The Area of Freedom, Security and Justice in the Enlarged Europe (One Europe or Several?)

The Area of Freedom,Security and Justice in the

Enlarged Europe

Edited byKaren Henderson

One Europe or Several?

Series Editor: Helen Wallace

The One Europe or Several? series examines contemporary processes of political,security, economic, social and cultural change across the European continent,as well as issues of convergence/divergence and prospects for integration andfragmentation. Many of the books in the series are cross-country comparisons;others evaluate the European institutions, in particular the European Unionand NATO, in the context of eastern enlargement.

Titles include:

Sarah BirchELECTORAL SYSTEMS AND POLITICAL TRANSFORMATION IN POST-COMMUNIST EUROPE

Sarah Birch, Frances Millard, Marina Popescu and Kieran WilliamsEMBODYING DEMOCRACYElectoral System Design in Post-Communist Europe

Andrew Cottey, Timothy Edmunds and Anthony Forster (editors)DEMOCRATIC CONTROL OF THE MILITARY IN POSTCOMMUNISTEUROPEGuarding the Guards

Anthony Forster, Timothy Edmunds and Andrew Cottey (editors)THE CHALLENGE OF MILITARY REFORM IN POSTCOMMUNIST EUROPEBuilding Professional Armed Forces

Anthony Forster, Timothy Edmunds and Andrew Cottey (editors)SOLDIERS AND SOCIETIES IN POSTCOMMUNIST EUROPE Legitimacy and Change

Karen Henderson (editor)THE AREA OF FREEDOM, SECURITY AND JUSTICE IN THE ENLARGED EUROPE

James Hughes, Gwendolyn Sasse and Claire GordonEUROPEANIZATION AND REGIONALIZATION IN THE EU’S ENLARGEMENTTO CENTRAL AND EASTERN EUROPEThe Myth of Conditionality

Andrew JordanTHE EUROPEANIZATION OF BRITISH ENVIRONMENTAL POLICYA Departmental Perspective

Christopher LordA DEMOCRACTIC AUDIT OF THE EUROPEAN UNION

Valsamis Mitsilegas, Jörg Monar and Wyn ReesTHE EUROPEAN UNION AND INTERNAL SECURITYGuardian of the People?

Helen Wallace (editor)INTERLOCKING DIMENSIONS OF EUROPEAN INTEGRATION

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The Area of Freedom,Security and Justice in theEnlarged Europe

Edited by

Karen HendersonUniversity of Leicester

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The area of freedom, security, and justice in the enlarged Europe / editedby Karen Henderson.

p. cm.Includes bibliographical references and index.ISBN 1–4039–3522–X (cloth)1. Internal security – European Union countries. 2. Illegal aliens –

European Union countries. 3. Illegal aliens – Europe, Eastern. 4. Organizedcrime – European Union countries. 5. Organized crime – Europe, Eastern.6. Crime prevention – European Union countries. 7. European Unioncountries – Emigration and immigration. 8. European Union.I. Henderson, Karen, 1954–

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Contents

List of Tables viii

Notes on the Contributors ix

List of Abbreviations xi

Introduction xii

1 Perceptions of Internal Security Issues in the New Member States 1Karen HendersonChanging agendas 1The securitization of crime and immigration threats, 1990–95 4

Preparing for EU accession, 1996–2002 7Joining the new Europe, 2003– 16

2 Organized Crime in the New EU States of East Central Europe 25Miroslav NozinaIntroduction 25The phenomenon of organized crime 26Responses to organized crime 35Conclusions 43

3 Extending the Area of Freedom, Security and Justice: the Crucial Case of Poland 48Iwona Piorko and Monika Sie Dhian HoIntroduction 48The special character of JHA in the context of EU enlargement 49

The special case of Polish accession in the field of JHA 51Opportunities for Poland 52Challenges for Poland 56Conclusion 59

v

4 The Implications of Schengen Visa Policy for the Visegrad States: the Case of Slovakia 65Alexander DulebaIntroduction 65The impact of EU accession on Slovakia’s border regime with Ukraine 66

Impacts of the visa regime 72Summary of main findings 84

5 Justice and Home Affairs and the EU’s New Neighbours: Governance Beyond Membership? 89Sandra LavenexIntroduction 89Beyond the eastern border: external effects of EU enlargement 90

The foreign policy dimension of JHA 93JHA in relations with the new eastern neighbours 96The ‘Wider Europe’ initiative: towards a new neighbourhood policy? 102

Conclusion: external governance in JHA 104

6 A New ‘Area of Freedom, Security and Justice’ for the Enlarged EU? The Results of the European Convention 110Jörg MonarIntroduction 110The new legal framework 112The Charter of Fundamental Rights as part of the legal framework 114

The revised policy-making objectives 116Division of powers and subsidiarity 121Solidarity as a new integration principle 123The reforms of the decision-making system 124Implementation 127Democratic and judicial control 128Overall assessment 130Prospects after the failure of the first IGC round in December 2003 132

vi Contents

7 EU Institutional Reform and New Member States in the Area of Freedom, Security and Justice 135Vladimír BileíkIntroduction 135The role of the CEECs and the context of the Convention 136Members-to-be and justice and home affairs 138The CEECs and the fate of the draft constitution 142

8 Conclusion: The Politics of Freedom, Security and Justice in the Enlarging EU 149Heather GrabbeIntroduction 149The changing nature of borders and the privatization of fear 150

Border dilemmas for Central and Eastern Europe 151The impact of 11 September 2001 and its aftermath on Europe 154

Will the EU continue to liberalize the movement of people? 157

The future politics of internal security 159

Bibliography 162

Index 170

Contents vii

List of Tables

1.1 Time taken to negotiate Chapter 24 (justice and home affairs) in the EU accession negotiations 17

4.1 Number of people legally crossing the Slovak–Ukrainian border, 1998–2002 73

4.2 Transport movement through Slovak–Ukrainian border crossings, 1998–2002 75

4.3 Slovakia’s trade with Ukraine, 1993–2002 (in $ million, current prices) 75

4.4 Foreign visitors who used tourist accommodation in Slovakia by country of origin, 1995–2002 77

4.5 Customs offences committed by legal business entities and individuals 78

4.6 Number of illegal migrants detained by the Slovak border police at the Slovak–Ukrainian state border, 1993–2002 79

4.7 Pressure of illegal migrants on the borders of the SlovakRepublic with neighbouring countries, 1993–2002 80

4.8 Pressure of illegal migrants on the Slovak Republic’s state borders by direction, 1993–2002 81

viii

Notes on the Contributors

Vladimír Bilcík has worked as an analyst at the Research Centre ofthe Slovak Foreign Policy Association (RC SFPA) since 1999. He holdsan M.Phil. in European Politics from the University of Oxford and haspublished both in Slovakia and other countries on issues of EUenlargement. From February 2002 to July 2003 he advised Ján Figel’,member of the Convention on the Future of Europe.

Alexander Duleba is director of the Research Centre of the SlovakForeign Policy Association and the head of the Centre’s EasternEurope research programme. He is author, editor or co-editor of 22books and 75 studies in the field of international relations and EastEuropean studies. His main works include Eastern Policy of theEnlarged European Union: A Visegrad Perspective (co-editor, 2003);Ukraine and Slovakia (2002); Russia at the End of Yeltsin’s Era (1999);and Transcarpathia (1995).

Heather Grabbe is Deputy Director of the Centre for EuropeanReform, an independent think-tank based in London, and anAssociate Fellow of the European Institute, London School ofEconomics. She has worked extensively on EU enlargement and itsimplications, as well as on other European issues and questions of con-ditionality. Her publications include The Constellations of Europe: HowEnlargement will Transform the EU (2004); Profiting from EU Enlargement(2001) and Enlarging the EU Eastwards (with Kirsty Hughes, 1998). Shewas previously Research Fellow at the Royal Institute of InternationalAffairs and has been a visiting fellow at the European UniversityInstitute (Florence), the European Union Institute for Security Studies(Paris) and the Centre for International Relations (Warsaw).

Karen Henderson is Senior Lecturer in Politics at the University ofLeicester. Her research has focused on EU eastern enlargement andthe domestic politics of Slovakia and the Czech Republic. Her publi-cations include Slovakia: The Escape from Invisibility (2002), Back toEurope: Central and Eastern Europe and the European Union (editor,1999) and Post-Communist Politics (with Neil Robinson, 1997).

ix

Sandra Lavenex is Assistant Professor of European Studies andInternational Relations at the University of Bern in Switzerland. Sheobtained her Ph.D. from the European University Institute inFlorence in 1999 for a study on the Europeanization of refugeepolicies. Her main areas or research are EU asylum and immigrationpolicies and EU external relations with the ‘near abroad’.

Jörg Monar is Professor in Contemporary European Studies and Co-Director of the Sussex European Institute, University of Sussex.He was previously Professor of Politics at the University of Leicesterand before that Director of the Institut für Europäische Politik. He isalso a professor and member of the Academic Council at the Collegeof Europe, has worked since 1999 as a specialist adviser on EU justiceand home affairs issues for the House of Lords EU Committee and isco-editor of the European Foreign Affairs Review.

Miroslav Nozina is a research fellow at the Institute of InternationalRelations, Prague. His spheres of interest encompass security prob-lems connected to international criminal activities and drug-relatedissues. He is author of The World of Drugs in the Czech Lands (1997)and International Organised Crime in the Czech Republic (2003).

Iwona Piórko is a lecturer in Justice and Home Affairs at theCollegium Civitas, Warsaw, and a Ph.D. candidate at the SussexEuropean Institute, University of Sussex (UK). She graduated fromthe College of Europe Natolin, where she later worked as AcademicAssistant in Politics and Administration. She is a member of theCentre for European Policy Studies academic network on JHA andEnlargement (Brussels). She also cooperates with the European PolicyCentre (Brussels) and the Centre for International Relations(Warsaw).

Monika Sie Dhian Ho is senior researcher at the NetherlandsScientific Council for Government Policy (WRR). She has been lec-turer in Political Science and International Relations at the ErasmusUniversity in Rotterdam and at Leiden University, and currentlyteaches a course on European Integration at the MPA of theNetherlands School of Public Administration in The Hague.

x Notes on the Contributors

List of Abbreviations

AFSJ area of freedom, security and justiceCEEC Central and East European countriesCIS Commonwealth of Independent StatesCOREPER Committee of Permanent Representatives (of member

state governments to the European Council)EC European CommunityECE East Central EuropeEP European ParliamentEU European UnionEU-15 Pre-2004 EU member statesEU-25 EU member states after 2004 enlargementFTD facilitated travel documentGUUAM Georgia, Ukraine, Uzbekistan, Azerbaijan, MoldovaJHA justice and home affairsIGC Intergovernmental ConferenceNATO North Atlantic Treaty OrganizationNDI Northern Dimension InitiativeNIS newly independent statesPCA Partnership and Cooperation AgreementQMV qualified majority votingSIS Schengen Information SystemTEC Treaty establishing the European CommunityWG working group

xi

Introduction

This book looks at two of the profound changes that have altered theshape and form of the European Union over the last decade. On1 May 2004, it enlarged for the fifth time since its foundation in1957. This was not only the largest of the enlargement waves, but ithas also been the most important symbolically and in practical termssince, a mere 15 years previously, eight of the ten new member stateshad been governed by communist regimes. Their accession to the EUmarked the culmination of their ‘return to Europe’, and the reunit-ing of a continent that had been divided for more than 40 years upto 1989. It also represented a quite remarkable triumph of painstak-ing bureaucratic endeavour. With the help of waves of Commissionofficials, states whose legal and administrative capacity had beengravely weakened by four decades of communism accomplished thenot inconsiderable task of harmonizing their legislation with theEU’s ever-growing acquis communautaire, at the same time as con-structing a functioning market economy and consolidating their newdemocracies.

However, the ‘Europe’ to which the accession states were returningwas a European Union whose goals and functions had also expandedover recent years. The second profound change relates to an expan-sion in the policy areas in which the EU is involved. Public attentionhas tended to focus on the introduction of the euro and attempts atforging a common foreign and security policy, yet the constructionof what was at first referred to as the EU’s ‘third pillar’ – the exten-sion of EU competencies in the field of justice and home affairs – wasarguably more likely to affect the everyday life of the ordinary citi-zen. This included issues such as border controls, asylum and immi-gration policy, as well as judicial cooperation and combating crime.As the 1990s progressed, these ‘internal security’ matters becameincreasingly prominent among international and domestic concerns.

Despite the importance of both EU eastward enlargement and theexpansion of the EU’s justice and home affairs agenda, there has sofar been relatively little analysis of the relationship between thesetwo new areas of EU activity. The aim of this book is to examine both

xii

how the expansion of the EU has presented extra challenges andachievements in the field of internal security, and how the ‘third pil-lar’ has affected preparations for accession in the new member states.

The two spheres have from the outset been very closely linked. Itwas in many ways the end of the cold war, which left Eastern Europefree to seek closer ties to the EU, that also shifted the focus of WestEuropean states from the traditional emphasis on external, militarysecurity to a greater preoccupation with internal security. Thisoccurred not merely because of the reduction of the ‘Soviet threat’under Gorbachev, but also because the sudden opening of borders inthe countries previously behind the ‘iron curtain’ left them vulnera-ble to penetration by organized crime and illegal immigration. Thestates of Central and Eastern Europe were thus initially viewed asthreats which endangered the internal security of the EuropeanUnion. At the same time, it was becoming increasingly clear that jus-tice and home affairs issues could no longer be handled effectivelyby the governments of individual states. In a world of open bor-ders, transnational cooperation is vitally important. The events of11 September 2001 brought home how vulnerable the citizens of eventhe most powerful state can be, and gave a further impetus to inter-national cooperation in creating internal security.

The EU response to the changed situation in Europe was in essenceconstructive and positive. Given the desire of the post-communiststates of Central and Eastern Europe to become members of the EU,it attempted to incorporate them into a unified ‘area of freedom,security and justice’, rather than bolstering its defences against them.This confronted the EU with the prospect that most of its vulnerableexternal land border would be pushed east, to be guarded by erst-while Warsaw Pact states such as Poland, while the under-equippedpolice forces and courts of its prospective new members in Centraland Eastern Europe required urgent assistance in preparing them-selves for ever-deepening cooperation in judicial affairs.

The new security agenda posed demanding and largely unexpectedchallenges for the states striving to ‘return to Europe’. In the mid-1990s,their applications to join the EU had been conceived of in largelyeconomic terms. The focus of attention was on the ‘first pillar’: the European Community as it had existed at the beginning of the1990s. Yet the Treaty of Maastricht, agreed in December 1991, hadadded a ‘second pillar’ comprising the common foreign and security

Introduction xiii

policy, as well as the ‘third pillar’ of justice and home affairs. ArticleK of Title VI of the Treaty on European Union listed nine items whichmember states regarded as matters of ‘common interest’: asylum pol-icy, rules on crossing external borders, immigration policy, combat-ing drug addiction, combating international fraud, civil judicialcooperation, criminal judicial cooperation, customs cooperation andpolice cooperation. These were all areas that had previously been theexclusive preserve of national governments, and they remained the subject of intergovernmental decision making. Virtually no atten-tion was paid to this change in the ‘other’ Europe. While the newdemocratic governments in post-communist Europe were all floun-dering in the face of the practical problems posed by the sudden andunexpected encroachment of crime into their citizens’ everyday livesat the time when they submitted their applications to join the EU inthe mid-1990s, the two policy fields did not appear to be linked.

This situation changed markedly in 1997. The EuropeanCommission issued its avis – opinions – on the membership applica-tions from ten Central and East European states in July 1997, and rec-ommended beginning accession negotiations with some of them.However, in June 1997 the EU’s Intergovernmental Conference hadconcluded with the draft Treaty of Amsterdam, which for the firsttime set, as one of the Union’s objectives, the development of an‘area of freedom, security and justice’ (AFSJ), in which ‘the free move-ment of persons is assured in conjunction with appropriate measureswith respect to external border controls, asylum, immigration andthe prevention and combating of crime’. The EU was henceencroaching further into fields that had previously been the exclu-sive preserve of member states’ governments. At the same time, theTreaty incorporated part of the ‘third pillar’ – immigration andasylum – into the first, Community, pillar. Moreover, a protocol inte-grated the Schengen acquis, including the abolition of checks at com-mon borders, into the framework of the European Union, with theconcomitant demand that all candidate states must accept it in full.This precluded the possibility of any new member states opting outof the Schengen area as Britain and Ireland had done.

The applicant states were thus confronted with a number of com-plex tasks that they had not been expecting, and their justice andinterior ministries were drawn into the EU enlargement process.These were already undergoing a fundamental transformation as part

xiv Introduction

of the post-communist democratization process, and now foundthemselves forced to adapt to EU standards, which – due to the dom-inant position of member state governments rather than theEuropean Commission in justice and home affairs issues – were oftensomewhat elusive. Moreover, justice and home affairs was an areawhere the member states could not afford to be lax about thedemands placed on the governments of the candidate states sincecrime, immigration and asylum are highly sensitive for the mediaand electorates.

In the light of this, the progress made by the states of Central andEastern Europe in preparing for membership of the AFSJ was remark-able. As enlargement negotiations progressed, the idea that the westand east of Europe belonged to a single area in which there shouldbe both freedom of movement and internal security took firm root,and at the same time, the centrality of the AFSJ to the entireEuropean project also increased even further. When representativesof old and new member states gathered in a convention on the futureof Europe, the draft EU constitution they drew up gave the AFSJpride of place. Whereas the Treaty of Amsterdam had ranked it beloweconomic and social progress and a common foreign and securitypolicy in its list of objectives, only peace and the well-being of itspeoples took precedence in the proposed constitution.

* * *

This book follows through some of the many complex issues that hadto be tackled in order to integrate the new member states into the AFSJas well as presenting some of the dilemmas that remain. The interplayof domestic and international concerns throughout Europe has pro-duced a sometimes fascinating clash of agendas, and one that hasaffected both the implementation of the EU’s justice and home affairsagenda and the EU enlargement process itself. The initial focus is onhow the new member states have adapted to the EU’s internal securityagenda, while later chapters examine both recent developments in theAFSJ and the situation of those East European states that have littlechance of joining in the foreseeable future. The topic is approachedfrom a number of differing, but complementary, angles, including casestudies from some of the new member states in East Central Europe.Individual chapters are written by specialists who have conductedresearch on a range of justice and home affairs issues.

Introduction xv

In Chapter 1, Karen Henderson looks at internal security issuesfrom the perspective of candidate states. Three distinct periods inpost-communist development are highlighted, with particular refer-ence to the Czech Republic and Slovakia. In the first half of the1990s, threat perceptions in Central and Eastern Europe changedmarkedly, and the public’s ‘moral panic’ about both the increase ofdomestic crime, and the influx of foreign migrants and organizedcrime, forced governments to reassess priorities in policing and bor-der issues. In the second half of the 1990s, the more technical chal-lenges of the EU accession process came to the fore, and therestructuring of the work of the justice and interior ministries wasprimarily a response to external demands. However, despite earlierpredictions that justice and home affairs would be one of the mostchallenging areas in the accession negotiations, by the early years ofthe new century, there had been some remarkable achievements inharmonizing policies in countries that had had once belonged to adifferent ‘bloc’.

In Chapter 2, Miroslav Nozina examines the challenges posed byorganized crime in the new member states. Looking first at the pecu-liarities of the ‘socialist’ criminal underworld that existed until 1989,it then maps the dramatic rise in crime in the early post-communistperiod, and the fundamental changes in the nature of criminal activ-ity that took place after the opening of borders. The restructuring oforganized crime began quickly as local underworlds met criminalgroupings from elsewhere in Europe and the rest of the world, andexploited the new opportunities offered by the privatization processand the prevalence of corruption. However, the reconstruction oflegal systems also gained pace by the second half of the 1990s, andthe Visegrad Four states in East Central Europe provide illustrationsof how both the security forces and the judiciary adapted to meet theenormous domestic challenges, as well as the need for more intensiveinternational cooperation and harmonization as the EU accessionprocess developed.

In Chapter 3, Iwona Piórko and Monika Sie Dhian Ho weigh up thecosts and benefits of EU accession in the field of justice and homeaffairs by taking Poland as a case study. Poland is exceptionallyimportant as it is the largest of the new member states, and will havethe second longest external land border guarded by a single memberstate. The chapter looks first at the particular problems caused by

xvi Introduction

Poland’s geographic position and the changes in migration patternsafter 1989. It then analyses the opportunities presented to Poland byEU accession, such as the strengthening of institutions, improve-ments in training and resources, improved inter-institutional coop-eration and strategic policy making, and the advantages of fullintegration into the AFSJ. It then balances these against the costsincurred in terms of financial, socio-economic and political chal-lenges, including the disruption of links with eastern neighbours. Itconcludes by discussing the various ways in which the costs of EUaccession can be alleviated.

In Chapter 4, Alexander Duleba studies the implications ofSchengen visa policy by examining the case of Slovakia, which wasthe first of the Visegrad states to respond to EU demands by intro-ducing a visa regime with an immediate neighbour. It illustrates the historical complexities typical of the region, since theSlovak–Ukrainian border divided territories that had, until 1945,long been together in one (though not always the same) state. Afterlooking at the political background and diplomatic problems causedby the controversial change in visa policy, the chapter analyses orig-inal data about what actually happened after the border regime wasaltered. Statistics on the legal movement of people, volumes of tradeand tourism, illegal migration, labour migration and criminal activityshow that results did not always match up to fears and expectations.While economic disruption was less than predicted, the bilateral visaregime did little to increase the internal security of the AFSJ. Theimproved border protection measures implemented with EU assis-tance in preparation for the Slovak–Ukrainian border becoming aSchengen external border brought far more notable results.

In Chapter 5, Sandra Lavenex examines justice and home affairsand the EU’s new neighbours, with a focus on Russia, Ukraine,Moldova and Belarus, which pose ‘soft’ security threats to the newEU both as countries of origin and transit countries for illegalmigrants and organized crime. It examines ‘governance beyondmembership’: how the EU seeks to bind non-member states to thepolicies of the Union when it lacks the leverage of the promise ofmembership. After looking at EU policies from the perspective of thegovernments of the new neighbours, it analyses the foreign policydimension of justice and home affairs, and the development of newforms of cooperation with the states involved that aim to protect the

Introduction xvii

AFSJ. It considers whether the ‘Wider Europe’ initiative represents anew neighbourhood policy that might mitigate the negative conse-quences of EU enlargement for the states excluded, or if, as a tool ofexternal governance, it is a substitute for the leverage that could beprovided by the promise of membership.

