Opinion of the Economic and Social Committee on the ' Proposal for a Council Directive on the elimination of controls on persons crossing internal frontiers'
Date: 1996-03-27
Institutions: European Economic and Social Committee
Subjects: customs inspection, free movement of persons, internal border of the EU, simplification of formalities, single market













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51996AC0417

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


Official Journal C 174 , 17/06/1996 P. 0036 





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. Foreword1.1. 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 Directive2.1. 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 comments3.1. 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 comments4.1. 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 basis5.1. 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. Conclusions6.1. 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 Presidentof the Economic and Social CommitteeCarlos 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.