Opinion of the Economic and Social Committee on the 'Proposal for a Council Directive on the elimination of controls on persons crossing internal frontiers` ()

(96/C 174/12)

On 26 October 1995 the Council decided to consult the Economic and Social Committee, under Article 100 of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for Social, Family, Educational and Cultural Affairs, which was responsible for preparing the Committee's work on the subject, adopted its Opinion on 14 March 1996. The Rapporteur was Mr Vinay.

At its 334th Plenary Session (meeting of 27 March 1996), the Economic and Social Committee adopted the following Opinion by 107 votes to two with three abstentions.

1. Foreword

1.1. The elimination of controls at internal borders and the ensuing free movement of persons are vital for the completion of the single market. They are key pillars of the Treaty of Rome as amended by the Single European Act and subsequently confirmed by the Maastricht Treaty. The intention is to establish an area that is more than a common market, in which people are able to operate in the same way as they do within a national market. Freedom of movement is thus a central part of EU activity, as a stimulant of economic growth and a key step in the integration of the Member States.

1.2. The Committee has issued a number of Opinions on the subject. Its most recent Opinion, concerning the Commission Report to the Council and European Parliament on the Single Market in 1994 (), highlighted the need to eliminate checks on persons crossing internal borders and to complete a number of back-up measures, such as those harmonizing external border checks.

1.3. The Commission has also considered this issue on several occasions, notably in its Communications of 18 December 1991 () and 8 May 1992 ().

1.3.1. The first Communication highlighted the many checks and formalities which still existed at internal borders, and the need to adopt specific measures to eliminate this diversity so that Article 8a of the EC Treaty (now Article 7a) could become fully effective.

1.3.2. The second Communication expressed concern at the delay in the elimination of physical frontiers for persons, compared with the progress achieved in free movement of goods, services and capital.

This delay led the European Parliament, on 18 November 1993, to take the Commission to the Court of Justice for its failure to present the requisite proposals for establishing free movement of persons. The European Parliament has issued several resolutions asserting the above principles, asking for congruent action and calling for an end to the delays ().

1.4. The present Draft Directive is designed to rectify matters.

1.5. It should be pointed out that the elimination of checks on people crossing internal borders is also provided for in the Schengen Agreement and has been irreversibly operative in seven Member States () since March 1995. The Schengen countries consider that the results have been broadly satisfactory. One of them has already invoked the safeguard clauses in order to re-introduce checks; such measures are also provided for in the Draft Directive.

2. Purpose of the Draft Directive

2.1. The definition of a single market as an 'area without internal frontiers` implies that, as in any national market, goods, services, capital and people can move freely and can cross Member States' borders without checks.

2.2. The free movement of persons is not yet a reality because it depends partly on the formulation and implementation of essential flanking measures. These include the Dublin Convention determining the State responsible for examining applications for asylum; the proposed Convention on controls on persons crossing external frontiers ('External borders Convention`); the Regulation determining the third countries whose nationals must be in possession of a visa when crossing the external borders of the Member States; the Council Regulation establishing a uniform format for visas; and the proposal for a European Information System.

2.2.1. Some of these measures are already in force, while others have been adopted but not yet implemented and others are still in the process of adoption. They are all designed to establish clear, definite and secure conditions for the free movement of persons which, as is clear from Article 7a of the Treaty, is an essential feature of a common market ().

2.2.2. It should also be noted that the Presidency Conclusions of the Madrid European Council in December 1995 () called for the completion of ratification of the Dublin Convention and called on the Council to take early steps to resolve the remaining obstacles to the adoption of the 'External borders` Convention.

2.3. The Draft Directive which forms the subject of the present Opinion provides for the elimination of controls on nationals of any country at the EU's internal frontiers, regardless of whether they use approved crossing points.