In Chapter 6, Jörg Monar questions whether the Convention on theFuture of Europe, and the draft constitution that it agreed, will pro-duce a new AFSJ for the enlarged EU. After some initial observationson the importance, and the sensitivity, of the area for all memberstates, it looks at the new legal framework established in the draft con-stitution, together with its failure clearly to define the objectives ofthe AFSJ. It examines the importance of the incorporation of theCharter of Fundamental Rights, as well as the problems that may arisefrom the detailed yet at times contradictory policy-making objectivesestablished. This is followed by more detailed analysis of provisions inindividual policy-making areas (border checks, asylum and immigra-tion and judicial cooperation in civil and criminal matters); the divi-sion of powers suggested; reforms of the decision-making system; anddemocratic and judicial control. Finally, it assesses the relevance ofthe draft constitution to the enlarged EU, and whether the compro-mises involved in its formation undermine its importance for deter-mining the future of the area of freedom, security and justice.

In Chapter 7, Vladimír Bileík examines the contribution made bythe new member states to the discussion of justice and home affairsissues in the Convention on the Future of Europe. This forum providedthe first opportunity for representatives of the governments and parliaments of the accession states, as equal partners of those from cur-rent member states and the EU institutions, to play a positive role indecision making, rather than being recipients of EU policy. The workand the conclusions of the Convention’s Working Group ‘Freedom,Security and Justice’ are analysed with a particular focus on contribu-tions by representatives of candidate countries. Questions are raisedabout the extent to which they were equipped for the task of policy for-mulation, and able to represent coherent and authoritative policystances on justice and home affairs issues within their own states.Looking forward, the chapter discusses likely attitudes to future chal-lenges in developing the AFSJ on the part of the new member states.

In Chapter 8, Heather Grabbe draws together the book’s main argu-ments and summarizes the internal security challenges facing the

xviii Introduction

enlarged Europe, and the tensions it will experience in its attempts tocomplete the AFSJ. It highlights in particular the salience of border-related issues and the dilemmas faced by governments in the newmember states, for whom security concerns must be matched againsttheir citizens’ preoccupation with the right to freedom of travel andforeign policy demands in their relations with eastern neighbours. Italso examines the Union’s responses to 11 September 2001, how ithas affected both threat perceptions and common policy making, andthe debates on internal security that continue in both the old mem-ber states and the new members of Central and Eastern Europe.

* * *

The book is the result of cooperation developed in the course of theresearch project ‘Towards a New European Governance of “InternalSecurity”: Challenges, Objectives and Structures’ conducted at theUniversity of Leicester under the leadership of Professor Jörg Monarfrom 1999 to 2002. Earlier findings from the project, which wasfunded by the Economic and Social Research Council’s ‘One Europeor Several?’ Research Programme (grant L213252011), were pub-lished in The European Union and Internal Security: Guardian of thePeople by Valsamis Mitsilegas, Jörg Monar and Wyn Rees, whichappeared in this series in 2003. The current volume expands the pro-ject’s research on illegal immigration and organized crime with ref-erence to the EU accession states, and is the work of an internationalteam of authors brought together at its final conference on ‘EUGovernance and the Challenge of Internal Security’ held in Leicesterin September 2002. Their original contributions have been reformu-lated and revised to cover the period up until EU eastward enlarge-ment in May 2004, and complemented by the addition of twofurther chapters in order to provide comprehensive up-to-date cov-erage of the crucial issues linked to the AFSJ in the new Europe.

Thanks are given to everyone who contributed ideas and informa-tion to the project, most particularly to the many officials of EU insti-tutions and interior ministries in the accession states who gave muchof their valuable time to assist the authors in the research.

Karen HendersonLeicester

Introduction xix

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1

1Perceptions of Internal SecurityIssues in the New Member StatesKaren Henderson

Changing agendas

Preparing the candidate states for joining the area of freedom, securityand justice (AFSJ) was one of the most daunting challenges, and thegreatest achievements, of EU eastern enlargement. At the beginningof the 1990s, post-communist states inherited police forces andcourts that were not trusted by their own people, let alone the gov-ernments of the European Union’s member states; borders designedto protect against subversion from the West rather than organizedcrime and illegal immigration from the East; and a postwar history ofbeing the source rather than the destination of asylum seekers.However, as the EU’s justice and home affairs agenda developed at anunexpectedly rapid pace from the early 1990s onwards, and adoptingthe Schengen acquis of a border-free Europe was made a condition ofEU membership in 1997, the candidate states were faced with thetask of achieving (often rather elusive) Western standards in one ofthe most sensitive, and often most secretive, areas of state activity.

It is surprising, therefore, that more attention has not been paid tothe complex and painstaking efforts, and very rapid developments,that took place in the field of internal security in the Central and EastEuropean countries (CEECs). While much publicity has surroundedthe building of democratic political institutions, the creation of mar-ket economies, and the military volte-face that enabled them to joinNATO, the changing agendas of their interior and justice ministrieshave been the subject of less analysis.1 At the same time, few questionshave been asked about the underlying problems of incorporating the

new EU members into the AFSJ. Whose freedom, and whose security,was the AFSJ designed to protect? The creation of a single AFSJ pre-supposes common notions of internal security, yet at times in theaccession process, it appeared that harmonization was designed pri-marily to ensure that the CEECs spent time, effort and money con-verting themselves into an effective buffer zone protecting thesecurity interests of Western Europe.

This chapter aims, therefore, to look at internal security issues fromthe perspective of the post-communist candidate countries. In gen-eral, there was more similarity in the way security organs workedat the beginning of the 1990s within the former Soviet bloc statesthan the existing EU. The two examples in particular that will beused in this chapter are the Czech Republic and Slovakia, which, hav-ing been in the same state until the end of 1992, began the transitionto democracy with identical legal and security systems. They there-fore offer a good illustration of the differing priorities and problemsthat could develop thereafter. The Czech Republic had a populationtwice the size of Slovakia’s, and was better equipped at the level of‘software’ to respond to new challenges. For example, it inherited theresearch office at the Federal Ministry of Justice and Czechoslovakia’smajor criminology journal,2 while literature on internal security washarder to find in Slovak. The Slovak economy was also slightlyweaker, and less diverse and hence more vulnerable to post-communisttransition, than the Czech one, and Slovakia had a more eastern andhence less advantageous geographic position than the CzechRepublic. Slovaks also had less experience at running a state than theCzechs, and in a crucial period in the mid-1990s fell behind politi-cally, making little progress in transforming the police force andjustice and interior ministries. They tended if anything to regress incombating clientelism and corruption and establishing a state basedon the rule of law.

Nevertheless, in both countries it is possible to identify three distinctperiods in the development of the internal security agenda since thefall of communism in 1989. In the first period, from 1990 until the mid-1990s, policy in the CEECs responded primarily to problemsin the domestic transformation process. In many cases, governmentswere forced to act by the pressure of public opinion, as citizens foundtheir everyday lives disrupted by previously non-existent threats tothe conduct of their everyday lives, while chronically underresourced

2 The AFSJ in the Enlarged Europe

state organs, such as police forces and courts, found themselvesoverwhelmed and outmanoeuvred by organized crime whose per-petrators enjoyed superiority in material resources, internationalcontacts and the capacity to adapt flexibly and informally to anyopportunity that presented itself.

In the second period, in the latter half of the 1990s and the firstyears of the new millennium, CEEC governments were led primarilyby the exigencies of EU accession, and the technical requirements ofthe European Commission. Although the specific threats posed bycrime and illegal immigration were still prone to rapid change, theinitial shock caused by the opening of previously closed, and highlyregulated, societies to the outside world subsided. Governmentsresponded primarily to an externally imposed rather than a domesticagenda, and were stretched in particular by difficulties in determiningexactly what was required of them in areas where EU competencieswere expanding rapidly, and where intergovernmentalism still pre-dominated in decision making.

The third, and contemporary, period began at about the pointwhen the Convention on the Future of Europe for the first time gavethen candidate and now new member states a voice in determiningEU policy on the shape and scope of the AFSJ, as well as all otheraspects of the EU’s constitution. They became a subject rather thanan object of EU policy making, and although they were initiallyuncertain and peripheral actors in decision making, other importantshifts in perceptions of the AFSJ were taking place. The fifteen exist-ing and ten acceding member states were genuinely viewed as belong-ing to a single space for guaranteeing the internal security of all. Morecrucially, however, a genuine process of convergence in internal secu-rity interests had also been taking place. The threats with which theCEECs were confronted, and therefore also the possible solutions totheir problems, were gradually becoming more similar to those in theold member states. Arguably, the success of the AFSJ depends in alarge part on the extent to which continuing discrepancies in domes-tic internal security agendas can be effectively incorporated into aconstitutional framework that is functional for all member states.

By tracing through developments in the different periods in whichthe CEECs’ internal security agendas were formed, this chapter aimsto provide the background for understanding the more specific issuesdiscussed in the rest of the book.

Perceptions of Internal Security 3

The securitization of crime and immigration threats, 1990–95

For European structures designed to counter threats to internal security,it is essential that they should address real threats if they are to func-tion effectively. Since the collapse of Soviet communism, attentionhas been paid to changes in Western concerns, whereby the militarythreat from the East is replaced by an internal security agenda ofcombating organized crime, illegal immigration and, increasingly,terrorism. There has been less focus, however, on the constellation ofsecurity fears experienced in the former communist bloc.

The Czech Republic and Slovakia are interesting case studies in thisrespect, because although they spent the first three years of the post-communist transition in the same state, they later diverged, and thisapplied to perceptions of security threats as well as to issues such aseconomic and democratic reform that are more commonly men-tioned. Using Buzan, Wæver and de Wilde’s distinction that a publicissue becomes securitized, rather than merely politicized, when it ispresented and widely accepted as an existential threat requiringemergency measures,3 it can be seen that different issues becamesecuritized in each of the new states.

What was common to both was that, in contrast to Poland and theBaltic states, the military threats from the former Soviet Union werenot a major concern, and while they applied for NATO membership,this was viewed as a desirable organization of which to be a member,rather than a vital necessity for securing the country’s survival. Supportfor EU membership remained higher than support for joining NATO.4

Generally, demilitarization was promoted, which later assisted inachieving harmonization with the EU, particularly where interiorministry functions (for example, border control) were concerned.

Economic threats were considered by the public to be a more crucialdanger to their general well-being. Many people felt existentiallythreatened by sharp changes in their material circumstances, andanxieties were particularly acute in Slovakia, where the unemploy-ment rate rose sharply from 1990 onwards. Questions of internalsecurity interacted with the effects of economic reforms. An alarmingrise in crime was a common problem of post-communist states in theearly 1990s. This is reflected both in official statistics (see Chapter 3)and in public opinion polls that show crime featuring near the top


of respondents’ main worries.5 In a more urban society such as theCzech Republic, and to a lesser extent Slovakia, people were affectedon a day-to-day level by frequent burglaries, and blocks of flats hadentryphone systems installed rather than permitting open access toflat doors; there were break-ins at the weekend cottages or chaletsbeloved by the residents of small high-rise communist-era city flats,which were usually in more remote areas, often sheltered in wood-land; and car theft became common, affecting in particular the moreexpensive cars to which some citizens now had access. In early 1990sPrague, ‘black sheriffs’ – private security guards – became a commonsight outside private currency exchange offices, whose owners nolonger felt they could rely on the normal police for security; accountsof Russian mafia gangs demanding protection money from shop-keepers spread widely; and Vietnamese street traders selling cigarettesand other goods became a normal sight. At the same time, the num-ber of foreigners living in the capital had increased visibly. Thesephenomena were present in Slovakia as well, though they were lessconspicuous as it had no large cosmopolitan city to compare withPrague, and overall numbers were far lower. There were alreadynearly 50,000 foreigners living in the Czech Republic by the end of1992, and 231,608 a decade later at the end of 2002,6 whereasin Slovakia there were still only 29,505 legally resident foreigners in2002, compared to 6743 in 1993.7

Czech perceptions of organized crime and immigration as an alienintrusion from the East (that is, the former Soviet Union) was even,in the first half of the 1990s, not altogether unlike Western threatperceptions in the internal security realm.8 Interestingly, however,whereas governments and politicians are often the ‘securitizingactors’ that present a threat as existential and therefore requiring spe-cial measures,9 in the Czech Republic it was rather diffuse publicopinion that initially identified growing crime as a major problemand forced the government to take the issue seriously. This rancounter to the political project of Czech reform, which believed, inthe economic sphere, that regulation was unnecessary since the mar-ket would suffice. The desire of economic reformers to permit maxi-mum openness of the market was matched by the liberalism ofpoliticians who were preoccupied by issues of personal freedom,which also militated against effective state intervention in the internalsecurity sphere.10 The backlash against the communist period was


very intense since in the relatively modern Czech lands, the impositionof the Soviet brand of socialism had impeded development moreseverely than anywhere else in the communist world.

Slovak threat perceptions were different. Here, the societal sectorwas more prone to securitization. Slovak nationhood and the newSlovak statehood established at the end of 1992 saw itself endangeredless by a military threat from the East, and more by immediate neigh-bours such as the Czechs, and most particularly the Hungarians,11

who were present as a 10 per cent minority in the Slovak Republic.Some people also feared that the West would overrun them cultur-ally and economically (both notions embraced in concept of‘McDonaldization’). This indeed was also the case in the CzechRepublic, but early governments in the independent Slovakia com-bined this with fear of Czechs and Hungarians in an attempt to secu-ritize the foreign threat to the young Slovak state, and simultaneouslyto promote both indigenous domination of the privatization processand perpetuation of their own rule as synonymous with the commongood of the state. This discourse was not ultimately successful, andled in 1998 to a change of government, with an attendant improve-ment in Slovakia’s chances of European integration. The Westernconcept of an internal security threat from the East was thus lessapplicable in Slovakia than the Czech Republic. In the mid-1990s,the Slovak government prided itself on good contacts with Russia,and sometimes viewed these as a possible substitute for integrationwith Western Europe (for which it was frequently criticized by thethen opposition parties in Slovakia).12 Consequently, there was lessof a sense that foreign organized crime was an external threat to thestate’s internal security: in the polarized Slovak political scene ofthe early and mid-1990s, many citizens perceived that threats fromthe East were interwoven with corruption in the government itself.

There were consequently marked differences in Czech and Slovakthreat perceptions in the early and mid-1990s. Neither perceived theproblems to relate to conventional military threats. However, whilethe Czechs perceived threats to internal security as being alien andcoming from the East, with government liberalism impeding effec-tive counter-measures, in Slovakia, the major battle was about thenature of their state: the government camp viewed the young inde-pendent Slovak state as under threat, while the opposition viewedthe government itself, with murky links to the East, to be the primary


danger.13 What was common to both was an initial ‘moral panic’ overthe rise in crime and the lack of security for citizens. Yet this abatedbetween 1993 and 1995,14 and worries about crime merged with thegeneral residual uncertainty of the immediate post-communist period.

Preparing for EU accession, 1996–2002

In the second half of the 1990s, the reform agenda shifted from adomestic to an international focus. The major shock of post-communist transition subsided. Crime rates ceased rising dramatically,some of the worst economic turmoil was over and gross domesticproduct began to rise, and political systems began to show signs ofdemocratic consolidation. There were still some marked differences,though. For example, Slovakia, while appearing to have reasonablemacroeconomic results, was lagging well behind the Czech Republicin structural economic reforms, and the political situation showed aninstability that eventually led in 1997 to its exclusion from the firstgroup of post-communist states to start negotiating EU accession.15

The increasing prominence of the EU’s justice and home affairsagenda was highlighted by the draft Treaty of Amsterdam agreed inJune 1997, and within six months of the end of the IntergovernmentalConference, the Luxembourg European Council agreed to start acces-sion negotiations with a ‘first group’ of Cyprus, the Czech Republic,Estonia, Hungary, Poland and Slovenia. A further ‘second group’ offive post-communist states – Bulgaria, Latvia, Lithuania, Romaniaand Slovakia – was included in the accession process, and the screen-ing of their legislation to check for compatibility with the EU acquisbegan. However, detailed negotiations were delayed because Slovakiahad not yet fulfilled the political criteria, and it was questionablewhether the others could fulfil the EU’s economic criteria even in themedium term.16

From here on, the EU became a force driving change in the justiceand home affairs field. Although interior and justice ministries alreadyhad international contacts through organizations such as the UnitedNations, and most significantly the Council of Europe, the EU had acoercive power that others lacked: it could prevent the candidatestates joining, with all the economic consequences this entailedfor them, until their standards of internal security were approved.Of the 31 chapters of the accession negotiations, Chapter 24 was


about justice and home affairs, and until it was closed, accessioncould not take place.

Chapter 24 confronted the candidate states with challenges forboth external and internal reasons. First of all, the AFSJ had beenconceived to protect the existing member states, and it addressedtheir problems. They were target states for illegal immigrants andasylum-seekers, and were therefore extremely concerned by the issue,while it was less pressing for candidate states, which tended merelyto be transit countries. The steps they were expected to take thereforeresponded to an externally imposed agenda, which meant that theywere, in the main, merely following instructions rather than devel-oping their own solutions. Moreover, the acquis in the area of justiceand home affairs, including the Schengen acquis, was at first notclearly defined,17 and systems of policing and judicial practice werehighly divergent in different member states. The willingness ofauthorities in the member states to share information with represen-tatives from the candidate states was also sometimes impaired byconcerns about the extent of corruption in the east of the continent,and possible links with organized crime among law enforcementagency personnel themselves, which did little to inspire the goodwill of the latter.18

Second, the accession states had their own internal problems. Therewere generally negative public attitudes not merely towards thepolice, as repressive organs of the communist period, but also towardsthe interior ministry as a whole.19 Although interior ministries over-saw an enormous range of activities, including elections and localgovernment, it was the coercive functions that first sprung to theminds of those who had lived under communism. These attitudeswere partly mitigated by the moral panics of the early 1990s, whenthe rise in crime made citizens more accustomed to the idea that youmight have to call the police, instead of hoping they would notdecide to visit you. Also, perhaps ironically, the police oversaw manyrather mundane administrative tasks well into the post-communistperiod, such as conducting driving tests and keeping registers ofvehicles, which further encouraged the public to view them as peoplewho controlled their everyday lives. While some of the negativecommunist-era images declined over the course of the 1990s, the perception that there was widespread corruption in both the policeand the judiciary remained.20 On a more practical level, interior and


justice ministries suffered from problems of functional incompetenceand technological obsolescence. At the start of the 1990s Czechscomplained that the police could not chase criminals in a BMWwhile driving a Skoda, and at the end of the decade, while the policewere somewhat better equipped, there were still complaints thatjudges did not even have computers in their offices.

Chapter 24 of the accession negotiations was also challenging as itembraced a wide range of rather sensitive issues: immigration andborder controls, including visas and asylum-seekers; combating orga-nized crime, terrorism, fraud, corruption and drugs; and police,customs and judicial cooperation. It was predicted that it would beone of the most difficult chapters in the accession negotiations.When the Czech Republic finally presented its position paper on thejustice and home affairs chapter in November 1999, only its positionpaper on agriculture was still outstanding. As with all chapters, theSlovak situation was slightly easier: by the time they submitted theirposition paper in December 2000, they had already seen the com-mon positions adopted by the member states to the other Visegradstates’ position papers.

Border controls were the most prominent of all the issues to bedealt with. The fact that new member states would form much of theexternal Schengen land border of the new EU caused a number ofconcerns in the accession states themselves. Poland feared the dis-ruption of fragile border economies if hard borders cut off countriesto the East with whom there was much petty trade (see Chapter 4),and Hungary was uncomfortable about separation from Hungarianminorities in all its neighbouring countries if its unloved 1920 Trianonborders were reinforced by becoming Schengen borders, rather thanbeing quietly rubbed away as the Hungarian nation was peaceablyreunited inside a border-free EU.

Former Czechoslovakia had slightly different concerns. When itcame to adapting border regimes to EU requirements, considerabledifficulties were caused in the early stages of negotiations by simplynot knowing where the external Schengen border would be. Slovakia –initially relegated to the ‘second group’ – was a particular problem inthis regard: being a long thin country, it was perfectly shaped tocause maximum inconvenience to its northern and southern neigh-bours if it did not join the EU at the same time as they did. It hadland borders of four different types: a new border, separating it from


the Czech Republic, which had until recently been in the same state;a fairly short former ‘iron curtain’ (and now Schengen) border withEU member Austria; long borders with two other EU candidate states,Hungary and Poland; and a future Schengen border 97 kilometreslong with Ukraine, which had no immediate hope of joining the EU.Slovakia’s political difficulties in the mid-1990s had led to its initialexclusion from the ‘first group’ of candidate states to which it natu-rally belonged in terms of economic development, infrastructure andgeography, and to which it returned quickly after the 1998 parlia-mentary elections; but until 2001, it was not clear exactly how quicklyit was reconverging.

Slovakia’s uncertain status left the three neighbouring ‘first group’states in a difficult situation for several years, since all were techni-cally required by the EU to improve their border regimes withSlovakia, both to stem the increasing flow of illegal immigrantsthrough Eastern Europe in the late 1990s and to prepare for the pos-sibility of having an external Schengen border between themselvesand Slovakia. This led to a strange form of shadow boxing, in whichthe three states paid lip service to EU demands and made some half-hearted efforts to secure their borders, while at the same time theywere overstretched with more pressing changes that needed to bemade in the justice and home affairs area, and never really believedthat a Schengen border would ever exist between themselves andSlovakia. For Poland, its Slovak border was always a far lower prioritythan dealing with the borders with Belarus and Ukraine. The Slovakborder was also hard to defend. It was partly located in mountainousterritory, and had always been fairly porous: one lengthy border ridgehad a ramblers’ path with both Polish and Slovak waymarks, andthere had been fraternal socialist tourist gatherings of Poles, Czechsand Slovaks on mountain tops even in the communist period.Moreover, for the economically deprived districts of north-easternSlovakia, the major preoccupation was opening as many new bordercrossings to Poland as possible, not making travel there more com-plicated. For the Hungarians, ever concerned with maintaining linksto the large Hungarian community in southern Slovakia, the notionof having a Schengen border dividing them from Slovakia was polit-ically repugnant, and they also had more problematic borders withUkraine, Croatia and Serbia to contend with, all of which involvedroutes used by organized crime gangs smuggling illegal immigrants


and drugs. The Czechs were in resource terms better placed to buildup their border with Slovakia, since their country was in the mainsurrounded by EU members Germany and Austria. However, thepost-1992 Czech–Slovak border was porous in the extreme, and the local population expected to be able to go through it whereverand whenever they wanted. While the Czechs built impressive newbuildings at the motorway border en route to Bratislava, the Slovaksfound it hard even to feign an interest in strengthening the Czech–Slovak border, unofficially taking the attitude that if the Czechs weredetermined to join Schengen before they did, then that was theirproblem. The post-1998 Slovak government also soon grasped thatwhat really mattered was the 97 kilometres of remote hilly groundthat separated them from Ukraine.

