa-policy to the EU’s bodes ill for the future: both countries perceived the streamlining (which took place in January 1998) as an ‘unfriendly act’, which from one day to the other barred Ukrainians and Belarussians from selling their goods on the Polish ‘bazaars’ - hence undermining a very important trade link (Die Welt, 17.2.1997). To show their opposition, tens of thousands of Belarussians (but also Polish traders dependent on the link) demonstrated against the new visa-policy. Romanian officials are also already fearing the effects of Schengen: will the accession of Hungary for instance lead to a situation where Romanians will need a visa to travel to Hungary? And could one here imagine that Hungary would introduce special visa rules favouring ethnic Hungarians, threatening ethnic harmony in Romania? A Romanian ambassador has summed up the fear as follows:

‘Schengen may create a more effective dividing line than anything seen since the cold war’ (Financial Times, 23.2.1998).

 

5. Conclusion - Towards a Pan-European Strategy

This article has tried to shed light on the linkage between the JHA-pillar and eastern enlargement. Following Helen Wallace and others, it has argued that EU security will to a large extent be determined by the EU’s ability to develop an effective pan-European policy on issues such as immigration, asylum and the fight against crime. The key conclusion is that the EU is still struggling to develop such a policy. As a matter of fact, the EU’s policy is characterised by a major inconsistency: the EU constantly underlines the importance of enlargement and that enlargement requires JHA-reform. However, when it comes to the practical task of actually gearing the applicants for accession the EU’s policy is very fragmented. ₂₂

The core argument of the article is that the undeveloped pan-European strategy and especially also the policy-inconsistency can be explained by the fact that the EU is caught up in a security dilemma: on the one hand it has launched the eastern enlargement process as a kind of ‘preventive internal security policy’; ‘rescuing’ the EU from the spill-over effects of a break down in the transformation process. On the other hand, precisely by enlarging the EU is also confronted by a number of ‘internal security’ problems. Basically it runs the risk of importing organised crime or illegal immigrants from countries, which have not yet established strong judicial systems or effective border controls. The EU-policy formulation process is only further hampered by the existence of two referent objects of internal security: although member states now accept that internal security is an EU-issue, the concern for ‘national’ internal security often pops up; especially when the ‘going gets tough’.

In this complex balancing act the EU has so far opted for a ‘protection-strategy’. The prime example is the incorporation of Schengen in the Amsterdam-Treaty: Instead of developing a pan-European strategy the EU has actually made it more difficult for the CEECs to join by insisting that they should also be able to take on the entire Schengen acquis. If one adds Agenda 2000 - with its clear refusal to grant any transition phases with regard to JHA - this ‘protection-strategy’ only becomes clearer: in order to protect the EU from importing internal security problems after enlargement, the applicants can only join when they are fully able to take on ‘the acquis, the whole acquis and nothing but acquis’. That this strategy is however not without costs should be clear from the above central dilemma: if the EU increases the membership threshold and sets unrealistic entry criteria, some applicants could be left outside the door for a long time. The result of this could be that the EU is confronted by exactly those internal security problems, which it set out to avoid - extra-territorial spillovers, such as immigration and organised crime.

In the future the EU will therefore have to replace its protection strategy with a more pan-European one. As a minimum this replacement should result in a far more active JHA-policy towards the CEECs. Instead of sidestepping the issue, the EU should develop detailed ‘training programmes’ - outlining how the applicants could become ‘Schengen-reif’ and able to take on the remaining acquis. Unavoidably, large pre-accession funds would have to be tied to these training programmes. Furthermore, in order to avoid any further postponement of the enlargement the EU will have to re-consider the Commission’s flat rejection of transition phases. Finally, the strategy should also aim at targeting those countries that are not about to join the EU in the first wave (Romania, Byelorussia, Russia, and Ukraine). Precisely because internal security is transboundarial, a strategy that only focuses on the actual newcomers will not be able to solve the EU’s internal security problems. Indeed, if the EU is not able to develop closer ties to its ‘new near abroad’ enlargement could actual lead to less security since the EU will be shifting its border right up to areas which are potentially more unstable than the newcomers!

 

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Notes

Note 1: Three central exceptions are Wæver et al. (1991), Anderson et al. (1994) and Miles et al (1995). Back.

Note 2: Although free movement of persons legally falls under Pillar I, the article will - due its close connection to internal security - deal with it as part of the JHA-policy. Back.

Note 3: To a large extent the above confusion about whose internal security is at stake is linked to what Didier Bigo has called the deterritorialisation of security: ‘Security can no longer be conceived as protection behind state borders. Although numerous texts uphold this vision of a ‘fortified castle’ or a fortress nation of Europe, it is undeniable that the security of individuals has become deterritorialised. It now depends on networks, agreements between countries and security agencies and prviate insurance mechanisms’ (Bigo, forthcoming: 7). Back.

Note 4: The unwillingness to move to a common policy should also be seen in connection with the free-riding problem: countries, situated far away from the immigration or crime threats were not in particularly eager to embark on a common policy, since this policy would only force them to embark on burdensharing. The difference in legal tradition probably also plays a role (cf. Heckmann & Tomei, 1997). Back.

Note 5: Italy signed the Schengen Agreement in 1990, Spain and Portugal in 1991 and Greece in 1992. All countries were granted transition phases in order to complete the physical preparations needed for the strengthening of security controls at external borders. For Italy this transition phase will transpire in April 1998. Austria signed the Schengen Agreement in April 1995 and obtained a transitional period until 1 July 1997. Denmark, Sweden and Finland have finalised their ‘membership negotiations’ and will apply the Implementing Agreement before year 2000. Back.