2.4. This raises some important considerations:

- the geographical scope of the Directive, which corresponds to the areas concerned by the free movement provided for in Article 8a of the EC Treaty;

- the definition of 'internal frontiers`;

- consistency and compatibility between the ban on border controls and the exercise of the law-enforcement powers of the authorities of the Member States within their frontiers. It should be specified that the elimination of internal border controls does not make these 'no-go` areas where no checks can be applied. Only border formalities are banned, and the elimination of border controls at internal frontiers does not remove the obligation to be in possession of any documents required under national legislation;

- the exceptional circumstances in which a Member State can temporarily reinstate border controls;

- the banning of internal border controls applied 'by proxy` by transport companies.

2.5. The banning of controls naturally also implies the abolition of border formalities such as landing cards; these formalities are not required in domestic travel and are therefore incompatible with the single market.

2.6. The entry into force of the Directive must go hand in hand with the implementation of the essential accompanying measures. The scheduled date of 31 December 1996 was chosen because, at the time the proposal was issued, these measures were expected to enter into force by the end of 1996. However, the Commission explicitly undertakes to alter this date if it proves impossible to implement the accompanying measures by then. It is on these measures that the possibility of averting any adverse effect of the elimination of internal border controls depends.

3. General comments

3.1. The Committee points out that the reference to 'persons` marks a significant development. The earliest provisions on this matter related to the free movement of persons playing an economic role, and were clearly directed at employees and people providing services; the term 'persons` was originally used only in an economic sense, but has gradually taken on a much wider meaning that ties in with the concept of citizenship.

3.1.1. The concept has been extended as a result of intense regulatory and case-law activity. The Commission itself has stated that the term 'free movement of persons` refers to all persons, whether or not they are economically active and irrespective of nationality ().

3.2. The term 'persons` thus includes third-country nationals who are lawfully present in a Member State. To claim otherwise would be to impede universal free movement by subjecting travellers to nationality checks at internal borders in order to ascertain their status in a Member State.

3.2.1. However, this does not mean that the Directive entitles third-country nationals who are lawfully resident in a Member State to take up abode in a second Member State. Here the Committee would reiterate the Commission's position on the interpretation of Article 8a (now Article 7a) of the EC Treaty: the free movement of persons in the single market must not be confused with the rights which flow directly from Articles 48 to 66 (i.e. the taking-up of economic activities as self-employed or employed persons and hence the right of residence), and which, subject to the second paragraph of Article 59, apply only to nationals of Member States ().

3.3. The Committee therefore considers that the Draft Directive is necessary for, and consistent with, the single market. It follows that any interpretation of Article 7a which limited the Directive to Community nationals would render this provision ineffective.

3.4. The Committee notes that the worrying delay in the approval and implementation of the accompanying measures is holding back the free movement of persons within the EU. The Committee calls for a firmer political commitment by the Council and the Member States.

3.5. The Committee notes that the introduction of the relevant accompanying measures is mentioned in the recitals but not in the body of the Draft Directive. This is because measures to be adopted under the EC Treaty cannot be made legally subordinate to measures which come under the EU Treaty.

3.6. The Committee points out that the accompanying measures should provide a basis for stepping up cooperation between Member States' police forces and other relevant authorities, inter alia by harmonizing laws and administrative practices (including those concerning extraditions) to combat the various forms of illegal activity. Information exchanges and cooperation in this sector should be increased to the level found between police forces within a Member State, to ensure that the elimination of border controls does not weaken security.

3.7. Finally, it must be remembered that the issues covered by the Draft Directive fall within the scope of migration policy, on which the Committee has already given its views (). The differences between national migration policies have impeded the free movement of persons between Member States. The Committee therefore takes this opportunity to stress the need for a Community policy to control and regulate migration and avoid clandestine immigration.

4. Specific comments

4.1. The provisions of the Draft Directive are based on those of the Schengen Agreement, and are consistent with it. Nor should they create any problems with respect to agreements facilitating the crossing of borders which have been concluded between Member States or between Member States and EEA countries.

4.2. The Draft Directive is an improvement on the Schengen Agreement in a few respects, notably:

- more precise terminology and definitions;

- more appropriate regulation of Member States' freedom to re-introduce internal border checks in the event of a serious threat to public policy or public security.