The final difficulty in this area was related to the timing of full inte-gration into the Schengen system as opposed to EU membership. Anillustration of this is the one transition period in the justice and homeaffairs area requested by the Czech Republic in its original posi-tion paper on Chapter 24, which related to its main Ruzynf Airportin Prague. Although the airport was relatively modern, a reconstruc-tion programme necessary to make it comply with Schengen criteriacould not be completed before 2005. During the period in whichChapter 24 was open, the probable date for EU accession slipped from2002 to 2004, and it was never considered that there was a realisticchance that Schengen border checks between the Czech Republic andexisting EU member states would be lifted before 2005. However,there was sensitivity about formally admitting this. When Slovakiabegan detailed accession negotiations two years after its Visegradneighbours, there were even suggestions in neighbouring countriesthat Slovakia might join the Schengen zone before joining the EU tosave the enormous costs of erecting a Schengen border aroundSlovakia for two years while waiting for it to join.

There was an inherent contradiction between the coercive natureof the Treaty of Amsterdam’s protocol insisting that the candidatestates accept the Schengen acquis before accession and the fact thatthe member states were not similarly obliged to lift Schengen bordercontrols. The accession treaties themselves eventually spelt outwhich parts of the Schengen acquis had to be in place before the dateof accession, and which could be implemented between 1 May 2004and acceding to the Schengen zone.21 It was accepted that the new


member states would require financial support in order to secure theEU’s new Schengen borders, and the Copenhagen European Councilagreed a package providing the ten new member states with a totalof 859 million euros over the 2004–06 period for the Schengenfacility.22

The EU agenda on borders differed from that of the candidatestates because it was less concerned with the practicalities of bilaterallinks between citizens of different states. The major preoccupation ofthe existing 15 member states was the penetration through EasternEurope of illegal migrants and organized crime, which were heavilyinterrelated. The more difficult it became to cross from country tocountry in Eastern Europe, the more widespread became the pur-chase of the services of organized crime gangs by those hoping toreach a better life in the West.23 Although much had changed in theregion in the early 1990s, there was not a tabula rasa when it cameto the development of illegal immigration. Former ‘iron curtain’ bor-ders were easier to protect than those that had previously been withinthe Soviet bloc. Most illegal immigration from the Czech Republic toGermany took place over the old border between Czechoslovakia andthe German Democratic Republic. Not only was the terrain easierand the infrastructure more developed, but local citizens were moreused to moving around in the border area and, being less prosper-ous than in the West, some were more easily tempted into collabo-ration with people-smugglers. Likewise, it was not uncommon fororganized crime groups to involve persons who had studied inCzechoslovakia in the communist period and therefore had localknowledge.

Immigrants who came to work (legally and illegally) also tended tobe from communist or formerly communist countries.24 Such statesdominated the ‘top ten’ countries with citizens living legally in theCzech Republic and Slovakia, joined some way down the list byGermany, and in the Czech case also the USA. Over a quarter of‘foreigners’ legally living in the Czech Republic were Slovaks, andover a sixth of ‘foreigners’ in Slovakia were Czechs, who could liveand work in the other republic virtually without restriction.25 Theywere followed closely by Ukrainians in formal statistics, but in practicethe real number of Ukrainians, at least in the Czech Republic, was farmore significant since large numbers were working there illegallyafter entering the country on tourist visas.26 Czechs had already noted


in the 1990s that the Czech Republic had become an immigrationcountry27 (although this did not preclude some who worked therelater trying to move on westward). Ukrainians were particularlynoticeable in the building trade, although they also worked in textilefactories, bakeries and other unpopular jobs. When restrictions ontheir employment were introduced in the late 1990s, many merelyapplied for business licences, which liberal Czech attitudes enabledthem to obtain, even though all they traded in was their own manuallabour. 28 When this possibility was reduced, and visas were introducedin 2000, they appear to have shifted to seeking asylum: a doubling ofasylum applications to the Czech Republic in 2001 was accompaniedby a similarly sharp drop in 2002 as asylum-seekers were banned fromworking during their first year after they had applied.29

Asylum-seeking was a further complex area. The accession stateshad largely been without any formal structures for dealing withrefugees in the communist period.30 The EU accession process forcedthem to improve procedures so that they were ‘safe third countries’ towhich asylum seekers could be returned if they moved through themto seek asylum further west. Asylum-seeking within the CEECs alsobecame increasingly common in the 1990s. Applications increasedfrom 2207 in the Czech Republic in 1993 to 8481 in 2002.31 InSlovakia, numbers increased from 96 in 1993 to 9743 in 2002, with alarge jump from 1556 in 2000 to 8151 in 2001 – precisely the periodwhen the number of persons detained illegally crossing the borderinto Slovakia also jumped from 3823 to 10,773.32 Whereas citizensfrom post-communist countries dominated among asylum-seekersin the Czech Republic, as with legal migrants, this was less true inSlovakia, where the phenomenon was more closely linked withunsuccessful attempts to reach the West. In both states many asylum-seekers rapidly disappeared from the reception centres to which theywere sent as they made further attempts to move west, and asylumapplications lodged were frequently not pursued because the indi-vidual concerned had quietly disappeared. The Czech authoritiesnoted the coincidence between the nationalities of persons detainedillegally crossing the state border and those who disappeared fromrefugee camps.33 International standards for dealing with asylum-seekers in the EU did not, therefore, always function smoothly in thecase of migration flows through states that were largely transit coun-tries. Slovakia was forced by the EU to abandon a rule that required


asylum-seekers to lodge their application within 24 hours of enteringthe country in order for it to be admissible, although this had somelogic when most asylum requests were made only if the individualconcerned was detained, usually when illegally leaving the countryin a westward direction. Czech moves towards closed detentioncentres for those caught illegally crossing borders were a logicalresponse to problems of asylum system abuse.

Illegal migration also linked in with questions related to visas.Many illegal migrants in both the Czech Republic and Slovakia hadentered legally and either overstayed, or taken employment contraryto conditions of entry, or attempted to leave illegally over a westernborder.34 Given that the accession states would all eventually beissuing Schengen visas valid for the entire zone, harmonizing theirprocedures was particularly important. Priorities were not always thesame, however: states such as Slovakia, and Poland, which borderedon the former Soviet Union, were particularly concerned that thearea should be stabilized, and were therefore unhappy about buildinga ‘fortress Europe’ that excluded it entirely. The problems of statesfurther west that were far stronger magnets for migrants were notalways appreciated.

Questions of policing, and in particular the fight against organizedcrime, which was most relevant for enlargement because of its strongtransnational dimension, had been looked at in regularly updatedstrategy documents in both the Czech Republic and Slovakia sincethe second half of the 1990s35 and led to a number of structuralchanges which are looked at in more detail in Chapter 3. However,while more prominent cases of foreign ‘mafia’ involvement, such asthe occasional shoot-out, gained newspaper attention, many citizenswere more deeply concerned with the general corruption of politicallife in their country.36 The Czech and Slovak governments bothintroduced anti-corruption campaigns.37 This too matched the EUaccession agenda. The striving for more transparency in public lifeand the fight against corruption were key to preparing the candidatecountries for EU membership.

The accession negotiations were complicated by the need to ensurethat the new member states would be capable of carrying out theobligations they had accepted. The difficulties in ascertaining thishad two dimensions. First, post-communist countries had a problemin implementing an internal security agenda since the state was


bureaucratic and inefficient. Although communist states are viewedas strong states that exercised excessive control over their citizens’lives, by the 1980s they had become ‘soft’ states that had problemssystematically implementing and enforcing their policy goals. Theywere successful in limiting citizens’ freedom because they were ableto use clumsy authoritarian means of coercion without democraticaccountability, but they were generally weak in achieving positiveaims. Under communism, people had been implementing a non-indigenous (Soviet) agenda passed down through local communistparties, so the imperative was to feign compliance by demonstratingon paper the existence of the required structures, and producing doc-uments claiming that the required results had been achieved. Whatactually happened was considered less important: beneath a commu-nist veneer, people muddled through as best they could using a mix-ture of corruption and contact networks. The consequence of this wasthat once the cruder coercive mechanisms of the communist periodhad been removed, the state found it hard to develop competence inimplementing complex mechanisms for controlling criminal and anti-social behaviour for the common good. This was an extremely unhelp-ful background to the EU accession negotiations. In many respects,another external agenda was being imposed that did not always seemto meet local needs so there was an innate danger that the accessionstates would respond to the formal EU agenda by obediently harmo-nizing legislation but then not actually implementing it.

One response to the danger of weak implementation was that inJune 1998, the European Council adopted a joint action ‘for collec-tive evaluation of the enactment, application and effective imple-mentation by … [the candidate countries] of the acquis of the Unionin the field of Justice and Home Affairs’.38 This Collective EvaluationWorking Group operated alongside existing procedures for conduct-ing the accession negotiations, and illustrates the second dimensionto the implementation problem. A special working group involvingrepresentatives from the member states rather than EuropeanCommission experts was necessary not just because of the sensitivityof the issues involved, but also because the European Commissionlacked much expertise in the area of justice and home affairs.Chapter 24 was not opened with the first group of candidate statesuntil May 2000, more than two years after negotiations began, andafter the working group had produced its first reports.


The two dimensions overlapped, however. Even where candidatestate interior ministries were anxious to adopt and implement EUstandards in, for example, the area of policing, the structures in placein different member states were often so divergent that it was hard toidentify what was best practice worthy of emulation.39 When officersfrom member state police forces worked as pre-accession adviserswith colleagues in a candidate state under the ‘twinning scheme’introduced in 1998, it was possible for successive advisers to propa-gate noticeably different models of policing. The whole area of jus-tice and home affairs was a classic case of why joining the EuropeanUnion was like jumping on to a moving train: the existing memberstates were still working out how their own different traditions couldbe combined into the AFSJ while the candidate states had to prepareto join whatever might be transpiring from this process.

Joining the new Europe, 2003–

The justice and home affairs chapter of the EU accession negotiationswith the ten states that joined in May 2004 was provisionally closed(pending final closure in December 2002) from late 2001 to the sum-mer of 2002, as shown in Table 1.1. Negotiations had not, in the end,been as complicated as originally predicted, despite the fact that inthe Czech and Slovak cases the European Commission’s first twoannual ‘Regular Reports’ on their progress towards accession hadbeen largely negative about achievements in the justice and homeaffairs area,40 and by the second report in 1999, Chapter 24 was beinglooked at much more closely.

The achievements made by the time the accession treaties weresigned in April 2003 were considerable. On the most basic level,within the new member states there has been an increase in élite andpublic awareness of justice and home affairs issues and their impor-tance. It is now widely appreciated that protecting the EU’s outerborders is essential in order to remove border controls at the EU’sinner borders between old and new member states. The agendas havetherefore to a large extent converged in appreciating that the EU’sAFSJ must be a single area. There has also been an internalization ofthe fact that corruption matters, and something needs to be doneabout it, and, most importantly, that something can be done aboutit. At a domestic level, this coincides with citizens’ concerns when


judging the conduct of domestic political life; it is not merely aresponse to EU criticism.

There has also been a gradual stabilization of interior ministry per-sonnel. The second half of the 1990s had been particularly problematicnot only because the more competent staff with foreign languages werefrequently tempted to more highly paid jobs elsewhere, but alsobecause of the tendency for civil servants to change along with theminister. There have been huge improvements on a technical level aswell. This includes structural changes, such as the demilitarization ofborder guards, for example in Slovakia and Poland. The Czech Republicand Slovakia have reorganized the border and aliens police to end thesystem where management of border crossings and green borders wasdivided. There has been a massive increase in the technology of borderprotection systems, and accompanying technical training. The focus isincreasingly on the new external borders, although the Czech Republicdid announce shortly before enlargement took place that it was increas-ing controls on its border with Slovakia, thereby restricting movementacross the border by Czechs and Slovaks living in the vicinity.

A number of issues concerning visas have also been harmonizedwith EU practice. The positive and negative lists of visa countries are


Table 1.1 Time taken to negotiate Chapter 24 (justice and home affairs) inthe EU accession negotiations

Country Chapter Chapter provisionally Duration ofopened closed negotiations

First groupHungary May 2000 November 2001 18 monthsCyprus May 2000 December 2001 19 monthsCzech Republic May 2000 December 2001 19 monthsSlovenia May 2000 December 2001 19 monthsEstonia May 2000 March 2002 22 monthsPoland May 2000 July 2002 26 months

Second groupMalta June 2001 March 2002 9 monthsLithuania June 2001 April 2002 10 monthsLatvia June 2001 June 2002 12 monthsSlovakia June 2001 June 2002 12 months

Source: European Commission www.europa.eu.int.

now the same throughout the new EU; the physical shape of visashas been changed, with stickers instead of stamps; and passport checksat borders have been mechanized. Preparations for the SchengenInformation System are also advanced. Laws on short-term and long-term residence have been changed to make categories compatiblewith those in the old EU, more complex issues such as deportationprocedures have been amended, and there has been substantialprogress on readmission agreements with third countries.

The establishment of procedures for dealing with asylum applica-tions has also been made compatible with EU standards, including theintroduction of an independent appeal system. Slovakia removedthe condition obliging asylum-seekers to lodge their applicationswithout 24 hours of entering the country. Systems for the manage-ment and accommodation of asylum-seekers, and the integration ofsuccessful applicants, have been improved.

At a police and judicial level, both the Czech Republic and laterSlovakia have changed their unwieldly systems of dealing with policeand judicial investigation, which had involved unnecessary duplica-tion of procedures, especially the collection of evidence. There hasbeen an increased focus on dedicated units for dealing with organizedcrime, which have started to produce results. Immensely complex leg-islation had to be introduced to cope with money laundering, but thiswas compatible with the domestic agenda of combating corruption.Accelerated by the need to join Europol, sophisticated internationalpolice cooperation structures have also been developed, with thewidespread use of police liaison officers, which required among manyother preparations training in the necessary linguistic skills. There hasalso been a start with dealing with other complex issues, such as hotpursuit across borders. Further examples of the demanding legislativerequirements for guaranteeing justice and home affairs cooperationwas the passing of data protection acts, and the practical implemen-tation of the measures concerned. This was a precondition for estab-lishing the trust necessary for data exchange internationally, whilealso representing an improvement in civic rights domestically.

Last but not least, there has been a gradual shift in Western percep-tions, which initially regarded the post-communist accession statesas ‘outsiders’ rather than ‘insiders’. This did not mean automatictrust, but rather that over the years of the accession process, the struc-tural weaknesses of the countries involved were regarded as a problem


of the AFSJ as a whole. It was no longer feasible for East Central Europeto be viewed as an external threat. Moreover, after 11 September 2001,US security discourse that was preoccupied with Islamic terrorismalso dominated European debate on internal security, and less washeard of Russian mafias and other threats from Eastern Europe.While support for military intervention in Iraq on the part of EUcandidate state governments annoyed ‘old Europe’, and tended tosuggest that in security matters their allegiance lay more with US-ledNATO than with a Franco-German-led EU, the entire dispute none theless illustrated that they were clearly defined as ‘insiders’ in fightingthe major security battle of the Western world.

Practical challenges remain, however. Ensuring that legislation isimplemented and not merely harmonized is a continuing preoccu-pation. The draft EU constitution specifically made provision forintroducing ‘objective and impartial evaluation’ of the implementationof Union policy on the AFSJ (see Chapter 8). This could potentiallyextend to all member states the monitoring of the candidate statescarried out by the collective evaluation working group during theaccession negotiations. The accession treaties also contained a safe-guard clause on mutual recognition in criminal law and civil mattersallowing for provisions to be suspended in the case of inadequateimplementation of the relevant acquis.41 Each new member state wasalso required to prepare and start implementing a Schengen ActionPlan before accession in order to ensure that there was a realisticchance of it becoming ‘Schengen-ready’ within a few years.

More fundamentally, the lifting of Schengen border controls,together with joining the eurozone, is one of the two major hurdlesleft before enlargement is properly completed. It is of considerableimportance to the citizens of the new member states, because freedomof travel has an enormous symbolic significance for people who livedunder communism. In the 1980s, as the coercion of communiststates became less brutal, and tourism within the Warsaw Pact stateswas commonplace, not being able to go to the West was an ever moreprominent grievance of citizens behind the ‘iron curtain’. The dis-mantling of borders therefore has a deeper meaning than in WesternEurope. There were, admittedly, some common misunderstandingsabout what EU membership meant in the accession states beforeenlargement. The transition periods imposed by most of the 15 oldEU member states before granting the free movement of labour had


been the most contentious issue publicly in the late stages of theaccession process, and this was often confused with restrictions ontravel. Citizens of the accession states did not always grasp that thefree movement of persons would be granted in full from 1 May 2004,so that they could travel round the EU at will for personal reasonssuch as tourism and shopping, with only permission to work thererestricted. It was also rarely appreciated that EU citizens had a right tocross Schengen borders, even though border guards could checkwhether or not they were indeed EU citizens. Even so, however, thephysical disappearance of border controls had an intrinsic importancein Eastern Europe.

There are also outstanding questions on how the AFSJ will develop.One is about future management of migrant flows. Burden sharing isnot just a matter of coping with uneven numbers of asylum-seekersand refugees arriving in different member states, but also of the costsof defending the EU’s external borders. Furthermore, the fight againstorganized crime is not a problem that can be ‘solved’. The need todevelop and improve transnational cooperation is permanent, sinceachievements and implementation capacity in any area to do withcrime will always have more imperfections than in other areas.While, in other areas of the acquis, society’s flaws make enforcementmeasures necessary, in the area of crime they are the core of the issueat hand.

In some respects, the new member states may find deepeningcooperation in the justice and home affairs area easier than oldermember states. It is known as a domain where member state govern-ments guarded their competencies particularly jealously. Over thelast few years, however, the states of Central and Eastern Europe havebecome rather used to people visiting their police headquartersand interior and justice ministries and telling them what to do, orwriting reports about their problems with corruption levels. A systemwhere such devices are mutual, and where they themselves alsomonitor others, may appear rather attractive in comparison. Post-communist states have, over the last 15 years, developed an enor-mous capacity for adaptation and change, at both official and publiclevel. Unless there is a backlash against interference after they havefinally achieved the long-awaited goal of EU accession, they are likelyto be less problematic participants in the process of developing theAFSJ than some old member states.


Notes

1 For one recent account see V. Mitsilegas, J. Monar and W. Rees, TheEuropean Union and Internal Security: Guardian of the People (Basingstoke:Palgrave, 2003), Chapter 5.

2 The journal Kriminalistika and the Institute for Criminology and SocialPrevention at the Ministry of Justice.

3 B. Buzan, O. Wæver and J. de Wilde, Security: A New Framework for Analysis(Boulder and London: Lynne Riener, 1998), p. 24.

4 For European Commission Eurobarometer data, see http://www.europa.eu.int/comm/public_opinion/archives_en.htm.

5 See for example Statisticky úrad Slovenskej republiky, Názory verejnosti naprácu policajného zboru z aspektu prevence kriminality a krádezí vlámaním dobytov, Statistické analyzy a informácie e. 471/1996.

6 Ministry of the Interior of the Czech Republic, Zpráva o situaci v oblastimigrace na území Eeské republiky za rok 2002, Prague, 2003, pp. 32–3.

7 Úrad hranienej a cudzineckej polície policajného zboru Bratislava, Legálnaa nelegálna migrácia v Slovenskej republiky za rok 2002, Bratislava, 2003,p. 17; Odbor hranienej a cudzineckej polície Prezídia Policajného zboru,Vyhodnotenie roka 1998, Bratislava, 1999, p. 6.

8 Extensive surveys have been carried out in the Czech Republic examin-ing to what extent foreigners rather than Czechs are involved in orga-nized crime. See M. Scheinost, ‘Vyzkum organizované kriminality v ER vletech 1994–1996, hlavní zjistfní a doporueení’, Právní praxe, 45 (1997),302–11; M. Cejp et al., Vyzkum organizovaného zloeinu v Eeské republice II(Prague: Institut pro kriminologii a sociální prevenci, 1999).

9 Buzan et al., Security, p. 40.10 For some Czech views on this, see M. Cejp, Spoleeenské príeiny a dusledky

organizovaného zloeinu (Prague: Institut pro kriminologii a sociální pre-venci v Praze, 1999), pp. 18–21.

11 For discussion of securitization in the Slovak context, see A. Duleba,‘Country Report: Slovak Republic’, PROGRES Project, University ofGroningen – Theme 4: Security in Europe: (New) Threats on the Agenda,Budapest, 19–20 November 1999 (unpublished paper).

12 See A. Duleba, The Blind Pragmatism of Slovak Eastern Policy: The actualagenda of Slovak–Russian bilateral relations (Bratislava: Research Centre ofthe Slovak Foreign Policy Association, Occasional Paper 01, 1996).

13 For public opinion on Slovakia’s foreign policy direction, see Z. Bútorová,‘Verejná mienka’, in M. Bútora and M. Ivantysyn (eds), Slovensko 1997:Súhrnná správa o stave spoloenosti a trendoch na rok 1998 (Bratislava:Institút pre verejné otázky, 1998), pp. 216–19.

14 Duleba, Country Report.15 K. Henderson, ‘The Path to Democratic Consolidation in the Czech

Republic and Slovakia: Divergence or convergence?’, in G. Pridham andA. Agh (eds), Prospects for Democratic Consolidation in East-Central Europe(Manchester: Manchester University Press, 2002), pp. 205–37.


16 For the ‘Copenhagen criteria’ for EU membership, see European Council,‘Presidency Conclusions’, Copenhagen European Council, June 1993; forthe European Commission’s opinions on the candidate states, see EuropeanCommission, ‘Agenda 2000: For a stronger and wider Union’, Bulletin ofthe European Union, Supplement 5/97, 1997.

17 Mitsilegas et al., The European Union and Internal Security, p. 130.18 Ibid., p. 160; G. Amato and J. Batt, Final Report of the Reflection Group on

the Long-Term Implications of EU Enlargement: The Nature of the New Border(Badia Fiesolana: Robert Schuman Centre for Advanced Studies, EuropeanUniversity Institute with Forward Studies Unit European Commission,1999), p. 62.

19 On trust in the police in both countries, see Akadémia policajného zboruv Bratislava, Vyvoj dôveryhodnosti policajného zboru a analyza faktorov, ktoreju oplyvmujú, Bratislava, 2000, http://www.minv.sk.

20 See ‘Názory obeanov na potrebu podplácania a vyh adávania protekcia’,Názory, 14/3 (2003), p. 4; J. Buriánek, ‘Verejnost’ a krimininalita v ER:trendy vyvoje’, Sociológia, 32/1 (2000), 80–97.

21 The Treaty of Accession 2003 of the Czech Republic, Estonia, Cyprus, Latvia,Lithuania, Hungary, Malta, Poland, Slovakia and Slovenia, signed in Athenson 16 April 2003, Annex 1. Available at http://www.europa.eu.int. Seealso Official Journal of the European Communities, L 236, 2003.