Note 6: An overlapping problem was the bad reputation of the police forces. After almost 50 years of communist rule it would take years before the police force would appear like a legitimate public institution. And what was more: it would also take a long time before the police service would look like an attractive career opportunity and hence be able to attract qualified personel (cf. Robertson, 1994) Back.

Note 7: To be sure, the change of winds in Central and Eastern Europe could also threaten the EU’s more classical, military security: if ethnic conflicts developed into war the EU could be forced to intervene. As the Yugoslav-crisis indicated one could not exclude the possibility that EU-members suddenly found themselves on opposing sides in a military conflict. Back.

Note 8: According to Baldwin, however, this danger can easily be exaggerated. Most likely, only 5-10% of the CEECs labour force would take the opportunity to move to the West. On the other hand, as Baldwin also points out, these 5-10% would still constitute a threat since the vast majority of them would go to Germany and Austria - hence, triggering a major problem for two EU-member states. At the beginning of January 1998, the leader of Austria’ far-right party Jörg Haider has indeed securitized this issue (see quotation at the beginning of the paper). Back.

Note 9: The Europe Agreements left access to the labour market firmly within the hands of the member states, and there is no right to a work permit even for those who are legally resident. Member states were merely urged ‘to examine the possibility’ of granting such permits (Cremona, 1997: 197). Back.

Note 10: One of the consequences of the above was that the burden of migration was shifted towards the Eastern borders of the Schengen territory. Despite economic aid to run for instance Polish refugee camps, Tony Judt has taken a very critical view towards Schengen: ‘The object of Schengen is to make of Poland, the Czech Republic, Slovakia, Hungary, Croatia and Slovenia, as well as the Mediterranean Sea, a sort of democraphic limes, tampon states that would aborb and block the westward or northward movement of desparate peoples - their own or those to the south and the east of them’ (Judt, 1996: 125). Back.

Note 11: With regard to Bulgaria and Romania the above unwillingness was also linked to the refusal to lift the EC-visa-requirements for Bulgarian and Romanian citizens. Especially Bulgaria tried to embark on a similar quid-pro-quo as Poland: The EC lifts the visa-restrictions; Bulgaria signs a Re-admission Agreement (Pollet, 1997: 227). Back.

Note 12: The Phare programme was also reformed so that assistance could be targeted towards JHA areas. Back.

Note 13: Since the passage to majority voting remains subject to an unanimous decision there is no guarantee that QMV will ever be introduced on these issues. Precisely because of this Monica den Boer has characterised the much ‘heralded extension of Community competence’ as ‘a bit of a sob’. She also points out however that this was partly compensated for by the fact that the right of initiative, which during the initial five years will be shared between the member states and the Commission, will automatically become an exclusive right for the Commission without further political ado (Den Boer, 1997: 9). Back.

Note 14: Another example of the ‘special status’ was the decision to maintain a separate intergovernmental pillar for police and judicial co-operation. Apparently these issues were still too sensitive to be moved to pillar 1. Back.

Note 15: Commission officials have already confirmed the above interpretation: ‘In the Treaty of Amsterdam, there is a requirement that new applicants take on Schengen in its entirety, and several present EU members will insist on that’ (Financial Times, 23.2.1998). Back.

Note 16: The same goes for the section on free movement of persons: in a very brief section the Commission argues that enlargement will not lead to a ‘flood’ of migrants. Measures will however have to be adopted to alleviate adjustment strains. Back.

Note 17: The parallel to the crisis in the Schengen-co-operation triggered by the influx of Kurdish refugees into Italy in January 1998 is thought-provoking: If Germany does not even trust its long-term EU-partner Italy to guard its borders efficiently, would it trust Poland? A Commission official has recently referred to the ‘trust-problematique’ in another connection: ‘Do you really think that the French and German police will be ready to share confidential information with the Polish or Estonian police in five years time?’ (Financial Times, 2.2.1998). Back.

Note 18: Since the CEECs will receive more accession aid - especially for institution building - more money for JHA-issues will however materialise. Back.

Note 19: Precisely because of the limited experience some scholars, such as for instance Timothy Snyder from Harvard, have already went as far as arguing that the EU should take over the border control: ‘We have got it backwards. It is foolish to ask the present badly paid handful of Polish border guards to tighten Poland’s eastern border’ (Financial Times, 23.2.1998). Back.

Note 20: At the Europe Conference, which was launched on the 12 of March it was also decided to set up a pan-European expert group to deal with organised crime. According to the chief initiator, Helmut Kohl, especially crime must be labelled as a ‘gesameuropäische Aufgabe’ (Süddeutsche Zeitung, 13.3.1998) Back.

Note 21: As pointed out by Alyson Bayles one cannot exclude either that the ‘second-wavers’ will have to shoulder a proportionally greater share of the immigration burden. In the run up to accession the first wavers will thus spend a lot of effort - and especially also money - on border control and asylum policy; basically taking over the various Schengen-rules. As a consequence, the migration burden will be shifted further to the east, i.e. to the ‘second wavers’. If the countries such as Lithuania are not given major financial assistance to shoulder this burden, it could have a substantial impact on its internal security and indeed also its economic and political transformation process (Bayles, 1997: 70). Back.

Note 22: At the informal JHA-meeting in Birmingham French Justice Minister Elisabeth Guigou made a very similar point. First of all she deplored that enlargement had so far only been seen from a diplomatic and economic point of view, but ‘never from the point of view of social Europe, the fight against organized crime, free movement, the environment’. According to her the EU ‘now needs to work overtime to catch up’ knowing that within the EU ‘the JHA Council has not yet found its feets’, ‘falling either into too technical considerations, or simply into general considerations’ (Agence Europe, 31.1.1998). Back.