4.2.1. However, EU-level clarification is needed of the phrase 'serious threat to public policy or public security`, in order to avoid excessive divergences in Member States' interpretations.

4.3. Moreover, the elimination of checks does not prevent Member States from adopting measures (including expulsion) on public security grounds, as provided for in Directive 64/221 and in the Draft Directive on the right of third-country nationals to travel in the Community. Here too, the Committee reiterates the need for improved harmonization of the relevant Community legislation.

4.4. It should also be pointed out that the Draft Directive does not deal with public health matters, as these should be covered by the provisions governing the crossing of external borders.

4.5. Although the Draft Directive imposes no obligation in this respect, the elimination of internal border controls could lead to an increase in police checks in Member States, in conformity with individual national legislation, as otherwise they will have no means of checking that third-country nationals who have entered their territory from within the EU are in possession of a valid residence permit and valid travel documents in accordance with Draft Directive 346. This could present significant problems in Member States where there is no existing requirement to carry identity papers and whose authorities are not empowered to make identity checks of this type.

4.6. The Committee recommends that the relevant authorities consider how this problem may best be solved without imposing fresh obligations on citizens of Member States and possibly the scope for greater harmonization of national provisions for checks on identity documents where such obtain.

4.7. The Committee considers that the Council should also take steps to harmonize the format of residence permits in the Member States.

4.8. The Committee thinks that the Draft Directive should contain provisions for monitoring its application after it has been transposed into national legislation. The accompanying measures should also be properly monitored.

4.9. Lastly, the Committee hopes that once the Directive is adopted, the Commission and Member States will launch a campaign to inform citizens of their rights and duties as regards free movement.

5. Legal basis

5.1. The Commission views the Draft Directive as essential for achieving the objectives of Article 7a of the EC Treaty. The Committee endorses this argument, which was first set out in the Communication of 8 May 1992. The choice of Article 100 as legal basis for the proposal flows directly from this argument.

5.2. Free movement of persons - and the ensuing elimination of internal border checks - is thus bound up with the internal market and therefore comes exclusively under the EC Treaty.

5.3. As already stated, the elimination of controls on persons must go hand in hand with implementation of the relevant flanking measures (Dublin Convention, Regulation on visas, Convention on external borders and so on), but the respective legal bases must remain separate.

6. Conclusions

6.1. In the light of the above comments, the Committee endorses the Draft Directive.

6.2. The Committee emphasizes the symbolic value, for the European and international public, of the elimination of internal border checks. Implementation of the present Directive is fundamental to the achievement of a genuine single market and any further delay - especially in the year which sees the start of the Intergovernmental Conference - would have a very negative psychological effect.

6.3. Lastly, the Committee stresses the fundamental importance of the accompanying measures, and views these as vital for the implementation of the Directive. It therefore recommends that the Directive enter into force three months after the Council has verified that the prerequisites for its satisfactory implementation are in place. However, specific derogations regarding implementation time can be foreseen for particularly complex situations.

Done at Brussels, 27 March 1996.

The President

of the Economic and Social Committee

Carlos FERRER

() OJ No C 289, 31. 10. 1995, p. 16.

() CES 1310/95.

() COM(91) 549 final.

() SEC(92) 877 final.

() Resolution A3-139/91 on documents B3-291, 300 and 310/90 on Union citizenship; Resolution A3-0284/92 on free movement of persons.

() Belgium, France, Germany, Luxembourg, the Netherlands, Portugal and Spain.

() The Dublin Convention has been approved and only awaits ratification by the Netherlands and Austria, and signature by Finland and Sweden. The 'External borders` Convention and the European Information System are before the Council. The 'visa` Regulation and the Regulation establishing a uniform format for visas have been approved. The former will enter into force on 3 April 1996, while the latter will become operative in September.

() SN 400/95.

() SEC(92) 877 final.

() OJ No C 159, 17. 6. 1991, p. 12; OJ No C 339, 31. 12. 1991; OJ No C 148, 30. 5. 1994; OJ No C 40, 17. 2. 1992.