22 European Council, ‘Presidency Conclusions’, Copenhagen EuropeanCouncil 12 and 13 December 2002, Annex 1; The Treaty of Accession,Article 35.

23 E. Bort, Illegal Migration and Cross-Border Crime: Challenges at the EasternFrontier of the European Union, EUI Working Paper RSC No. 2000/9, Florence,EUI, 2000, p. 13; P. Hapák, ‘Aktuálne problémy nelegálnej migrácie nastátnej hranici SR’, in Akadémia policajného zboru v Bratislave, Nelegálnamigrácia osôb v stredoeurópskom regióne, Zborník z medzinárodného seminárakonaného dma 9.9.1999, Bratislava, 2000, p. 28; M. Scheinost, Nelegálnímigrace a prevadfeství jako jedna z aktivit organizovaného zloeinu (Prague:Institut pro kriminologii a sociální prevenci, 1995).

24 Czech Republic/Slovakia, Ukraine, Vietnam, Poland, Russia, ‘Yugoslavia’,China, Hungary, Bulgaria and Romania.

25 Ministry of the Interior of the Czech Republic, Zpráva o situaci v oblastimigrace na území Eeské republiky za rok 2002, p. 33; Úrad hranienej a cud-zineckej polície policajného zboru Bratislava, Legálna a nelegálna migráciav Slovenskej republiky za rok 2002, p. 17.

26 One estimate in the late 1990s was that there were 400,000 registered andunregistered foreigners in the Czech Republic. D. Drbohlav, ‘InternationalMigration and the Czech Republic’, in M. Hampl et al., Geography ofSocietal Transformation in the Czech Republic (Prague: DemoArt/CharlesUniversity, 1999), p. 239; a higher estimate is 300,000 in the mid-1990s,C. Wallace, O. Chmouliar and E. Sidorenko, ‘The Eastern frontier ofWestern Europe: mobility in the buffer zone’, new community, 22/2(1996), p. 275.


27 D. Drbohlav and Z. Eermák, Migrace jako bezpeenostní factor soueasnosti,Univerzita Karlova, vyzkumny project zpracovany pro Ministerstvozahranieních vfcí ER, Prague, June 2000, p. 33.

28 Ibid., p. 96.29 The numbers of asylum applications increased from 7217 in 1999 to 8788

in 2000 and 18,088 in 2001, then went down to 8481 in 2002; of these,there were negligible numbers of Ukrainians in 1999, but 1145 (15.9 percent) in 2000, 4420 (24.2 per cent) in 2001, and 1464 (21.7 per cent) in2002. Ministry of the Interior of the Czech Republic, Zpráva o situaci voblasti migrace na území Eeské republiky za rok 2002, pp. 39, 90; Zpráva osituaci v oblasti migrace na území Eeské republiky za rok 2001, p. 44.

30 See S. Lavenex, Safe Third Countries: Extending the EU Asylum andImmigration Policies to Central and Eastern Europe (Budapest and New York:Central European University Press, 1999).

31 Ministry of the Interior of the Czech Republic, Zpráva o situaci v oblastimigrace na území Eeské republiky za rok 2002, p. 39.

32 Migraeny úrad Ministerstva vnútra Slovenskej republiky,http://www.minv.sk; Úrad hranienej a cudzineckej polície policajnéhozboru Bratislava, Legálna a nelegálna migrácia v Slovenskej republiky za rok2003, p. 33.

33 Ministry of the Interior of the Czech Republic, Information on theMigration Situation in the Territory of the Czech Republic in 1999, p. 6.

34 European Parliament, ‘Migration and Asylum in Central and EasternEurope’, Directorate General for Research, Working Paper, Civil LibertySeries LIBE-104EN, p. 56; M. Kutlík, ‘Problémy nelegálnej migrácie naregionálnej úrovni’, in Akadémia policajného zboru v Bratislave,Nelegálna migrácia osôb, pp. 36–53.

35 Ministry of the Interior of the Czech Republic, Updated Strategy ofCombating Organized Crime, Prague, 1997; the Slovak government approveda Comprehensive Programme of the Fight against Crime in 1999.

36 Transparency International Corruption Perception Index 2003 shows theCzech Republic and Slovakia at 54 and 59 in a list of 133 countries, whichis below all old EU member states, and most new ones. See alsoE. Síeáková, Faces of Corruption in Slovakia I (Bratislava: TransparencyInternational Slovakia, 1999); P. Frie et al., Korupce na eesky zpusob (Prague:G plus G, 1999).

37 In 1998, the incoming Slovak government compiled unflattering ‘BlackBooks’ on problems, including corruption, in the ministries of justiceand the interior – Ministerstvo vnútra Slovenskej republiky, Analyzazdedeného stavu v rezorte ministerstva vnútra (eierna kniha), Bratislava,January 1999 and Ministerstvo spravodlivosti Slovenskej republiky,Eierna kniha (Analyza zdedeného stavu v rezorte ministerstva spavodlivosti),Bratislava, January 1999 – followed by an anti-corruption campaign witha government office web page at http://www.vlada.gov.sk/bojprotiko-rupcii. See also Vládní program boje proti korupci v Eeské republice, 1999,www.mvcr.dokumenty/korupce/zprava.htm.


38 Council of the European Union, ‘Joint Action of 29 June 1998’, OfficialJournal of the European Communities, L 191/8–9, 7 July 1998.

39 Amato and Batt, Final Report of the Reflection Group, p. 62.40 For the full set of progress reports, see Commission of the European

Communities, COM(1998) 700–11 final, 17 December 1998; COM(1999)500–14 final, 13 October 1999.

41 The Treaty of Accession 2003, Article 39.


25

2Organized Crime in the New EU States of East Central EuropeMiroslav Nozina

Introduction

The new EU member states in Central Europe have a crucialgeographical position in Europe, for as transit countries from East toWest and vice versa, they have a strategic role in combating cross-border crime. Since the ‘iron curtain’ fell in 1989, many criminalshave begun using their territories for illegal activities such as illicittrading in drugs, stolen vehicles, alcohol, cigarettes, weapons, explo-sives and nuclear materials, and aliens, as well as counterfeiting, pro-fessional theft, extortion, racketeering, financial frauds and moneylaundering. The local underworlds in Poland, Hungary, Slovakia andthe Czech Republic meet with criminal groupings from the formerSoviet Union, the Balkans, Italy and Western Europe, Asia, LatinAmerica, Middle East and Sub-Saharan Africa to create a new andmuch more developed crime industry. Organized crime also has atendency to ‘buy’ members of parliament and bribe government offi-cials, thus securing immunity from investigation and prosecutionand creating a parallel economy of crime. Although regional differ-ences exist, the basic mechanisms of organized crime activities andthe building up of new security systems in the new EU states ofCentral Europe have in many aspects been identical. Consequently,this chapter will focus on these common trends.

The phenomenon of organized crime

‘Socialist style’ organized crime

In the former Czechoslovakia, Hungary and Poland, the communisteconomic and political models of administration and the totalitarianpolice state were hidden behind almost impenetrable borders andthis led to the creation of a specific ‘socialist’ criminal underworldthat was in many respects different to the criminal underworldsof West European countries. Under strong police and social control,the ‘classical’ activities of organized crime were highly restricted.Trafficking of drugs, trafficking in arms, car theft, kidnapping, racke-teering and trafficking in human beings were too risky, and also notvery profitable because of the very limited local markets for illegalservices and goods and the lack of foreign currency. Hermeticallysealed borders efficiently blocked major imports of drugs, illegalmigration and the export of stolen cars and goods. In Czechoslovakiaand Hungary, for example, there was no black market for drugs in theclassical sense. Drugs were peddled mainly in closed circles in whicheveryone knew each other, and the producers were also consumers.Imports of foreign drugs such as heroin or cocaine, and addiction tothem, were very limited.1 Up until the end of the 1980s, there wasonly one registered cocaine addict in the former Czechoslovakia.2

The situation was slightly different in Poland, where more openborders allowed imports of drugs on a small scale even before thepolitical changes of the 1980s.

Nevertheless, dangerous ‘hard’ drugs did appear under communism.They were produced from various medicines, and their effects werecommensurate with heroin or cocaine. In Czechoslovakia, these were mainly what was called pervitin, as well as metamphetamine, aclassic stimulant, and also braun (that is, brown), which was codeine,an opium derivative. Pervitin was produced from ephedrine stolenfrom pharmacological factories and medicines such as Solutan thatwere distributed free of charge in the communist health care system.The main way of obtaining braun was from the readily availableAlnagon medicine, mostly in fluid form. Other medicines were widelyabused as well.3 The abuse of medicines was also prevalent in Polandand Hungary. In Poland, ‘Polish compote’ – a heroin-type drug madefrom the poppy – was widely produced domestically, mainly by theaddicts themselves.


In contrast to the situation in Western countries, drugs, illegalmigration and prostitution never became the vehicle of ‘communist’organized crime. Contract killing or racketeering were virtuallyunknown. Its main domain was economic crime. The long-term cri-sis of the socialist system had created a situation where the chroniclack of certain goods and services was covered from semi-legal andillegal sources. Some criminal groups with varying levels of organiza-tion successfully operated in this sphere. Their members were engagedin a wide spectrum of economic criminal activities including theimport and distribution of goods in short supply, illegal currencyexchange, exports of works of art, theft and sale of goods.4 Thesegroupings lasted for years, although in most cases they were notstrongly hierarchically or vertically organized, and their members weretied together only on the basis of mutual advantage.5 Vast corruptionnetworks were formed, which penetrated deep into the spheres of thestate economy and bureaucracy. A new stratum of ‘socialist nouveauxriches’ emerged in communist societies – grey entrepreneurs andpeople who exploited their position in the state apparatus and Partynomenklatura. These people have continued to cooperate even afterfall of communism, frequently outside the limits of the law.6

Democratic changes in the 1980s and 1990s

At the end of 1980s, the communist states of Central Europe embarkedupon a process of fundamental political, social and economic trans-formation. As the borders and the economy opened up, the EastCentral European (ECE) states became part of global processes. Morepeople and goods arrived, and there was more transit across theirterritory. Far-reaching economic transformation was combined withextensive transfers of property, and the rapid creation of markets andcapital. The changes were often accompanied by major economicand social problems, including rising unemployment and fallingliving standards. Deep-rooted truths as well as personal everydayexperiences and routine rules of practical activity ceased to apply.New patterns and criteria of social success were established, norms ofsocial behaviour became relative, social regulation and control wereundermined – and all this in a situation where the legal and ethicalawareness of society had already been warped by developments overthe long years of communism. The existing state of social awarenesscontained risk factors that paved the way for anti-social behaviour.

Organized Crime 27

In the new model of social success, material gain was placed at theforefront, frequently with no regard for where it came from. Ethicalstandards had been weakened by the moral devastation and unful-filled consumer aspirations of the previous era.

Legislation also underwent fundamental changes. This was a gradualprocess accompanied by many difficulties, and often considerabledelays, before legislation could establish the legal provisions for amore effective struggle against crime. The judiciary, the police andthe administrative apparatus had adapted well to the conditions of‘socialist style crime’, but had almost no experience in investigatingthe new forms of crime that were now coming from abroad.7

In Poland, the number of crimes registered by the police increasedfrom 547,580 in 1989 to 883,346 in 1990 and 1,404,229 in 2002.8

The situation in Czechoslovakia was similar: in the Czech part of thecountry the number of crimes committed more than tripled from120,769 in 1989 to 398,505 in 1993 and 426,626 in 1999. However,Czech police statistics then report a decrease in the number ofdetected crimes to 372,341 in 2002.9 Slovakia also faced a stormy timein the 1989–93 period, when the number of crimes grew by 350 percent. As in the Czech Republic, the situation then stabilized.10 In2001, only 93,053 crimes were committed in Slovakia.11 Hungaryalso reports a decrease in registered crime at the end of the 1990s, witha decline of 15 per cent in 1999.12

With the exception of Poland, after the dramatic transition periodin the early 1990s criminality began to stagnate throughout EastCentral Europe (ECE) at the end of the decade. According to Interpolsources, the volume of crime per 1000 inhabitants was as follows:Hungary: 41.4 (2002); Czech Republic: 36.3 (2002); Poland: 35.9(2001); Slovakia: 16.9 (2001). By comparison, Sweden reported 78.9(2002); the United Kingdom (England and Wales): 99.3 (2001); theUK (Scotland): 82.2 (2001); the UK (Northern Ireland): 23.8 (2001);the Netherlands: 78.1 (1998); Austria: 72.7 (2002); France: 69.3 (2002);Italy 37.5 (2001); Spain: 23.6 (2001).13

These data have only orientational value owing to the differentsystems of statistical analysis, the varying definitions of criminaloffences and legislation, divergent levels of confidence in the policeand so on in individual countries. Nevertheless, all ECE states expe-rienced a dramatic increase in crime after the democratic changes,but only by ‘local standards’. During the communist regimes crime


rates were very low, and far below the levels of crime in Westerncountries. The rise in crime is only spectacular when compared withthe previously low level of criminality.

The main problem is not the ‘quantity’ of criminal offences, butthe ‘quality’, with frequent links to organized crime. Because of this,many criminal offences considered to be petty crimes during thecommunist regime, such as illegal trade in drugs, people, weapons,cars, and crimes of violence, have become highly professionalizedand are now carried out much more widely. The social and economiclosses due to crime are higher than ever before.14

Organized crime structures in East Central Europe

After the fall of communism, the ECE states were societies in transi-tion with permissive laws, unprotected frontiers, an advantageousgeographic proximity to the European Union, and police forces inex-perienced in the investigation of organized crime. The politicalchanges and social turmoil produced many people eager to makeeasy money regardless of the law. All this created numerous oppor-tunities for criminal operations.

The status quo on the criminal scene changed dramatically. Therestructuring of organized crime started very quickly, at the begin-ning of the 1990s. The underworld was generally formed in two waysin the ECE states: from local sources and from abroad. Traditionallocal criminal underworlds became progressively better organizedafter they were joined by members of former communist nomen-klatura, former ‘grey’ businessmen, state security service membersand, increasingly, corrupt public officials. They created a new crimi-nal subculture able to control local underworlds and to penetrate andinfluence the newly created state administrative structures. However,they were not the main bearers of the new modern methods of crim-inal ‘business’. Generally, these came to post-communist CentralEurope from abroad. The main motor of criminal activity was inter-national organized crime. For rapacious criminal groups operatingwith highly professional methods, the local underworld representedbut trivial competition. By skilfully using gaps in immigration andbusiness laws, most particularly the lax approach to setting up com-panies, as well as ‘dirty’ money from abroad and the services of localpeople, practically all the main transnational criminal groupingsestablished themselves in East Central Europe in the early years of

Organized Crime 29

the democratic transition. The participation of foreign nationals incriminal acts has been on the rise. This applies in particular to citizensof former Soviet republics.

According to expert estimates, there are currently approximately75–100 organized crime groups operating in the Czech Republic with2000–2500 members. The number of ‘external assistants’ is likely tobe approximately the same. More than a third of the organizationsare highly developed. Former Soviet citizens, most particularly fromRussia and Ukraine, form the largest foreign element in organizedcrime, followed by citizens of the former Yugoslavia, Bulgarians,Albanians, Vietnamese and Chinese. The presence of groups fromelsewhere in the Balkans (Turkey, Romania, Greece), Italy, the MiddleEast, Sub-Saharan Africa and Latin America together with groups fromother ECE states has been also registered. The largest groups identifiedin the Czech Republic are three of Russian origin, each with about100–200 members. Russian and Ukrainian groups of a smaller size,with about 50 members, have been observed in some parts of thecountry. Half of the groups have mixed Czech/foreign composition,including more exotic nationalities such as Chinese and Vietnamese,while slightly more than a quarter are composed exclusively offoreigners. This indicates that there is cross-border activity involvingall neighbouring countries, as well as some outside Europe.

Operations often involve Czech territory as a transit area from eastto west, where target countries are primarily those nearby, such asHungary, Italy, Spain and France. Additional traffic from the Far Eastand Africa is routed via the Czech Republic to the USA and theCaribbean. Illegal migrants are often gathered in Ukraine and othercountries of the former Soviet Union, Asia and the Middle East andthen smuggled across Slovakia, Hungary and Poland to the CzechRepublic, and from there to Western countries. The strongest contin-gents of Czechs engaged in organized crime have been registered inFrance, Italy, Bulgaria, Croatia and Romania.15

Slovakia also reports well-organized hierarchical structures of orga-nized criminal groups. In 1998, the Slovak police had information on52 groups active on Slovak territory that comprised 600 members.16

In 2002, the Slovak Police registered 33 groups, of which seven wereeliminated during the course of the year. They also cooperate withforeign criminal groups, in particular where drug-related activitiesare concerned. Group leaders are typically Slovak nationals, though


groups involved in drugs offences have foreign leaders, usually fromAlbania or Kosovo, or from former Soviet republics. Groups sizes rangefrom five to 50 members, with an average of 15 members per group.

The entire territory of Slovakia, and the biggest cities in particular,are divided up between organized crime groups. Slovaks also collab-orate with foreign groups elsewhere in and outside Europe. All neigh-bouring countries generally rank as partner countries. Cooperationwith organized criminal groups in other European countries variesaccording to the commodity. Romania is used for stolen cars; Germany,Italy, Spain and Netherlands are partners for the trafficking ofwomen; other EU states are used for people-smuggling; and contactswith Scandinavia, the Netherlands, Germany, Turkey, Albania,Bulgaria and Romania are used for drug trafficking. Non-Europeancountries include drug producers such as Colombia and other LatinAmerican countries, and Asian countries.17

According to a European Committee on Crime Problems report,in 1999 Hungary had 76 active organized crime groups, with a totalof 1982 individuals suspected of involvement – an average of 26 persons per group. Six massive groups were observed, each with100–300 members, the largest ones operating in the Budapest metro-politan area. Nearly half (34 groups) had between five and ten mem-bers, and 28 groups had between 11 and 30 members. The structureof groups is typically hierarchical in nature. Many groups operatingindependently of the larger ones also have a hierarchical structure.Of 62 hierarchical groups observed, 38 had one leader, eight wereruled by two or more individuals, and 16 hierarchical groups had amulti-layered management structure.

More than half the organized crime groups consisted of Hungariancitizens only. One-third had mixed membership and seven groupsconsisted exclusively of foreign nationals. The largest group of for-eigners participating in the organized crime scene was formed by per-sons from former Yugoslavia (in 11 groups). Citizens of Slovakia (sevengroups) and Ukraine (seven groups) were also numerous. Arabs, Turks,Germans, Russians, Sub-Saharan Africans, Albanians and Romanianswere also observed. Isolated instances of organized crime groupsinvolving citizens of other European countries were also found, as wellas groups containing Armenians, Georgians, Chinese and Australians.

The majority of groups operate in a large geographical area spanningseveral counties within Hungary. The metropolitan area of Budapest

Organized Crime 31

and the northern counties are the most important. Eleven groupswere found to operate beyond the borders of Hungary. The connec-tions mainly encompass Slovakia and Ukraine. However, theNetherlands, Germany, Italy, Romania and Austria also play a role. Ithas been noted that links to Slovak organized crime groups ofteninvolve violent crimes, and Slovak groups are also very active intrading large volumes of arms and explosives.18

In 2002, Poland’s Bureau for Fighting Organized Crime registered522 organized criminal groups with 6134 members. A total of 417groups were Polish and 86 groups were mixed. Criminal groupsincluded 381 foreign citizens. Taken as a whole, the organized crimescene in Poland is composed of foreign nationals from over 30 coun-tries, with a preponderance of Ukrainians and Belarusians (25 percent; nine registered groups were homogeneous, with nationals ofRussia, Belarus and Ukraine). The other major nationalities areGerman, Turkish, Russian, Lithuanian, Italian and Vietnamese.19

Groups with more complicated structure, for example a cell-basedone, are not very common, but do exist, mainly among internation-ally based groups engaging in theft, the legalizing and smuggling ofmotor vehicles, the production, smuggling and trafficking of drugsand the transfer of people across borders. However, the prevailingstructure is hierarchical, with two or three different levels. Every grouphas a single leader and a few other members belonging to some sort ofcollective leadership. Other members, so-called soldiers, are usuallynot full-time members. They are hired to do a specific job. Thereforegroups are usually not stable apart from the leadership, and constantlychange according to the prevailing needs and opportunities.20

As a whole, the size, composition and spheres of organized crimein the countries of East Central Europe have become very similar tothe situation in the rest of the European Union. Criminal organiza-tions are directly linked to foreign countries, and their activities copythe trends of international organized crime.21

Organized crime in the economy and society of East Central Europe

The lack of reliable empirical data makes it very difficult to determineto what extent organized crime is a real threat to the economyand society of the ECE states. Even sources within the police andjudiciary do not have a common view on the seriousness of these


problems: whereas the police states that they are really serious, thejudiciary usually claims that the police exaggerates the situation.

Expert answers to a questionnaire of the EU/Council of EuropeOctopus project on corruption and organized crime22 suggest somenegative trends in the overall structure of crime in ECE. In particular,the danger of falling victim to crime against life and health hasincreased, and the same applies to offences against property whereaggression, violence and brutality are used against victims. Criminalsuse military equipment such as automatic rifles, home-made boobytraps, grenades and remotely controlled explosive charges. Crimeslinked to the settling of scores between criminal groups have alsobeen on the rise, including murder, robbery, assault and criminal ter-rorism. A new category of serious crime has also appeared: contractkillings that are often committed by professional hitmen. The pro-fessionalization of crime and the participation of foreign nationals incriminal acts have increased. The sharp rise of some illegal activities,especially those with an international dimension such as the illegaldrugs trade, the exploitation of prostitution, racketeering, and thesmuggling of people, vehicles, works of art and weapons is directlylinked to organized crime.

Organized crime is not only connected to traditional illegal activi-ties but also to white-collar and corporate crime, or at least to the pur-chase of real estate within the framework of the privatization process.According to the Corporate Governance Risk Survey, the businessenvironment in East Central Europe is not perceived as violent ordominated by organized crime, yet respondents expressed concernabout the opaqueness of public tenders and the prevalence of corrup-tion.23 In this milieu, criminal organizations continually try to maxi-mize their legal activities, mainly through purchasing as much realestate and land as possible, penetrating legal companies and com-mercial structures, and employing special financial and legal advisers.

In the sphere of international organized crime, several very danger-ous tendencies have been registered. Nearly all international groupingshave created a stable base in the region of East Central Europe. Theyhad two main interests in the region: easy access to Western Europe,exploiting the fact that people could travel through the EU with fewrestrictions on a Czech, Hungarian, Polish or Slovak passport evenbefore EU enlargement; and the region’s own criminal businesspotential.

Organized Crime 33

Russian-speaking groups represent the major threat in this sphere.‘Russians’ have a lot of funds, which are mainly being invested inreal estate in the region. Due to their constant infiltration of the state structures in the CIS countries, their influence and power is broadening. According to Czech Security Intelligence Service find-ings, a gradual transition from openly criminal activities to legalbusiness operations is typical. They arrive in the ECE countries withcapital from crimes already committed elsewhere, and then utilizethe capital to establish legal trading companies.

The number of casinos, restaurants and business companies ownedby Russians, or with Russian participation, is growing steadily in theCzech Republic. There are more than 200 Czech–Russian joint ven-tures in Prague, a considerable number of which act as a respectablefront for criminal activities. Russians invest in hotels, casinos, restau-rants and other real estate in Prague and the well-known spa townsof Karlovy Vary and Mariánské Láznf.24 Hungarian territory is alsofrequently used by Russian-speaking organizations. The participationof such organizations in the privatization of two Hungarian arms-producing companies was especially alarming.25 Information gath-ered by Poland’s Bureau for State Protection also indicates thatsignificant numbers of Russian organized crime groups operating inthe USA are trying to take over criminal groups in order to stabilizetheir position in Poland.

After taking up residence, the tendency is for organized crimebosses to penetrate economic and political life. Especially in the lastfew years, the police have also registered attempts by Russian-speakingcriminals to penetrate and corrupt the state administration, and toplace their members or collaborators in governmental bodies andpolitical parties. They often try to involve company employees aswell as high-ranking state officials, members of parliament andcelebrities in illegal activities by offering them profitable posts inbusiness, or by sponsoring political parties. A confidential report bythe Czech Interior Ministry stated that the goal of organized crimewas to gain control over the trade in strategic raw materials andbanking, and to gain real power in the state by means of investmentcompanies and funds, and contacts within the sphere of govern-ment.26 At a lower level, East Central Europe faces the danger of eco-nomic and social penetration by Italian, Balkan and ethnic Asianinternational crime organizations.


There have been suspicions in recent years that Hungarian organizedcrime has been connected with the highest level of politics, and thattop politicians are involved in activities of the so-called black andgrey economy. Similarly, some Slovak official sources suggest thatSlovakia’s major problem in suppressing organized crime may becorruption, and the links of organized crime representatives withstate structures.27

Responses to organized crime

General remarks

Policies against organized crime in the states of East Central Europecan in the long run only be successful within the wider context ofa prosperous and open society. Governments also have to ensure anappropriate (re-)distribution of goods and services; otherwise blackand grey economies will emerge, and together with them organizedcriminal groups able to deliver them. If governments do not take mea-sures to prevent part of the population from becoming economically,socially and culturally marginalized, some elements within the stig-matized groups – such as the Roma of East Central Europe – may orga-nize their survival in an illegal way. Furthermore, governments needto develop a pragmatic policy on moral issues in order to contain prob-lems such as prostitution or corruption. Policies must be directed atthe containment of problems, and not at seeking radical solutions. Ifthis is not done, the result will be either symbolic moral crusades, orelse black and grey markets, organized crime and corruption scandals.

Compliance with the standards of good governance is also a gen-eral prerequisite for a successful policy against corruption and orga-nized crime. A dishonest administration is not only easy prey fororganized criminal groups, but will also actively facilitate organizedcrime for its own ends. Unfortunately, the level of corruption is stilluncomfortably high in the ECE region.28 Widely publicized ‘CleanHands’ programmes have all, without exception, ended in failure.

Finally, it is essential to establish and to maintain good relationshipswith the governments of neighbouring and more distant countries.Otherwise, it is almost impossible to establish and sustain effectivemechanisms for mutual legal assistance and police cooperation,without which no policy against organized crime can be successful inview of its increasing internationalization.29

Organized Crime 35

The reconstruction of legal systems

As mentioned above, crimes such as bombing, kidnappings andhostage taking were almost totally unknown before 1989, while busi-ness crimes such as racketeering and extortion did not even exist inthe communist penal code. The spread of organized crime after thefall of communism called for a fundamental reshaping of legislation.As well as this, the political interests of the Central European countriesin adapting their legislation and security structures to EU standards aspart of the process of preparing for being part of the AFSJ played animportant role in this reconstruction. In many spheres, the recon-struction would be much slower and less effective without EU pres-sure and assistance. As the result, a lot of legislation and structuralchanges mirror the West European patterns.

There was a serial codification and re-codification of laws that peakedthroughout the region in the second half of the 1990s. National leg-islatives had to deal with several common problems in their attemptsto adapt the law to the new conditions on the criminal scene. Apartfrom establishing sanctions against new kinds of crime, they neededto establish definitions for organized crime groups and for the crimescommitted by such groups, and for the crime of participation in acriminal conspiracy. They also needed to legislate for the impunity ofundercover agents, ‘controlled purchases’, and the secret surveillanceof the movement, storage and trafficking of objects derived fromcrime, since this is one of the most effective means of fighting orga-nized trafficking in weapons, nuclear materials and drugs. Provisionalso had to be made for the immunity of witnesses, and for witnessesto give evidence incognito.

In general, the legal systems of East Central Europe, which wereused to copying Soviet models, and had adapted to the conditionsprevalent in communist states, all needed to make more or less thesame corrections and amendments to their legislation in order tocope with the new situation in which they found themselves. Initiallegislative changes began soon after the fall of communism. Theyusually dealt first with the removal of politically motivated commu-nist principles from criminal codes, and only later with the need toadapt legislation to the new circumstances created by changes in thepatterns of criminal activity.

The Czech Criminal Code was amended several times in the firsthalf of the 1990s as a reaction to the threat of organized crime,


introducing more restrictive penal sanctions for crimes committed inorganized groups, and implementing new definitions of crime, forexample participation in committing crimes, the illegal production andpossession of nuclear materials, trafficking in children and illegal bor-der crossing. Substantial changes in the Criminal Code, the CriminalProcedure Code and the Police Law were then adopted in 1995 by lawNo. 152/1995, with some further subsequent amendments.

The Slovak Republic took over the Czechoslovak Penal Code of1990 when it became an independent state in 1993. The first impor-tant re-codification was enacted in 1994 and aimed primarily toincrease police efficiency in combating crime. Amendments dealtwith the due process of law, rules for police action such as search war-rants and other procedural matters, and also with some new kinds ofcrime. In 1996–97, the government coalition of Vladimír Meeiar thenin power failed to amend the Penal Code as the president, a strongopponent of the government, twice vetoed the bill because of politi-cally motivated paragraphs outlawing ‘subversion of the republic’ and‘damaging the interests of the Republic while abroad’, which was rem-iniscent of communist-era language. The paragraphs became the objectof sharp political battles which resulted in failure to amend the PenalCode, including the paragraphs on organized crime.

The first amendment to the Penal Code was finally enacted inJanuary 1999, after parliamentary elections in 1998 led to a changein government, and introduced the concept of witness protection inthe fight against organized crime. In July 1999, the Slovak parlia-ment passed a more wide-ranging amendment to the Penal Codedesigned primarily to help the police and judiciary crack down oneconomic and organized crime. The amendment also defined newcrimes such as offering a bribe (previously only accepting a bribewas considered a crime) and possessing child pornography. TheEuropean Commission felt that there was still a need to amendthe definition of some crimes, but basically the Slovak Penal Codeafter its large re-codification in 1999 provided a solid legal base forfighting crime.30

According to Article 166 of the Polish Criminal Code of 1932, itwas a crime to be a member of an association whose main goal wasto commit crime (a ‘criminal association’). The Polish Criminal Codeof 1969 also defines criminal and armed associations. New penal leg-islation effective from September 1998, which includes the Criminal

Organized Crime 37

Code, the Code of Criminal Procedure and the Code of Execution ofPunishments, introduced several new measures to counter organizedcrime that were similar to those elsewhere in East Central Europe.Some of them became subject to major disputes among experts abouttheir compatibility with the Polish Constitution.

The promise of determined action against crime played a significantrole in the victory of the Fidesz–MPP Party in the Hungarian parlia-mentary elections of 1998. Consequently, a new bill on the ‘regula-tion of countermeasures against organized crime and connectedphenomena’, better known as the ‘mafia bill’, was tabled in theautumn of 1998. The original bill contained various passages whichwould have entailed modifications to numerous laws, including lawson the police and the handling of personal data handling, and so on.Some regulations failed to come into force due to the resistance ofthe liberal and socialist opposition, who claimed the bill would beacceptable only in a state of emergency because of its rigour.Eventually, parts of the original bill were passed as law No. LXXVin 1999, and came into force on 1 September of the same year. Thelaw dealt with numerous problems such as prostitution, people-smuggling, witness protection, undercover detectives and drugabuse. Additionally, in February 2002, Hungary adopted a substantialpackage of amendments to the Penal Code in order to align with theEU acquis and the UN Convention on Transnational Organized Crime.These amendments came into force in April 2002, and included a newdefinition of an organized criminal group; the shift of the burden ofproof in cases of forfeiture of assets; the criminalization of theobstruction of justice, of bribery, and of participation in an organizedcriminal group; stricter provisions on trafficking in persons; andan extension of the criminal liability of foreign public officials forpassive bribery.31

Security forces

The security forces were also organized on the Soviet model in the allECE countries before 1989. Although they operated within localjurisdictions, they were centrally organized and controlled by theMinistry of Interior under strong Communist Party supervision.The Czechoslovak press indicated in 1982 that 75 per cent of policeforce members were either members or candidate members of theCommunist Party.32 In the former Czechoslovakia, the National


Security Corps (Sbor národní bezpeenosti) comprised Public Security(Verejná bezpeenost) and State Security (Státní Bezpeenost), comple-mented by numerous volunteers in the Public Security AuxiliaryGuards (Pomocná stráz Verejné bezpeenosti).33 Similarly, in Poland until1990 the internal security forces of the Ministry of Internal Affairsincluded the regular police, called Citizens’ Militia (MilicjaObywatelska), the Security Service (Sluzba Bezpieczenstwa), and a largeCitizens’ Militia Voluntary Reserve (Ochotnicza Rezerwa MilicjiObywatelskiej).The Hungarian security system was also divided intothe regular National Police (Rendörség), the Security Police and auxil-iary guards. These forces, together with customs corps, border troops,prison and judicial corps, military police, voluntary armed militiaunits and state security informers, created a repressive network withstrong and effective powers of surveillance that reached every village,every workplace and every social group in society.34 After 1989, thesystem was destroyed. A radical reconstruction had to be carried outin a situation in which the police were confronting strong waves oforganized crime sweeping across the states of East Central Europe.

The first thing it was necessary to do was to depoliticize the secu-rity forces. The second problem was to make them adapt to the newconditions. This led to a high turnover of staff as many experiencedpolice officers too closely connected to old regimes were dismissed,and young inexperienced people were recruited in their place. Likemany other reforms in the transition period, practical changes tookplace slowly because of resistance from incumbent officials. Duringthe first half of the 1990s in particular, action against organized crimewas weakly coordinated, with various old and new agencies and secu-rity offices duplicating each others’ activities and internal ‘policemen’swars’ eroding the fight against crime. For example, in the CzechRepublic, the National Drug Information Service developed the sameanalytical activities as the National Anti-Drug Headquarters of theCzech Criminal Police Service.35 The most important change wasmade in 2001, when, in connection with the extensive reconstructionof criminal procedure, the previously autonomous police investiga-tion offices merged with the criminal police in a new Criminal Policeand Investigation Department conducting detection and investiga-tion of crimes. Several special services focusing on organized crimehave been included in this department: the Department for theDetection of Organized Crime, the National Anti-Drug Headquarters,

Organized Crime 39

the Financial Crime and State Protection Office and the Departmentfor Detection of Corruption and Serious Economic Crime.36

In Poland, the Bureau for Fighting Organized Crime and the Bureaufor Fighting Drug-Related Crimes both dealt with drug crime and usedthe same special legal measures and investigation methods. Therewere cases where each had its own secret agents in the same orga-nized crime group without even knowing. In February 2000, after tenyears of discussion, a decision was finally made to set up the CentralInvestigative Bureau. This new agency is composed of both the ear-lier bureaux for dealing with organized crime and drug crime. A General Inspectorate for Financial Intelligence investigating finan-cial crime was also set up in December 2000 and is currently at theearly stage of development.37

In Slovakia, similarly, special units (drugs unit, financial unit,office for the fight against organized crime) were integrated in anoffice of Criminal Police, and in April 2001 Hungary also establisheda body responsible for coordinating the fight against organized crimeunder the supervision of the Minister of the Interior. Its brief isto collect, analyse and process information about organized crime, tocoordinate investigations, and to prevent duplication between thevarious departments involved. The OECD Financial Action TaskForce finally removed Hungary from its list of non-cooperative coun-tries in 2002 after a new law containing provisions for combatingmoney laundering entered into force that allowed the HungarianFinancial Supervisory Authority to investigate money-launderingcases more efficiently.38 Furthermore, throughout East Central Europe,the fight against serious organized crime also became part of the secretservices’ programmes.

Although the structures of security organizations are stabilizing,the ‘policemen’s wars’ are still not over, and many difficulties remain.Because of lack of funding, there is insufficient momentum behindmoves to replace and update equipment, and special tasks and devel-opment programmes adopted by the police forces are being imple-mented too slowly. One of the main problems is the continually highturnover the staff. A successful campaign against organized crimeneeds educated and dedicated police officers, and they have to bewell paid. There is still a gross disproportion between the salaries ofCzech police officers and their Western colleagues. Consequently,many experienced policemen retire or enter the private sector, which


means that younger replacements have to be recruited and trained.Although the ECE states have more or less succeeded in building upspecial organized crime police units, there are still difficulties, espe-cially at lower levels in their police forces. Corruption remains one ofthe most serious problems, particularly in police departments respon-sible for granting licences or other official documents.

The judiciary

The efficiency of the judiciary is one of the key factors in combatingcrime. Unfortunately, the level of law enforcement is far from satis-factory in East Central Europe. The legal process is still too slow, andlacks cost-efficiency. The Corporate Governance Risk Survey39 foundthat 98 per cent of respondents in the Czech Republic agreed that thelegal process is not speedy enough, and only 16 per cent perceived itas cost-efficient. According to the World Bank, it takes between oneand three years to obtain a judgment. Law enforcement agencies arealso inefficient and not highly respected. A total of 88 per cent ofrespondents were convinced that there is not an effective system forreaching legal decisions, and 75 per cent thought it was not difficultto evade judgments. In Slovakia, virtually all respondents (99 percent) agreed that legal processes are too slow, and that it takes severalyears to process a judgment. The same view was held by 94 per centof respondents in Hungary, and in Poland 95 per cent of respondentsreported that the legal process was too slow, and 81 per cent thoughtthat even when decisions were taken, they were not respected andimplemented.

A major problem is that the judiciary is understaffed and the courtsare overloaded. For example, in Slovakia the average case load isaround 120–130 cases per year for every judge.40 New law graduatesusually prefer to work in the private sector, where salaries are higherand the security risks lower. The courts are not experienced in dealingwith organized crime, and often look at offences as individual crimes –thefts, burglaries, killings and so on – rather than as part of a largercriminal operation. In the Czech Republic, by the end of 2000, onlyone single offender had been sentenced under the new law coveringparticipation in a criminal group; by the end of 2002, three offendershad been sentenced and 229 persons accused.41 Reform of the judi-ciary aimed at increasing its efficiency is one of the most urgent tasksthat all the governments of East Central Europe need to tackle.

Organized Crime 41

International cooperation

The battle against organized crime cannot be won unless there isclose cooperation between the security forces throughout Europe.There is a strong link between the reshaping of domestic legislationand international collaboration, since it is often implemented onlybecause of the pressure of international agreements that have alreadybeen signed. The Pre-accession Pact on Organized Crime between themember states of the European Union and the applicant countries ofCentral and Eastern Europe was signed in Brussels on 19 May 1998.A wide range of conventions and international agreements such asthe UN Convention against Transnational Organized Crime, theEuropean Convention on the Suppression of Terrorism, the EuropeanConvention on Mutual Assistance in Criminal Matters and theEuropean Convention on Extradition have been signed, ratified orare in the process of ratification. The total harmonization will takesome time, but a positive process has been started.42

In the sphere of police cooperation, Hungary signed an agreementwith Europol in October 2001, and in April 2002, liaison officerswere seconded to Europol. From the same month, the Centre forInternational Cooperation between Police Forces has been providingsupport for police cooperation at international level and implemen-tation of the agreement with Europol.43

According to the European Commision’s 2002 progress reports onthe candidate states, remarkable progress has been achieved in policecooperation and the fight against organized crime that will permit theCzech Republic to participate in the Europol convention. In the sameyear, the agreement on collaboration in fighting serious transnationalcrime was signed by the Minister of the Interior of the Czech Republicand director of the European Police Office. A ‘Europol’ group wasestablished within the Czech Police, and charged with regular com-munication with Europol through a first liaison officer. An office forinternational police coordination exists within the Czech PolicePresidium.

Internal affairs ministers from Poland and Belgium and the chief ofEuropol signed an association agreement in October 2001.44 Poland’sCentral Investigation Bureau is responsible for the exchange of infor-mation and cooperation with foreign law enforcement agencies aswell as with Interpol and Europol. Slovakia signed an agreement with


Europol in June 2003. The coordinating National Office of Europolwas established in Bratislava in same year.45

These changes in the legal and security systems of the ECE countriesestablished a framework for the detection, investigation and prosecu-tion of organized crime that is more or less comparable with the legis-lation of the majority of other European countries, and therebycreated the conditions for international cooperation in the field ofjustice and home affairs. The ECE states will also be able to meetEuropean Union standards involving central national agencies dealingwith organized crime. They are continuing to develop police coopera-tion with both neighbouring countries and old EU member states. Animportant framework for international cooperation has also been builtup within Council of Europe/EU projects Octopus and Octopus II.

Since 1999, ministers of the interior from the Czech Republic,Hungary, Poland, Austria and the Slovak Republic have been meetingregularly to coordinate activities in the sphere of migration, borderdefence and organized crime. Regional expert groups have been cre-ated.46 All the EU member and candidate states agreed that judicialcooperation must continue in order to ensure the implementation ofCommunity instruments in the area of judicial cooperation in civilmatters, most particularly the mutual recognition and enforcementof judicial decisions.

Although visible progress has been made, effective cooperationacross national borders in the areas of law enforcement and the judi-ciary is still developing very slowly in comparison with the explosionof organized crime that has been witnessed, aided by the many leg-islative and technical obstacles in East Central Europe. The weaknessof the links between police forces that can be observed in the Westbecomes even more pronounced when they collaborate with the secu-rity forces of former communist countries, which are still frequentlysuspected of lacking respect for the rule of law. Unless this prejudice isovercome, and unless the police of the West and East unite their effortsto combat organized crime, the criminals will continue to win.

Conclusions

Organized crime represents a serious threat for the countries of EastCentral Europe. Criminal groups with a high degree of organization,

Organized Crime 43

and frequently with strong international links, are steadily expandingthe scope of their operations there. Many of these groups havealready passed through the stage of gaining a foothold and stabiliz-ing their position in the underworld, and also in the economic andsocial structures, of the ECE states, and now aim for more elevatedforms of activity, including efforts to dominate these structures. Thisdoes not bode well for the future. Far from being simply a domesticissue, the expansion of organized crime represents a direct threat tothe security and stability of the EU’s new member states and, in itsinternational dimension, for the whole of Europe.

All post-communist countries joining the EU will probably be ableto fulfil their obligations to the Union when it comes to restructur-ing their legal systems. The problem is that they still lack sufficientpower to make the new legal systems work effectively in practice. Oneof the weakest spots of the ECE countries’ resistance to organizedcriminal activities (apart from an unstable economic and social situa-tion, marked by widespread corruption and weakening of ethicalstandards) is their limited ability to extricate themselves from nar-rowly regional approaches and to grasp the international dimensionof the problem. Frequently repeated political proclamations about theneed to preserve ‘state sovereignty’ are a historical anachronism in asituation when the significance of state borders is in fact being under-mined. In the EU–ECE context, it is necessary to build ‘sieves’ insteadof erecting impenetrable barriers. In other words, security systemsmust be created that are capable of letting through all the positiveevents the world brings along while at the same trapping and elimi-nating negative phenomena. This is not possible without close coop-eration between the security authorities of all the countries involved.However, as has been shown, this cooperation is still hampered by awhole series of legislative and operational problems.

Notes

1 Imported drugs began to appear sporadically on Czechoslovak andHungarian territory in more considerable amounts in the second half ofthe 1980s because the communist regimes’ systems of control were beingeroded, and more use was made of the central and northern wings of the‘Balkan drug route’ from Southwest Asia and the Balkans to WesternEurope. The central wing includes Turkey, Bulgaria, Yugoslavia, Austria,the Czech Republic and Germany, while the northern wing runs through


Turkey, Bulgaria, Romania, Czechoslovakia (that is, Slovakia and theCzech Republic) and Germany.

2 M. Nozina, Svft drog v Eechách (Prague: Koniasch Latin Press, 1997),pp. 99–100.

3 Ibid., p. 326.4 M. Nozina, ‘Czech Republic: An intersection of International Crime’,

Perspectives, 12 (1999), 57–64.5 See M. Nozina, Mezinárodní organizovany zloein v Eeské republice (Prague:

Themis, 2003).6 Nozina, ‘An intersection of International Crime’, p. 59.7 Ibid., p. 60.8 Komenda Glówna Policji, Report statystyczny, http://www.kgp.gov.pl.9 Ministry of the Interior of the Czech Republic, http://www.mvcr.cz/

statistiky/krim.stat/2000; Interpol, International Crime Statistics, http://www.interpol.int/Public/Statistics/ICS/2002.pdf.

10 A. Michálek, ‘Vyvoj a regionálna distribúcia kriminality na Slovensku’,Kriminalistika, 33/4 (2000), 1–7, http://www.mvcr.cz/casopisy/kriminalistika/2000/00_04/michalek.html).

11 Interpol, International Crime Statistics, http://www.interpol.int/Public/Statistics/ICS/downloadList.asp.

12 Ministry of the Interior of the Czech Republic, Zpráva o situaci v oblastiverejného porádku a vnitrní bezpeenosti na území Eeské republiky v roce 1999,http://www.mvcr.cz/dokumenty/bezp_si99/priloha1.html.

13 Interpol, International Crime Statistics.14 See Nozina, Mezinárodní organizovany zloein v Eeské republice.15 See ibid.; M. Scheinost, ‘Názory pracovníku orgánu einnych v trestním

rízení a dalsích odborníku na organizovanou trestnou einnost páchanouobcany CR’, Kriminalistika, 32/2 (1999), http://www.mvcr.cz/casopisy/kriminalistika/1999/9902/scheinos.htm; M. Cejp, ‘Trendy ve vyvojinfkterych ukazatelu o strukture skupin a charakteru einností organizo-vaného zloeinu’, Kriminalistika, 33/4 (2000), http://www.mvcr.cz/casopisy/ kriminalistika/2000/00_04/cejp.html; M. Cejp, ‘Vysledky osméexpertizy o základních charakteristikách organizovaného zloeinu’,Kriminalistika, 34/3 (2001), http://www.mvcr.cz/casopisy/kriminalis-tika/2001/01_03/ cejp.html; European Committee on Crime Problems(CDPC), Report on the Organized Crime situation in Council of Europe MemberStates – 1999, Strasbourg, December 2000, pp. 16–17, http://www.coe.int/T/E/Legal_affairs/Legal_co_operation/Combating_economic_crime_Organized_crime/Documents/Report1999E.pdf; Ministry of theInterior of the Czech Republic, Security Policy Section, Information onOrganized Crime Status in the Czech Republic in 2000, 2. Organized Crime inthe Czech Republic, http://www.mvcr.cz/english.html.

16 A. Duleba, ‘Criminality, organized crime and corruption in the SlovakRepublic: Development trends and governmental policies’, PROGRESProject, University of Groningen, Netherlands – Theme 4: Security inEurope: (New) Threats on the Agenda, Kiev, Ukraine, 24–25 March 2000(unpublished paper).

Organized Crime 45

17 Slovensko: Základné problémy na úseku bezpeenosti, stav v roku 2001, momen-tálna situácia, http://www.minv.sk/dokum/bezpsit2001PZ.html; EuropeanCommittee on Crime Problems (CDPC), Report on the Organized CrimeSituation in Council of Europe Member States, pp. 16–17.

18 Ibid.19 See Komenda Glówna Policji, Zwalczanie przestjpczogci zorganizowanej i

narkotykowej w Polsce 2002 r. (Warsaw: 2003), p. 2.20 European Committee on Crime Problems (CDPC), Report on the Organized

Crime Situation in Council of Europe Member States, pp. 16–17.21 See ‘2000 EU Organised Crime Situation Report’, The Hague, 31 October

2001, File number: 2530-68rev3, pp. 4–6.22 Corruption and Organized Crime in States in Transition, Octopus project

1996–98 (joint project between the Commission of the EuropeanCommunities and the Council of Europe), http://www.coe.int/T/E/Legal_affair (Legal_co-operation/Combating_economic_crime/).

23 Corporate Government Risk Surveys measure and compare the corporategovernance risk in the countries of Central Europe. The opinion surveyswere conducted among 200 managers of foreign-owned companies in theCzech Republic, Hungary, Poland and Slovakia. Merit Research WorkingPapers, http://www.merit-research.cz/public.htm.

24 M. Nozina, ‘Das Netzwerk des internationalen organisierten Verbrechensin der Tschechischen Republik’, in R.C. Meier-Walser, G. Hirscher, K. Langeand E. Palumbo (eds), Organisierte Kriminalität: Bestandsaufnahme, transna-tionale Dimension, Wege der Bekämpfung (Munich: Hanns-Seidel-Stiftung eV,1999), p. 228.

25 Ibid., p. 226.26 See Ministry of the Interior of the Czech Republic, Actualized Concept of

Fight Against Organized Crime, Prague, November 2000.27 Ibid.28 According to the Transparency International corruption investigation pro-

gramme, Hungary gained 40th position (index 4.8), the Czech Republic54th position (index 3.9), Slovakia 59th position (index 3.7) and Poland64th position (index 3.6) among the 130 countries of the world. Lidovénoviny, Prague, 8 October 2003. The World Bank reports that 70 per centof Slovak firms admitted paying bribes, which on average consumed3.5 per cent of their annual revenues. See Corporate Governance Risk Surveyin Central Europe: Slovak Republic, http://merit-research.cz/files/esslk.pdf.

29 See Octopus (1998) 14 – Slovakia. Final Recommendations and Guidelinesfor action addressed to the government of Slovakia, Report prepared byProfessor Dr C. Fijnaut, Strasbourg, 13 March 1998 (public as fromFebruary 1999, http://www.coe.int/T/E/Legal_affairs(Legal_co-operation/Combating_economic_crime/).

30 Duleba, Criminality, organized crime and corruption in the Slovak Republic:development trends and governmental policies.

31 European Commission, ‘Regular Report on Hungary’s progress towardsaccession to the European Union, November 2002’, Chapter 24: cooperation


in the field of justice and home affairs, COM(2002) 700 final – SEC(2002)1404, 9 October 2002.

32 1Up Info – Country Study & Country Guide – Czechoslovakia, http://www.1upinfo.com/country-guide-study/czechoslovakia/czechoslovakia141.html.

33 There were 27,000 members organized in 3372 units in Slovakia alone inthe mid-1980s.

34 1Up Info – Country Study & Country Guide, http://www.1upinfo.com/country-guide-study/.

35 Nozina, Svft drog v Eechách, pp. 285–6.36 The Czech Police web page, http://www.mvcr.cz/policie/index.html.37 Komenda Glówna Policji, http://www.kgp.gov.pl.38 Activities of the European Union. Summaries of Legislation. Hungary –

Adoption of the Community Acquis: http://europa.eu.int/scadplus/leg/en/lvb/e22103.htm.

39 Corporate Government Risk Survey.40 Duleba, Criminality, organized crime and corruption in the Slovak Republic.41 Nozina, Mezinárodní organizovany zloein v Eeské republice.42 See: Justice and home affairs in the EU enlargement process:

http://europa.eu.int/comm/justice_home/doc_centre/enlargement/doc_enlarge_intro_en.htm.

43 Activities of the European Union. Summaries of Legislation. Hungary –Adoption of the Community Acquis: http://europa.eu.int/scadplus/leg/en/lvb/e22103.htm.

44 The Warsaw Voice, 14 October 2001, No. 41 (677): http://www.warsawvoice.pl/old/v677/News03.html.

45 Bratislava ba.mesto.sk. See http://mesto.sk/prispevky_velke/bratislava/slovenskopodpisalo1055499960.phtml.

46 Nozina, Mezinárodní organizovany zloein v Eeské republice.

Organized Crime 47

48

3Extending the Area of Freedom,Security and Justice: the Crucial Case of PolandIwona Piórko and Monika Sie Dhian Ho1

Introduction

For Poland, the largest new member of the European Union, 2004 wasthe beginning of a crucial period for its future development. Accessionpreparations had been intensive, but significant progress still had to bemade on implementing and enforcing the EU acquis in full. This chap-ter sets forth why the EU acquis in the field of justice and home affairs( JHA) – including the Schengen acquis as integrated into the EU frame-work – needs special attention in the early post-enlargement phase,and why Poland is an exceptionally important case in this respect. Thechapter’s objective is to assess the costs and benefits of EU membershipfor Poland in the field of JHA, and to discuss the remaining challenges,as well as measures that could facilitate Poland’s further integrationinto the EU’s JHA/Schengen cooperation.

Although accession has taken place, big challenges still remain.The Poles are not yet enjoying all the privileges of EU membership,and discussion about the consequences of accession is likely to inten-sify. A cost–benefit analysis of EU membership in the field of JHA isimportant for informing this debate in at least three ways. First, anoverall picture of the short- as well as long-term effects of member-ship is needed, since many costs were already felt before accession,while important benefits will only materialize afterwards.2 Second,there is a widespread consensus that whereas integrating Poland into

the EU has positive effects at the macro-level, costs will be unevenlydistributed. An analysis of the distributional effects of EU member-ship in the field of JHA may contribute to sensitivity among decisionmakers about where the challenges will be most demanding.3 Third,awareness of the challenges and opportunities of Polish membershipin several sub-policy areas of JHA, and of their timing as well astheir distribution, could allow Polish and EU decision makers tointroduce supporting and compensating measures and/or to adjusttheir policies.

The special character of JHA in the context of EU enlargement

As justice and home affairs cooperation was not brought into theEU framework until the Treaty of Maastricht, the requirementsin this field took the then candidate countries more or less by sur-prise. Furthermore, the massive changes introduced by the Treatyof Amsterdam caused considerable uncertainty regarding accessioncriteria. The Treaty of Amsterdam enshrined the maintenance anddevelopment of an ‘area of freedom, security and justice’ (AFSJ) as anew, central treaty objective of the EU, that is, at the same level asfor instance the Economic and Monetary Union. The EU is nowcommitted to developing policies in the fields of visa, asylum, immi-gration and other policies related to free movement of persons, andto developing common action in the field of police cooperationand judicial cooperation in criminal matters. Moreover, the Treaty ofAmsterdam imported a substantial body of measures that had beendeveloped outside the Union into the EU framework: the 1985Schengen Agreement and associated implementing acts (togethercalled ‘the Schengen acquis’). The objective of the SchengenAgreement is the abolition of internal border controls among itsmember states. To compensate for the loss of internal border con-trols, a set of measures has been agreed among the Schengen memberstates in the field of external border controls, visa, asylum, immigra-tion, police, customs and judicial cooperation, data exchange (theSchengen Information System, SIS) and data protection. All thesemeasures are now part of the EU acquis, allowing for free movementof persons within the Union, with the exception of the UnitedKingdom and Ireland. These countries had to be given special

The Case of Poland 49

‘flexible’ arrangements in order to gain their consent to the intro-duction of Schengen into the EU framework.

In the accession negotiations the EU took the position that candi-date countries had to accept the entire JHA acquis, including theSchengen acquis as integrated into the EU framework. Poland statedthat it was prepared to accept the entire acquis, expressing reserva-tions about accession to some JHA conventions that had not beenratified by all member states themselves. No transition periods werenegotiated. This means that in principle all JHA acquis had to beimplemented upon accession. This, however, does not apply to allSchengen measures. Although the Schengen acquis has been inte-grated into the EU system, one important rule of the SchengenAgreement has remained intact. This concerns the rule that a newmember has to go through a period of close monitoring of imple-mentation of Schengen obligations (the Schengen evaluationprocess) after its accession to Schengen (now the EU). Moreover, anew member has to await a separate and unanimous decision of theSchengen Executive Committee (now the Council of the EuropeanUnion) before it can fully participate in the Schengen acquis andmost notably before internal border controls can be lifted. ThusAustria, Italy, Greece and the Nordic countries had to wait severalyears after their accession to Schengen before this decision was taken.Analogously, internal border controls have not been lifted onPoland’s accession to the EU, and checks at the German–Polish fron-tier continue to take place. Because internal border controls remainintact, the entire Schengen acquis did not have to be implementedupon accession either. The Council of the EU has published an‘Information note’ on Schengen and enlargement, making a distinc-tion between the requirements that had to be implemented uponaccession to the EU and those that are to be implemented on the lift-ing of internal border controls at the latest.4 Moreover, the Councilhas announced that the implementation of Schengen does not con-tain a predetermined timetable for the abolition of checks on inter-nal borders after accession. In the absence of target dates for Poland’sfull participation in Schengen, there are widely divergent expecta-tions of what will happen.5 The implication of this two-stage pro-cedure is that not all costs and benefits of EU membership in thefield of JHA will materialize upon accession, but at a later, not yetdefinable, stage.


The special case of Polish accession in the field of JHA

There are several reasons why Poland’s accession to the EU in thefield of justice and home affairs is exceptionally important. First,Polish EU membership means that its borders with Russia (theKaliningrad enclave), Belarus and Ukraine become part of the EU’sexternal border. At 1143 km in length, this constitutes the secondlongest land border guarded by a single member state.6 If any neigh-bouring new member states do not enter the Schengen zone at thesame time as Poland, then the length of the external border it has tocontrol will be even longer. For example, Poland’s border with Slovakiais 533 km in length.

Second, the transformation of the political system at the end of the1980s brought a profound change in the migration situation in thecountries of Central and Eastern Europe, including Poland. Until 1989Poland had been a typical emigration country. Between 1971 and 1989 over 2 million people permanently left their homeland.7 At thesame time immigration was ‘marginal and exotic’8 and the number offoreigners visiting Poland was limited to only several million personsper year. In this respect, the beginning of the 1990s constituted agenuine breakthrough. The democratic reform led to the opening ofborders in the region and to the removal of many entry restrictions forvisitors. The number of foreigners entering Polish territory rose toreach 80 million in 1996.9 In the course of a decade not only the tem-porary presence of foreign visitors but also permanent immigrationhad become a characteristic feature of the new social reality.

Additionally, some illegal phenomena were linked to the new situ-ation in the migration field. Between 1990 and 1997, a turning pointin Polish migration policy when the Act on Aliens was adopted, asmany as 120,000 illegal immigrants were apprehended in Poland.10

Initially they came from Bulgaria, Romania, Russia and Ukraine, andat a later stage from Asian and African countries. Poland turned intoan immigration and transit country and the Polish authorities weresuddenly confronted with developments that had previously beenunknown.

Third, whereas border and immigration controls do not resultexclusively from EU accession, the introduction of the EU visa regimeis very much linked with this process. The abolition of internal bordercontrols within the Schengen context has made it necessary to


harmonize the visa policies of the member states. This harmoniza-tion primarily involves the lists of countries whose nationals needentry visas (the negative list) and whose nationals do not need them(the positive list). Three of Poland’s neighbouring countries, namelyBelarus, Russia and Ukraine, are currently on the negative list.11

Opportunities for Poland

Poland’s accession to the EU will significantly contribute to theachievement of Polish justice and home affairs objectives, such as freemovement of persons, better access to justice and enhanced internalsecurity. It also indirectly supports Polish economic objectives, forexample creating a better climate for investment by reducing cor-ruption. Five processes linked with EU accession will further thesePolish policy objectives. These are: (1) creating and strengthening thelegal framework and sound institutions; (2) staffing, training andequipment; (3) improvement of inter-institutional cooperation;(4) coherent strategic policy making; and (5) integrating Poland intothe AFSJ, EU institutions, cooperation structures and monitoring sys-tems. The first three processes may in part have taken place inde-pendently of EU accession, for example as part of the transformationprocess or adjustments to globalization. It is important to realize,however, that EU accession has in many cases put JHA issues firmlyon the Polish policy agenda, whereas globalization and economicliberalization initially led to a reduction in Poland’s internal secu-rity.12 All five accession-linked processes that contributed to theachievement of Polish objectives will be dealt with below.

First, the need to fulfil EU requirements as well as the EU’s monitor-ing of progress furthered the creation, and strengthening, of the legalframework and of sound, efficient institutions. The introductionand consolidation of uniform norms and rules reduced uncertaintyand arbitrary decision making. Such developments can be observedin all JHA sub-policy areas. The early foundations of a modern bordercontrol system were laid shortly after the change of political regimeby two laws which, among other measures, replaced the BorderProtection Army by the newly created Border Guard.13 However, far-reaching changes were introduced by the 2001 amendments to theseacts which were inspired by the accession process.14 These changesinvolved broadening the competencies of the Border Guard (for


example, so that it could operate throughout the country) andmaking it more effective in border protection, border traffic controland fighting border-related crime.15 They also involved the adoptionof important EU requirements, such as uniform level of checks atexternal borders carried out in accordance with uniform principles,and an internal control system. Both reduce arbitrary decision makingby border guards.

In the fields of visas, migration and asylum, the accession processalso supports institution building. In order to implement the EU visaregime, Poland’s network of diplomatic missions and consular officesis being strengthened. The Act on Aliens adopted in 1997 andamended in 2001 has introduced a legal framework for the area ofimmigration and asylum and created the Office for Repatriation andAliens, which is the central agency with responsibility for aliens.16

This legal framework, combined with the centralization of decisionmaking in a single government department, is contributing to thedevelopment of a more coherent and comprehensive migrationpolicy, as well as to fair and faster procedures for dealing with asylumapplications. EU monitoring has played a substantial role in placingand keeping immigration and asylum policies high on the Polishagenda, such as in 2001, when the Polish government was seriouslyconsidering dismantling the then six-months-old Office forRepatriation and Aliens as part of a broader restructuring of thePolish administrative system.17

The fight against organized crime, drugs, fraud and corruption,and the protection of data, also benefit from accession-driven insti-tution building. Examples of this are the creation of the NationalCentre for Criminal Information,18 the Inspectorate General forFinancial Information,19 the Inspectorate General for Personal DataProtection20 and the Council for the Prevention of Drug Addiction.21

More generally, EU standards support the development of an account-able and reliable police organization and customs authorities. EUinsistence on anti-corruption measures has encouraged Polish anti-corruption policies, such as the introduction of the liability of legalpersons,22 and codes of ethics and strong internal control systems.Appropriate sanctions against corruption in the judiciary, for exam-ple removal of the unlimited penal immunity for magistrates, mighthelp restore a feeling of justice in society at large. The same appliesto measures to make the Public Prosecutor’s Office fully independent


of government. EU accession requirements have also supportedrespect for human rights and fundamental freedoms and the devel-opment of an independent, reliable and efficient judiciary. The latterinvolves, among other things, a reduction in the number of casespending and of the duration of court proceedings (for example, byintroducing simpler procedures), and better access to justice andenforcement of judgments.

The second advantage of EU accession lies in the improvement ofstaffing, training and equipment, which makes a substantial contri-bution to the achievement of Polish policy objectives. As a result ofthe deployment of professional border guards, all persons crossingthe external borders are checked systematically, and border surveil-lance between border-crossing points has become more effective.Recruitment of qualified law-enforcement personnel makes a differ-ence in the fight against organized crime, drugs, fraud, corruptionand terrorism, and has helped to diminish delays in courts. All thesepolicy objectives are also served by staff training in operational skills,knowledge of legislation and languages, and by the development ofinfrastructure and the acquisition of equipment such as computersystems that are needed for EU membership.

The third beneficial effect of EU accession concerns improvementsin cooperation and the exchange of information between authori-ties. EU accession requires, for instance, bilateral and internationalborder cooperation, cooperation between authorities controllingeach side of the border, intensive consular cooperation, collaborationbetween customs authorities and the Border Guard, and cooperationbetween the police and prosecuting and judicial bodies. By way ofexample, cooperation between the Polish Border Guard and Germany’sFederal Border Guard has been particularly effective.23

The fourth beneficial effect of EU accession is that it encouragescoherent strategic policy making. Policies in many sub-areas of JHAneeded to start from scratch after the fall of communism. EU accessionpreparations have led to the development of strategic policies such asthe Strategy of Integrated Border Management, the Anti-CorruptionStrategy, the Drugs Strategy, and recent work on migration policy, andhave contributed to their coherence and comprehensiveness, forexample through the addition of measures on family reunification inthe 2001 amendment of the Act on Aliens. Policies in the field ofmigration and integration are all the more necessary because EU


accession will make Poland more attractive for immigrants. Wherethe Polish labour market and social security system might need con-siderable foreign labour in the future, increased immigration can beconsidered a benefit. Moreover, the opening up of Polish society tonew cultural influences may also bring advantages.24 However, inorder to ensure these benefits from immigration, a coherent strategicimmigration and integration policy is essential.

Last but not least, enormous opportunities result from Poland’sintegration into the AFSJ, EU institutions, structures of cooperation,and permanent monitoring systems. As EU citizens, the Polish shouldbenefit from increased internal security, better access to justice and,once the Council decision to lift internal border controls has beentaken, from unhindered travel across borders. Moreover, throughaccession to the EU, Poland has acquired full decision-making rights.This also applies to the development or reform of the Schengen acquisas integrated into the EU framework. Poland is thus able to launchinitiatives to deepen cooperation, for example on harmonizing bordercontrol standards or promoting burden sharing or a structural fundin the field of JHA, and to make proposals for reform of existing poli-cies, such as the visa regime or policies vis-à-vis the EU’s Easternneighbours. If any other initiatives do not appear to be in Poland’sinterest, its government can try to influence fellow member statesnot to adopt them, or in the last resort it can block them.25 EU mem-bership may also strengthen Poland’s position as a regional actor asits Eastern neighbours will be aware of Poland’s ability to influenceJHA policies.

Furthermore, accession has made Poland part of the EU’s cooperationstructures. Exchange of information and experience, the use of com-mon methods and tools, participation in institutions such as Europoland Eurojust, and becoming a member of networks such as theEuropean Judicial Network are likely to support the Polish fight againstorganized crime, drugs, terrorism, fraud and corruption. Access to theinformation held in the Schengen Information System, which Polandwill obtain only after SIS II has been developed and the Council hasdecided to lift internal border controls, deserves special mention inthis regard. Inclusion in the permanent monitoring systems of theEU will foster commitment to the objectives of the AFSJ. Finally,accession has provided Poland with access to funds reserved for EUmembers.


Challenges for Poland

Compliance with the requirements of EU membership in the fieldof justice and home affairs also entails substantial financial, socio-economic and socio-political challenges for Poland. When analysingthese challenges it is again important to keep in mind that not all ofthem result exclusively from EU accession. For example, the judicialreform required by the EU would have had to be undertaken anywayas part of the autonomous Polish transformation process. However,some measures are very closely linked to EU membership, such as theintroduction of the EU visa regime and the highly contested imple-mentation of some conventions, such as the 1995 agreement on illicittraffic by sea.

The financial challenge of EU membership for Poland is consider-able in the field of JHA as a consequence of the high implementationcosts of the JHA acquis. A striking example of this is fulfilling EUrequirements in the field of border controls, which entails big invest-ments in staff and training. It is estimated that a modern Polishborder control system requires 18,000 officers.26 Bringing the BorderGuard up to full strength means hiring new officers, replacing con-scripts by professionals and training all personnel. Moreover, massiveinvestment is needed in infrastructure, such as border stations andequipment, such as that required for observation and transport and,most importantly, communication and information technology. Thetotal cost of border controls for the 2003–05 period has been esti-mated at around 257 million euros.27 EU financial assistance in thisfield was initially expected to amount to 94 million euros. Given theimpressive gap between these two figures and Poland’s very tightbudgetary situation, extra funds for external border controls werepart of the final demands that Poland put forward at the end of theaccession negotiations at the European Council in Copenhagen inDecember 2002. The perceived self-interest of the incumbent mem-ber states in strengthening the future external border of the EU mayhave contributed to their eventual willingness to grant an additional108 million euros for controlling Poland’s eastern border. However,despite this grant, funding will remain a serious Polish concern.

Visa policy is another sphere where implementing the EU systempresents Poland with a substantial financial challenge. The introduc-tion of visa requirements for citizens of countries with which Poland


previously had a visa-free regime is likely to result in a large increasein the number of visas issued. It has been estimated that it will riseto 3.5 million annually (from approximately 230,000).28 To deal withthis increase, large investments are being made to strengthen Polishconsular offices in both organizational and logistical terms, and toprovide them with the necessary staff and equipment, including visa-processing information technology. Further substantial budgetaryallocations will be needed to implement the EU acquis in other JHAareas. These involve funds for the asylum field, where data transmis-sion equipment is needed for the fingerprint database Eurodac, andreception centres for asylum-seekers. Similarly, police and judicialcooperation requires the national interface for SIS II as well as thetraining of magistrates, judges and prosecutors.

Apart from financial problems, Poland also faces socio-economicchallenges. These result mainly from the obligation to introducevisas for citizens of 13 countries whose citizens were previously visa-free. The most difficult cases are Ukraine, Russia and Belarus, wherePoland also had to terminate a 1985 agreement with the then SovietUnion on local simplified border crossings. During the three firstmonths after the EU visa regime was introduced, the Polish consulatesin Russia, Ukraine and Belarus issued nearly 280,000 visas: almost140,000 for Ukrainian citizens, 80,000 for Belarusians, and 60,000 forRussians.29

The application of these EU measures has a social price. Terminatingthe agreement on local simplified border crossings means, forinstance, that visiting relatives across the border becomes more com-plicated.30 There will also be economic effects resulting from theinevitable decrease in trade with eastern neighbouring countries. Ata macro-level these are expected to be limited as the Eastern marketis relatively small in scale compared to the EU market, which is anatural field of expansion for Polish exports.31 Registered Polish tradewith eastern neighbours – which is the greater part – is unlikely to beaffected by modern border management and clear and simple visa pro-cedures. This expectation is supported by the Slovak case. Althoughthe Slovak introduction of visas for Ukrainians resulted in a significantdrop in border crossings,32 it was followed by a quite impressive growthof freight trains crossing the border.33

However, it is predicted that non-registered trade will be affectedsignificantly, as the Slovak example also indicates. Following the


introduction of the visa regime, a relatively large drop in the numberof border crossings of buses and cars (the means of transportationmost commonly used by petty traders) was noted.34 Economistspoint out, though, that the importance of unregistered trade for thePolish economy has anyway decreased over the last years. Petty tradeis seen as a temporary phenomenon, as it is largely based on differ-ences in product prices on the Polish and more eastern markets.Moreover, part of this trade involves the evasion of duties on alcoholand cigarettes, which makes it detrimental for the Polish budget.35

Nevertheless, specific regions and sectors will suffer seriously fromthe drying up of petty trade. This concerns the underdeveloped east-ern voivodships (counties) and sectors such as the small-scale textileindustry in Lódx that are highly dependent on unregistered tradewith eastern neighbours. Accession-related benefits for these regions,36

such as the receipt of structural funds, investment in infrastructureand the employment of local people for the purpose of strengthen-ing border controls, are unlikely to compensate for the loss ofemployment and sources of income in these regions. That said, theshift from Eastern to Western export markets as well as the decline ofpetty trade are trends that cannot be attributed entirely to EU acces-sion since painful regional adjustments to globalization were takingplace anyway.

Finally, EU accession will have a socio-political price. This concerns,first, the loss of autonomy in policy making that EU membershipimplies. The obligation to adopt and implement the entire acquismeans that Poland is confined in setting its own policy priorities. Forexample, it is forced to focus on security-related matters and tofinance high investment in JHA instead of in other sectors. Anexample of this unbalanced pressure is the EU’s preoccupation withfortifying the eastern border, while far less attention is paid to thereform of the judiciary.37

The EU visa regime is another example where the political impli-cations of the loss in policy autonomy are felt. The introduction ofthe visa regime is likely to disturb relations and historical ties withneighbouring countries, as well as with the Polish minorities that livethere. The introduction of visa requirements is getting a frosty recep-tion from both governments and citizens in Poland’s neighbouringcountries. For example, it prompted President Kuchma of Ukraine tocomment that the EU is replacing the iron curtain with a paper one,


or, in the words of President Putin, a ‘new Schengen wall’.38 Russiaand Belarus have, as feared, reciprocated and introduced visas forPoles, while Ukraine has accepted the Polish proposal whereby novisas are required for Polish citizens in return for visas being issuedto Ukrainian citizens free of charge.

Furthermore, in some cases Poland’s ability to negotiate visa-freetravel for Polish citizens has been weakened as Poland was obliged toabolish visa obligations for certain countries as part of the EU visaregime. EU citizens could travel without visas to countries such asAustralia and Canada, while Polish citizens could not. In consequenceof the obligation to adopt the EU visa regime, Poland can no longeruse visa-free travel to Poland as a negotiation tool to get visa-freetravel to these countries for Polish citizens in exchange. However, intheory Poland will now be able to make use of the so-called solidarityclause to start discussions in the Council in cases where there is animbalance between EU visa regulations and the visa policy of somethird countries vis-à-vis EU member states.39 Indeed, the Commissionis now examining the visa relations of EU members with third coun-tries and in that context it will look at the visa situation of newmember states in relation to the USA, Australia and Canada.40

Apart from the loss of policy autonomy, there will be direct socialchallenges in the field of JHA resulting from accession. Immigrationpressure is likely to increase, and the transformation of Poland froma transit to a destination country will continue. The same holds truefor asylum-seekers, with refugees increasingly deciding to stay inPoland at least until a decision on their status has been made.41

Moreover, as a result of the implementation of the Dublin Conventionon the State Responsible for the Examination of an Asylum Claim,Poland will most probably have to deal with an even higher numberof asylum-seekers. All this makes proper immigration, asylum andintegration policies a necessity, to deal for example with the largeVietnamese community and the growing number of asylum-seekersfrom Chechnya.

Conclusion

Weighing opportunities and challenges against one another, we canconclude that difficult times are ahead for Poland in the sphere ofjustice and home affairs. One reason is the high cost of fulfilling EU


requirements, especially in certain regions and sectors. Another reasonis the timing of costs and benefits. The majority of the costs have tobe borne ‘in advance’. This holds true for the substantial financialcosts of implementing the JHA acquis, as well as for the socio-economic and political costs. However, whereas some benefits arealready identifiable, increasing security, fighting corruption andreforming the judiciary are long-term processes, the full benefits ofwhich will not be felt today or tomorrow. Moreover, very tangiblebenefits of EU membership, such as border-free travel and access tothe data of the Schengen Information System, will only materializewhen the Council considers Poland ready to fully participate in theSchengen cooperation.

Clearly, the costs and benefits of accession, and their timing, dependstrongly on policies pursued by the EU, Poland and other states. Therealization of many benefits for Poland is directly connected to theEU decision to abolish checks on internal borders. The Polish com-mitment to implementing the Schengen acquis in full, as well as itscapacity to do so, will obviously be of great influence too. The com-mitment and capacity of Poland’s neighbouring countries, such asSlovakia, will also play an important role. If the new member statesare not ready at the same time, some may have to wait for others, ortemporary external borders will have to be introduced.

Substantial financial assistance from the EU will have to continueto contribute to the strengthening of administrative capacity inPoland. Extra money for border controls was negotiated at theCopenhagen European Council in December 2002, and the post-accession Transition facility and Schengen facility announced in theAccession Treaty will run until the end of 2006.42 With respect to the EU visa policy, Poland is trying to alleviate the social, economicand political costs discussed above by offering visas free of charge toUkrainian citizens in exchange for the continuation of visa-free accessto Ukraine for Polish citizens. These measures – although under-standable from a political perspective – will, however, only providetemporary relief since permanent exemptions from the Schengenacquis are not an option for the new member states.

The outcome of the Intergovernmental Conference on a constitu-tional treaty for the European Union and the development of futurepolicies will also influence the effects of EU accession for Poland.The principle of solidarity, with fair sharing of responsibility and


financial burdens, a specific evaluation mechanism for the AFSJ, and anarticle on border controls, are examples of key provisions in the draftconstitution (see Chapter 7) that greatly influence the costs and bene-fits of Poland’s integration into the AFSJ. Poland is also taking on amore active role in influencing the development of EU policies. It hasput itself forward very strongly as the seat of the new European agencyfor the management of the operational cooperation at external borders.The determination of minimum common standards for arrangementsfor local border traffic is another example where Poland can influencethe development of the EU framework so that the negative impact ofEU visa policies on social and cultural exchanges with neighbouringcountries, and on economic development in border regions, will beweakened. Clearly, to make a success of enlargement, the EU will needto approach institutional reform and the development of the Schengenacquis from the perspective of an AFSJ of 25 member states.

Notes

1 This chapter is based on I. Piórko’s Ph.D. thesis, forthcoming at the SussexEuropean Institute, University of Sussex, Brighton, UK, and research con-ducted by I. Piórko and M. Sie Dhian Ho in the context of the NatolinEuropean Centre project, Costs and Benefits of Poland’s Membership in theEuropean Union (Warsaw: Natolin European Centre, 2003).

2 H. Tang, ‘Overview’, in H. Tang (ed.), Winners and Losers of EU Integration.Policy Issues for Central and Eastern Europe (Washington: The InternationalBank for Reconstruction and Development/The World Bank, 2000),pp. 1–12.

3 A. Inotai, ‘The Czech Republic, Hungary, Poland, the Slovak Republic andSlovenia’, in Tang, Winners and Losers of EU Integration, p. 19.

4 Council of the European Union, ‘Information Note, Schengen andEnlargement’, Chapter 24: Cooperation in the Fields of Justice and HomeAffairs, 10876/01 Limite Elarg 172 (2001).

5 For instance, Józef Oleksy, Minister of Interior and Administration, hasstated repeatedly that Poland aims to enter the Schengen zone two yearsafter accession (Polish Press Agency, 12 February 2004), whereas UdoHansen, President of German Grenzschutzpräsidium Ost, has estimatedthat achieving full Schengen participation will take the candidates atleast ten years (statement at the CEPS conference ‘New European Bordersand Security Cooperation: Promoting Trust in an enlarged EuropeanUnion’, Brussels, 6–7 July 2001).

6 The length of Poland’s border with Russia is 210 km, with Belarus 407 kmand with Ukraine 526 km. The longest land border guarded by a singlemember state is Finland’s 1324 km border with Russia.


7 P. Stachanczyk, Cudzoziemcy (Warsaw: Wydawnictwo Zrzeszenia PrawnikówPolskich, 1998), p. 9.

8 S. Lodzinski, Problemy polityki migracyjnej Polski w latach 1989–1998(czerwiec) a nowa ustawa o cudzoziemcach (Warsaw: Biuro Studiów iEkspertyz Kancelarii Sejmu, 1998), p. 1.

9 Stachanczyk, Cudzoziemcy, p. 9.10 Lodzinski, Problemy polityki mygracyjnej Polski w latach 1989–1998, p. 23.11 See Council Regulation (EC) 539/2001 listing the third countries whose

nationals must be in possession of visas when crossing the external bor-ders of member states, and those whose nationals are exempt from thatrequirement, Official Journal of the European Communities, L 81/1, 2001, asamended by Council Regulation (EC) 2414/2001, OJ L 327/1.

12 Inotai, ‘The Czech Republic, Hungary, Poland, the Slovak Republic, andSlovenia’, p. 22.

13 Act of 12 October 1990 on Border Guard, Ustawa z dnia 12 paxdziernika1990 r. o Strawy Granicznej, Dziennik Ustaw (Official Journal) (1990), no.78, item 462. Act of 12 October 1990 on State Border Protection, Ustawaz dnia 12 paxdziernika 1990 r. o ochronie granicy panstwowej, DziennikUstaw (Official Journal) (1990), no. 78, item 461.

14 See the Act of 11 April 2001 on change of the Act on Border Guard andon change of some other acts, Ustawa z dnia 11 kwietnia 2001 r. o zmi-anie ustawy o Strawy Granicznej oraz o zmianie niektórych innych ustaw,Dziennik Ustaw (Official Journal) (2001), no. 45, item 498. Anotheramendment of the Act on Border Guard is under preparation (see the webpage of the Polish border guard headquarters www.sg.gov.pl).

15 M. Adamczyk, ‘Border Guard of the Republic of Poland. Modern EuropeanBorder Force’ (Warsaw: International Cooperation and EuropeanIntegration Bureau of the Border Guard Headquarters, unpublished paper,2002), pp. 30–31.

16 Act on Aliens, of 25 June 1997, Ustawa z dnia 25 czerwca 1997 r. ocudzoziemcach, Dziennik Ustaw (Official Journal) (1997), no. 114, item739. Amendment to the Act on Aliens, Ustawa z dnia 11 kwietnia 2001r. o zmianie ustawy o cudzoziemcach oraz o zmianie niektórych ustaw,Dziennik Ustaw (Official Journal) (2001), no. 42, item 475. In June 2003a new Act on Aliens was passed by parliament, Ustawa z dnia 13 czerwca2003 r. o cudzoziemcach, Dziennik Ustaw (Official Journal) (2003),no. 128, item 1175.

17 European Commission, ‘Regular Report on Poland’s progress towardsaccession to the European Union’, COM(2002) 700 final – SEC(2002)1408, 9.10.2002, p. 115.

18 The National Centre for Criminal Information is supposed to become thenational interface for SIS II. Act of 6 July 2001, Ustawa z dnia 6 lipca 2001r. o gromadzeniu, przetwarzaniu i przekazywaniu informacji kryminal-nych, Dziennik Ustaw (Official Journal) (2001), no. 110, item 1189.

19 Act of 16 November 2000, Ustawa z dnia 16 listopada 2000 r. o przeci-wdzialaniu wprowadzaniu do obrotu finansowego wartogci majhtkowych


pochodzhcych z nielegalnych lub nieujawnionych xrodel, Dziennik Ustaw(Official Journal) (2000), no. 116, item 1216 as amended.

20 Act of 29 August 1997, Ustawa z dnia 29 sierpnia 1997 r. o ochroniedanych osobowych, Dziennik Ustaw (Official Journal) (1997), no. 133,item 883 as amended.

21 Regulation of the President of the Council of Ministers of 6 March 2001,Rozporzhdzenie Prezesa Rady Ministrów z dnia 6 marca 2001 r. w sprawieokreglenia skladu i zadan Rady do Spraw Przeciwdzialania Narkomaniioraz szczególowych warunków i trybu jej dzialania, Dziennik Ustaw(Official Journal) (2001), no. 17, item 188.

22 Act of 28 October 2002, Ustawa z dnia 28 paxdziernika 2002 r. oodpowiedzialnogci podmiotów zbiorowych za czyny zabronione podgroxbh kary, Dziennik Ustaw (Official Journal) (2002), no. 197, item 1661.

23 See Adamczyk, Border Guard of the Republic of Poland.24 K. Iglicka, ‘Migration Movements from and into Poland in the Light of

East–West European Migration’, International Migration, 39/1 (2001), 3–32.25 In the present situation almost all decision making in the field of JHA is

governed by unanimity. According to the Treaty of Amsterdam, in 2004the Council can make a unanimous decision to introduce qualified major-ity voting for all or part of EU policy making in the fields of visas, asylum,immigration, and other measures related to free movement of persons.

26 Ministry of Interior and Administration, Poland’s Strategy of Integrated BorderManagement (Warsaw: Ministerstwo Spraw Wewnjtrznych i Administracji,2000), p. 142.

27 Ministry of Interior and Administration, Strategia zintegrowanego zarzhdza-nia granich w latach 2003–2005 (Warsaw: Ministerstwo SprawWewnjtrznych i Administracji, 2002), p. 108.

28 Ibid., p. 29.29 Polish Press Agency, 9 December 2003. Although visas were formally

introduced on 1 October 2003, Polish consulates started issuing themfrom 1 September.

30 J. Skolimowski, Director of the Consular and the Polish CommunitiesAbroad, Department of the Ministry of Foreign Affairs, has stated that thenumber of border crossings in the framework of the simplified bordertraffic amounted to 23,400 between Poland and Belarus and 15,200between Poland and Ukraine in 2001. Speech at the conference ‘TheEuropean Union and its Future Neighbours – How Much Freedom, HowMuch Security?’, Centre of International Relations, Warsaw, 6 and7 December 2002.

31 W.M. Orlowski, ‘Konsekwencje ekonomiczne Schengen’, in Institute ofPublic Affairs (ed.), Polska droga do Schengen – Opinie ekspertów (Warsaw:Instytut Spraw Publicznych, 2001), p. 97.

32 The drop was mainly in the number of Ukrainians coming to Slovakiafrom 1.7 million persons in 1998 down to 0.3 million in 2001.

33 A. Duleba, ‘Effects of visa regime on legal and illegal migration throughthe Slovak–Ukrainian border’, paper presented at the conference ‘EU


Governance and the Challenge of Internal Security’ (Leicester,20–21 September 2002).

34 Ibid., pp. 2–3.35 Orlowski, ‘Konsekwencje ekonomiczne Schengen’, p. 101.36 Council of Ministers, Raport w sprawie korzygci i kosztów integracji

Rzeczypospolitej Polskiej z Unih Europejskh (Warsaw: Rada Ministrów, 2000),p. 110.

37 See for instance Chapter 24 on Justice and Home Affairs in EuropeanCommission, ‘Comprehensive monitoring report on Poland’s prepara-tions for membership’, Brussels, October 2003.

38 Polish Press Agency, 4 February 2004.39 Article 1, paragraph 4 of the visa list regulation 539/2001.40 Polish Press Agency, 23 January 2004.41 European Commission, ‘Comprehensive monitoring report’, p. 116.42 Under the Schengen facility 300 million euros per year will be available

for the seven new member states who will be responsible for controllingthe EU’s future external border. See Article 35 of the Accession Treaty,Official Journal of the European Communities, L 236, 2003.


65

4The Implications of SchengenVisa Policy for the VisegradStates: The Case of SlovakiaAlexander Duleba

Introduction

This chapter will examine the impact of implementing the Schengenvisa policy on the eastern borders of the new European Union. As acase study, it looks at patterns of legal and illegal crossings at theSlovak–Ukrainian border, which was to become an external border ofan enlarged EU after 1 May 2004. The Slovak–Ukrainian border hasbeen chosen for this research because it is important in comparativeterms. It has been subject to a visa regime since June 2000, at whichpoint the borders between Hungary and Ukraine, and Poland andUkraine, still enjoyed a visa-free regime. Assessing the data collectedon the situation at the Slovak–Ukrainian border therefore offersan indication of how future Schengen arrangements will affectSlovakia’s Visegrad neighbours in the enlarged EU. It also suggestssome ways of dealing with the potential consequences of sucharrangements.

The analysis begins by looking at the changes made to Slovakia’slegislation on its border regime and visa policy in preparation forenlargement. It examines the effects of Slovak government policy aswell as bilateral arrangements between Slovakia and Ukraine on theircommon section of border, with a special focus on legal and illegalmigration and protecting the border. Apart from looking at thelegislative and policy framework, the chapter will evaluate the impact

of the visa regime on Slovak–Ukrainian relations and on the legalmovement of persons, transport links and tourism, as well as bordercrime, illegal migration, crime committed by Ukrainians on Slovakterritory, and also labour migration.

The impact of EU accession on Slovakia’s border regime with Ukraine

The border regime before 1999

Slovakia’s accession to the EU was the key factor which led to funda-mental changes in the Slovak–Ukrainian border regime. Adopting EUlegislation and bringing Slovakia’s administrative capacity and bor-der infrastructure up to EU standards caused considerable interfer-ence to the bilateral border arrangements between Slovakia andUkraine established at the beginning of the 1990s.

In fact, this was the second major change of the Slovak–Ukrainianborder regime in the last decade. The first shift resulted from thedramatic geopolitical shake-up in the former communist bloc at the beginning of 1990s, when the countries of which Ukraine andSlovakia were part – the Soviet Union and Czechoslovakia – disap-peared from the political map of Europe. In 1993, when Slovakiagained its independence, the former Czechoslovak–Soviet borderestablished in the aftermath of the Second World War finally becamethe modern Slovak–Ukrainian border, after a short interval in 1992when it was the border between Czechoslovakia and Ukraine.Historically, there had been no state border between the territory ofmodern Slovakia and the Transcarpathian Region of Ukraine. BothSlovakia and Transcarpathia (the historical name of the region is‘Subcarpathia’) were parts of the same state formations for more thana thousand years: the Greater Moravian Empire, the Kingdom ofHungary, the Habsburg Monarchy, Austria-Hungary and finally thefirst Czechoslovak Republic. It was only in 1946 that Czechoslovakiaceded its former eastern province of Subcarpatian Rus to the SovietUnion following an intergovernmental treaty.1

In June 1993, the heads of state of Slovakia and Ukraine signed aBasic Treaty in Kyiv which recognized the common state border thatboth countries had inherited from their predecessor states, and inOctober 1993, the two new states signed a package of three ‘bordertreaties’.2 In fact, the treaties left unchanged the technical provisions


for Ukrainian and Slovak citizens crossing the common border thathad been established by a 1981 agreement between the Soviet Unionand Czechoslovakia.3 There was no visa requirement, but the newregime imposed a set of regulatory measures, and in order to crossthe border, citizens of both countries needed an official invitationfrom the other country authorized by the police authorities or a touristvoucher for which they paid a (largely symbolic) charge. In the caseof business trips, a special stamp in the passport authorized thebearer to cross the border without any fee or limit to the number ofannual crossings. The border police also had the power to issue astamp in the passport of an employee of a corporate body, providedthat it was able to document its collaboration with a partner in theother country. Given the communist past, when citizens’ access totravel documents allowing them to go abroad was under strict politi-cal control and managed by the police, the new travel regime imposedon the Slovak–Ukrainian border in 1993 was generally perceived inUkraine and Slovakia as an intrinsic part of the individual freedomthey enjoyed under the new post-communist period.4 It was not sodifferent from communist times in terms of procedures at the border-crossing point, but it was dramatically different when it came to citi-zens’ right to travel abroad and their access to travel documents.

Moreover, in the mid-1990s both sides intended to liberalize theborder regime even further. In February 1995 the Slovak governmentled by the then prime minister Vladimír Meeiar signed an agreementon non-visa travel with the Russian Federation, which abolished anyregulatory measures such as tourist vouchers and official invitationsfor citizens of Slovakia and Russia provided that their stay in theother country did not exceed 30 days. An identical agreement wasconcluded with Belarus in September 1995,5 and the Meeiar govern-ment was planning to sign a similar non-visa agreement withUkraine. However, this never actually happened because in March1995, the Implementation Convention of the Schengen Treaty hadcome into force, and in June 1995 Slovakia submitted its officialapplication for EU membership. In September 1997, the DublinConvention of 1990 also came into force, and through the CommonConsular Instruction it created the EU’s negative list of the countrieswhose citizens needed a visa in order to cross the border of an EUmember state. Russia, Belarus and Ukraine were on the list of the EU visa countries.

Schengen Visa Policy in Slovakia 67

The EU December 1997 summit in Luxembourg invited the firstgroup of post-communist candidate countries, including Slovakia’sthree Visegrad neighbours, to start accession talks. Among otherrequirements, they had to adjust their domestic legislation andtreaties with third parties to EU standards, including those in the fieldof justice and home affairs. Slovakia had at this point been excludedfrom the frontrunners for joining the EU. However, the reason forexcluding Slovakia was not any reluctance on Slovakia’s part to followEU standards in issues such as the Schengen acquis, but primarily theundemocratic style of ruling of the Meeiar government.6 Althoughthe government had not withdrawn from the 1995 visa-free agree-ments with Russia and Belarus, it was sensitive to EU requirementsin this area and it did not sign any further such agreements withcountries on the EU’s negative visa list, including Ukraine.

The next Slovak government, led by Mikulás Dzurinda, came topower after the September 1998 election, and made it clear that itconsidered NATO and EU membership priorities for Slovak foreignpolicy, and that it was prepared to subordinate domestic policies andexternal relations to achieving this aim.7 The Dzurinda governmentthereby succeeded in improving the country’s international position,including relations with the European Union.

Adapting visa policy to the EU acquis

The EU invited Slovakia to start detailed negotiations at the Helsinkisummit of December 1999, and Slovakia presented its general nego-tiating position at the first meeting of the EU–Slovakia accession con-ference on 15 February 2000. The EU opened the first chapters of theaccession talks with Slovakia during the Portuguese presidency in the first half of 2000, and the last of the 31 chapters was closedduring the Danish presidency in the second half of 2002.8 Slovakiatherefore managed to catch up with its Visegrad neighbours eventhough it started negotiations two years later. After signing theAccession Treaty in April 2003 and holding a successful referendumthe following month, Slovakia joined the EU together with nineother states on 1 May 2004.

Since the Amsterdam Treaty, which came into force in 1999, hadincorporated the Schengen protocol into the EU legislative frame-work, the Schengen acquis were included in Chapter 24 of the acces-sion negotiations, which dealt with cooperation in the field of justice


and home affairs. The Slovak Republic submitted its negotiating posi-tion on Chapter 24 to the EU in December 2000,9 the EU adopted itscommon negotiating position towards Slovakia in June 2001, andChapter 24 was opened at the end of the Swedish presidency laterthat month. Although it had been considered one of the more com-plex chapters in the accession negotiations, Slovakia did not requestany derogations or transitional periods for the implementation oflegislation or administrative capacity building under this chapter,and declared that it would complete the preparations necessary foraccession before the reference day for the Slovakia joining the EU,which was then 1 January 2004.10

However, the task facing Slovakia was not an easy one. In its 1999regular report on Slovakia’s progress towards EU accession, theEuropean Commission had stressed that ‘there was no progress con-cerning the alignment of the Slovak visa legislation to EU require-ments particularly with regard to Belarus, Russia and Ukraine’.11 Thiscritical evaluation by the Commission presented a challenge for theSlovak government, and expedited the gradual alignment of Slovakia’svisa policy to that of the EU member states. However, in March 2000the Slovak government approved its ‘Concept of alignment of thevisa policy of the Slovak Republic with the European Union’,12 inwhich it established a calendar for abrogating agreements on visa-free regimes with countries on the EU negative visa list. At the sametime, the Slovak government decided to renounce the 1981Czechoslovak–Soviet agreement on reciprocal travel and the protocolto this agreement relating to Ukraine, and to impose visa require-ments on Ukrainian citizens as from 28 June 2000. It also terminatedthe non-visa regime with Russia and Belarus as from 1 January2001.13 In April 2001, a new Council Regulation 539/2001 updatedboth the EU positive and negative lists of visa countries, and theSlovak government followed it by adopting a new document onthe ‘Harmonisation of the visa policy of the Slovak Republic with theEU’.14 In the ‘Report on the state of the accession talks with the EU’of February 2003, completing the harmonization of Slovakia’s visaregime by the end of 2003 was one of the priorities.15

Slovakia’s visa regime is now defined by Act No. 48/2002 on the ‘Stayof aliens on the territory of the Slovak Republic’,16 which broughtprocedures, conditions for applicants and also the different types ofSlovak visas into line with EU standards. In December 2001, the Slovak


government decided to establish the Central Visa Office (CVO), whichreviews visa applications by foreign citizens and gives approval for issu-ing visas. The CVO has been operating since 1 February 2002 as part ofthe Office of Border and Alien Police, which is the main coordinatinginstitution responsible for the implementation of EU standards inthe JHA field, and has its own state budget financing. Starting from1 April 2002, the CVO has had a direct data online connection withthe Ministry of Foreign Affairs. The online data transmission systemconnecting the Ministry of Foreign Affairs with all Slovak embassiesabroad was to be completed and in operation by the end of 2003.17

The bilateral policy context

Ukraine is the only one of Slovakia’s neighbours on the EU negativelist of visa countries, and following Slovakia’s adoption of the EU’sJHA acquis, the imposition of the visa regime and Ukraine’s responseof questioning their bilateral readmission agreement became themost sensitive issues in Slovak–Ukrainian bilateral relations.

Public discussion of the imposition of visa restrictions on Ukrainiancitizens began in November 1998. Then Czech Foreign Minister JanKavan tabled the issue during his visit to Bratislava, when he declaredthat ‘the Czech Republic will tighten its border policy with Slovakiaas long as Slovakia does not tighten controls on the Slovak–Ukraineborder, and thus limit the flow of illegal immigrants across thisporous border’.18 Slovakia’s then deputy foreign minister, and laterchief EU negotiator, Ján Figel’, was the first Slovak state official toreact publicly. Apart from the necessity of coordinating the Czech andSlovak approaches so that there would never be a Schengen borderbetween the Czech Republic and Slovakia, he used the ‘EU integra-tion’ argument, according to which Slovakia had to bring its visa poli-cies into line with those of the EU.19 According to Figel’, if Slovakiawere in the future to impose a visa requirement on certain countries,this would not imply that the foreign policies of those countries wereunsuccessful or untrustworthy, but it would simply be a measure todefend Slovakia’s national interests. Above all, Slovakia had to takeeffective measures against illegal migration and organized crime.20

Interior Minister Ladislav Pittner added another argument: ‘One ofthe reasons behind the imposition of the visa requirement is also pro-tecting the labour market, as Ukrainian nationals are ready to workunder far worse conditions than Slovak citizens.’21


The question of imposing a visa regime on Ukraine was one of themain points of discussion between the prime ministers of theVisegrad countries during a summit in the High Tatras in Slovakia inOctober 1999. It was the only point on the agenda that produceddiverging opinions. The Czech and Slovak premiers supported thestep, while the Polish and Hungarian premiers opposed it. SlovakPrime Minister Dzurinda said after the talks that the Visegrad coun-tries wanted to coordinate their approach to the issue, which waswhy no final decision was taken during the summit.22 However, theyhad in fact been unable to coordinate their approach because theCzech Republic had decided to introduce a visa regime on citizens ofthe Russian Federation and Belarus from 29 May 2000, and onUkrainian citizens as of 1 January 2000, regardless of its partners.23

On 15 March 2000, the Slovak government decided to impose a visaregime for Ukrainian citizens as of 28 June 2000 and for Russian,Belarusian and Cuban nationals as of 1 January 2001.24 The Ukrainiangovernment replied in kind, imposing a visa requirement on Slovakcitizens from 28 June 2000. Moreover, on 4 October 2000 theUkrainian Cabinet of Ministers took the decision to renounce itsreadmission treaty with Slovakia, which meant a radical step backin the protection of common borders and the control of movementof illegal immigrants from the territory of Ukraine to Slovakia.25

Ukraine disagreed with Slovakia’s decision to impose a visa regime,regarding it as being, at the very least, premature. According to theUkrainian ambassador to the Slovak Republic Yuriy Rylach, theimposition of the visa regime by the Slovak side ‘was not absolutelyimperative’.26

The introduction of visas in June 2000 significantly reduced thelegal movement of persons through the common Ukrainian–Slovakborder. This led the Ukrainian and Slovak governments to negotiatea liberalization of the visa regime aimed at mitigating its negativeimpact on bilateral relations. An accord was reached at the end of2000 when the then Ukrainian Prime Minister Viktor Yushchenkopaid a visit to Slovakia to meet his Slovak counterpart Dzurinda. Thetwo premiers agreed to create a joint expert commission to look atthe results of Slovakia’s visa requirement for Ukraine nationals, and todevise a liberalized regime that would interfere as little as possiblewith business, social, cultural and sport contacts. In February 2001the two sides changed the visa regime, effective as of 1 March 2001,


to eliminate the need to show a letter of invitation by citizens ofboth countries in order to get a visa, and to provide free visas for chil-dren under 16, and to permit the issue of free multi-entry visas forsome categories of applicants who had to cross the border often, suchas air crews, river and seagoing boat crews, railway workers, truckers,people living in border areas, and above all those with relatives onthe opposite side of the state border.27

Thanks to the rapprochement on the visa regime, Ukraine did notwithdraw from its 1993 bilateral readmission agreement with Slovakia,but at the same time it did not accept a Slovak proposal of July 2001to bring the readmission agreement in line with new EU standardsbased on the European Council’s Recommendations of 30 November1994 and 24 July 1995. This still creates some tension and mis-understanding in bilateral Slovak–Ukrainian relations. Moreover,representatives of the Slovak Border and Aliens Police noted thateven though the readmission agreement with Ukraine was still inplace, in 2001 they observed a reduction in the willingness of theirUkrainian partners to cooperate in readmitting persons who illegallycrossed the common state border and were detained by the Slovakauthorities on Slovak territory. This tendency had become more con-spicuous from the end of June 2000, which is when the visa regimecame into force. According to the then deputy director of the SlovakBorder and Aliens Police, Miroslav Kolcar, whereas in 1999 theUkrainian side readmitted all illegal migrants detained by Slovakborder police, ‘since 28 June 2000 there is a statistically growingnumber of cases when the Ukrainian side refused’.28

Impacts of the visa regime

Legal movement of persons and transport

This part of the chapter will assess the impact of the imposition ofthe visa regime at the Slovak–Ukrainian border in June 2000 usingnew statistical data provided by the Slovak authorities, especially theBorder and Aliens Office of the Police Corps of the Slovak Republic.29

As discussed, the imposition of the visa regime created a rathernegative general political framework for bilateral Slovak–Ukrainianrelations. Before its imposition, the visa debate on both sides of theSlovak–Ukrainian border revolved around two main fears. The firstwas that the visa regime would hit human contacts between Slovaks


and Ukrainians because the number of citizens visiting the othercountry would dramatically decrease, and the second was that itwould result in a reduction of economic cooperation and tradeexchange between the two states.30 The following analysis examinesthe extent to which the ‘post-visa’ reality matches the negativeexpectations. If we compare annual statistical data on movement ofpersons through the Slovak–Ukrainian border in 2001 and 2002, thefirst two full years that the visa regime was in force, with data for pre-vious ‘non-visa’ years, we can make some preliminary conclusionsabout the impact of the visa regime on Slovak–Ukrainian relations.

As Table 4.1 shows, the imposition of the visa regime significantlyreduced the number of crossings through the Slovak–Ukrainian bor-der by Ukrainian citizens. The figure rose slightly in 2002 bothbecause of the liberalized visa regime that entered into force in 2001,and because of improvements in the Slovak consular service in


Table 4.1 Number of people legally crossing the Slovak–Ukrainian border,1998–2002

1998 1999 2000 2001 2002

From Slovakia to UkraineCitizens of Slovakia 75,652 62,096 52,718 54,092 76,799Citizens of Ukraine 1,765,657 1,247,294 549,726 278,315 326,331Citizens of non-visa 67,613 54,757 52,876 33,448 35,457countries

Citizens of 3,040 2,501 15,780 32,446 20,740visa countries

From Ukraine to SlovakiaCitizens of Slovakia 76,104 63,140 53,145 53,608 76,435Citizens of Ukraine 1,727,186 1,435,277 620,545 290,849 334,809Citizens of non-visa 69,446 57,620 53,496 33,330 36,651countries

Citizens of 2,699 2,065 10,575 24,927 25,237visa countries

Total number of 3,787,397 2,924,750 1,408,861 801,015 932,459persons

Source: Office of the Border and Aliens Police, Presidium of the Police Corps of the SlovakRepublic, March 2003.

Ukraine, including strengthening the Consulate General in theUkrainian city of Uzhorod, which is just over the border fromSlovakia. However, the visa regime did not affect so dramatically thenumber of Slovaks travelling to Ukraine. After an initial drop in2001, in 2002 the total exceeded that in 1998 and 1999. This canagain be explained by the liberalization of the visa regime in 2001,and also by the fact that the visa fee of 24 US dollars for single entryis not such a brake for Slovak citizens as their average income is farhigher than that of Ukrainians. There was also a decrease in the num-ber of citizens of non-visa countries crossing the border, and a hugeincrease in crossings by persons from third countries requiring visas,which can be accounted for by the fact that Slovakia imposed visarequirements on citizens of Russia and Belarus on 1 January 2001.However, the total number of legal border crossings in 2001 was littlemore than a fifth of the 1998 figures, so the visa regime imposed in2000 had clearly interfered significantly with the Slovak–Ukrainianborder regime.

At the same time, as Table 4.2 shows, the imposition of the visaregime did not affect transport over the Slovak–Ukrainian border sodramatically as the number of people crossing. There was a signifi-cant reduction in buses crossing and a slight drop in the number ofcars, but there was a stable increase in the number of passenger trainscrossing the border, and a marked rise in freight. This indicates thatthe visa regime did not have a negative affect on the exchange ofgoods and services between Slovakia and Ukraine, although a signif-icant part of the increased number of freight crossings in the first two‘visa years’ of 2001 and 2002 was transit to and from third countries.Figures on bilateral trade (see Table 4.3) show that Slovakia’s tradewith Ukraine grew over the years of 2001 and 2002 regardless of theimposition of the visa regime. In other words, one of the two mainfears raised during the ‘visa debate’ in both Slovakia and Ukraine –that a visa regime would reduce bilateral economic cooperation andtrade – was not realized.

However, although the visa regime did not negatively affect bilat-eral foreign trade, over the last few years there has been a gradualdecrease in the relative share of the Ukrainian section of the totalSlovak national border in the total number of crossings to and fromSlovak territory by individuals. The border with Ukraine represents6 per cent (97.6 km) of the total length of the Slovak state borders


(1677.9 km), and includes two of Slovakia’s 47 road border-crossingpoints and two of its 20 railway-crossing points to neighbouringcountries. Yet the share of the Ukrainian border in the total legalmovement of persons over Slovak state borders dropped from 3.4 percent in 1998 and 2.8 per cent in 1999 to 1.1 per cent in 2002, with alow of 0.8 per cent in 2001. The share of the Ukrainian section of theborder in the total movement of transport has been more balanced,as it only decreased from 2.3 per cent in 1998 to 1.9 per cent in 2002,


Table 4.2 Transport movement through Slovak–Ukrainian border crossings,1998–2002

1998 1999 2000 2001 2002

From Slovakia to UkraineCars 327,848 211,923 154,180 188,293 227,483Buses NA 15,449 6,425 3,701 6,625Trucks 29,504 15,965 12,862 16,289 20,380Passenger trains 1,439 1,589 1,827 1,954 2,059Freight trains 985 1,383 3,730 6,512 5,563

From Ukraine to SlovakiaCars 327,500 224,981 169,995 187,765 223,830Buses NA 13,265 7,760 3,894 4,151Trucks 33,220 17,240 14,029 17,508 23,054Passsenger trains 1,439 1,588 1,827 1,954 2,059Freight trains 983 1,373 3,820 6,608 5,652

Total 722,918 504,756 376,455 434,478 517,856


Table 4.3 Slovakia’s trade with Ukraine, 1993–2002 (in $ million, current prices)

1993 1994 1995 1996 1997 1998 1999 2000 2001 2002

Exports 130.9 119.1 121.7 177.0 270.0 229.2 136.2 147.1 145.5 155.8Imports 142.4 121.0 188.7 241.3 250.7 181.2 144.8 189.0 194.1 186.9

Total 273.3 240.1 310.4 418.3 520.7 410.4 281.0 336.1 339.6 342.7

Balance �11.5 �1.9 �67.0 �64.3 19.3 48.0 �8.6 �41.9 �48.6 �31.1

Source: Ministry of the Economy of the Slovak Republic.

but it is still far below the 6 per cent share of the Slovak border thatadjoins Ukraine. In other words, contacts over the Ukrainian sectionof the Slovak border are limited and show a downward trend, in con-trast to other sections of the border, and this is especially true wherehuman contacts are concerned.

The same also applied to tourists. Only about 6 per cent of the totalnumber of Ukrainians who crossed the border with Slovakia after theintroduction of the visa regime made use of tourist accommodation,and as can be seen from Table 4.4, this was only half the previousnumber of Ukrainians and Russians who had stayed as tourists. Theoverall number of tourists from all countries visiting Slovakia wasalso on the rise at the time.

Border crime

The attention the Slovak authorities have paid to protecting the borderwith Ukraine since the reform of the border services began in 1999has led to a decrease in registered illegal activities (other than illegalmigration) committed by persons crossing the Slovak–Ukrainianborder. This included offences such as being in possession of stolenvehicles or travel documents that had been forged or tampered with.In the case of people crossing from Slovakia to Ukraine, they decreasedfrom 322 in 1998 to 192 in 1999 and 102 in 2002, while for personscrossing from Ukraine to Slovakia there was an even sharper reduc-tion from 685 in 1998 to 353 in 1999 and 129 in 2002.31 Likewise,the number of persons who have not been allowed to cross theborder by Slovak border police has decreased gradually from 8172 in1998 to 5993 in 1999 and 4437 in 2002.32 The introduction of thevisa regime in 2000 does not therefore appear to have been crucial inthis area.

However, the Customs Directorate of the Slovak Republic reportsthat the number of customs offences committed by legal persons(businesses) and physical persons (individuals) transporting goodsover border crossings on the Slovak–Ukrainian border dropped sig-nificantly after the imposition of the visa regime in 2000, as can beseen from Table 4.5. Nevertheless, it also notes that the customs ser-vice at the border with Ukraine registered just one case of stoppingtrafficking in narcotics (25.94 kg of heroin) and six cases of attempt-ing illegal transport of armaments (hand-carried weapons, munitionsand spare parts for tanks) between 1993 and 2001.33 It therefore


77

Table 4.4 Foreign visitors who used tourist accommodation in Slovakia by country of origin, 1995–2002

Country of 1995 1996 1997 1998 1999 2000 Jan–Sept 2001 Jan–Sept 2002origin

Czech Rep. 215,199 240,597 212,916 244,454 275,031 277,401 276,089 381,006Germany 160,590 155,556 131,374 141,373 137,964 155,129 139,325 152,229Poland 114,189 141,738 116,604 132,047 173,135 201,082 227,575 233,223Hungary 61,953 54,916 41,815 49,423 53,057 59,322 59,676 72,581Ukraine 35,991 39,933 32,427 37,725 31,732 24,212 13,491 14,810Austria 44,767 42,880 36,282 31,832 32,643 36,779 33,532 35,818Russia 27,208 32,069 24,495 27,313 22,361 30,861 16,187 16,636Italy 28,865 27,380 24,009 24,968 27,076 24,212 25,463 27,133UK 15,805 17,063 19,366 18,557 18,049 10,092 17,258 19,559Netherlands 26,009 27,613 16,270 15,911 16,540 18,772 19,536 21,291France 16,817 18,868 16,068 14,633 14,833 16,015 16,113 17,858

Total 902,975 951,355 814,138 896,100 975,105 1,052,700 1,010,997 1,164,500

Source: Statistical Office of the Slovak Republic, Ministry of the Economy of the Slovak Republic, January 2003.

appears that the Ukrainian section of the Slovak border is not con-spicuous for cross-border illegal activities when compared to otherparts of the border.

Illegal migration

One of the main arguments raised by supporters of the visa regimewith Ukraine was that it would help Slovakia to protect its bordersagainst illegal migration.34 In fact, this argument was taken from EUdocuments on justice and home affairs issues, such as the 1999 reg-ular report on Slovakia, which had been one of the most criticalreports on Slovakia in the JHA field.35 However, Slovak–Ukrainianexperiences from the two-and-a-half ‘visa years’ do not substantiatethis argument. They actually prove the contrary, namely that there isno link between a visa regime in bilateral relations and border pro-tection against illegal migration from third countries. The visaregime imposed on Ukrainian citizens has significantly affected legalmovement of persons through the Slovak–Ukrainian border, but hasdone practically nothing to relieve the pressure of illegal migrantsfrom third countries on the border.

As shown in Table 4.6, the number of illegal migrants detainedannually by the Slovak border police at the border with Ukraine rose


Table 4.5 Customs offences committed by legal business entities and individuals

1998 1999 2000 2001

Offences of legalbusinessesNumber of cases 91 69 36 38Total value of goods 41,820,400 65,690,295 18,953,300 53,128,384(in Slovak crowns,current prices)

Customs and tax evasion 182,478,275 32,247,964 9,007,708 3,064,923(in Slovak crowns)

Offences byindividualsNumber of cases 1,389 4,130 3,927 886Customs and tax evasion 852,558 547,672 22,756 7,485(in Slovak crowns)

Source: Customs Directorate of the Slovak Republic, 2002.

from 91 persons in 1993 to more than 2000 persons in 2002. Thecritical year was 1999, when the number of illegal migrants detainedat the border more than trebled. The increasing pressure of illegalmigrants on the Ukrainian section of the Slovak border is matchedby developments along the entire border, and has shown a risingtrend over the last decade regardless of the visa regime.

The statistical data in Tables 4.7 and 4.8 show that there has beensome change in the direction of movement of illegal migrants to andfrom the Slovak territory. In 1993 the most pressured section of theSlovak border was with Hungary, whereas in 1995 it became the bor-der with Poland, then with the Czech Republic and during 2001 and2002 with Austria. The most significant change on the border withUkraine was in 1999, when the pressure of illegal migrants increasedmore than fourfold. At the beginning of the 2000s, the border withUkraine was the third most problematic section of the Slovak borderafter the western borders with Austria and the Czech Republic.

The pressure of illegal migrants on Slovak borders peaked in 2001,when it rose to 15,548 persons, remaining at a similar level in 2002.In other words, the pressure of illegal migrants practically doubled inthe first two years of the century, and increased more than sevenfold


Table 4.6 Number of illegal migrants detained by the Slovak border police atthe Slovak–Ukrainian state border, 1993–2002

Year Movement of illegal migrants Total number of

To Slovakia From Slovakia illegal migrants

1993 55 36 911994 56 10 661995 72 20 921996 225 10 2351997 99 6 1051998 353 12 3651999 1,509 52 1,5612000 1,428 27 1,4552001 1,846 14 1,9452002 2,391 8 2,399

Total, 8,034 280 8,3141993–2002


80

Table 4.7 Pressure of illegal migrants* on the borders of the Slovak Republic with neighbouring countries, 1993–2002

Border on 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002

Czech Rep. 0 380 63 1,622 926 5,254 3,433 2,190 4,098 3,983Ukraine 91 66 92 235 105 365 1,641 1,473 1,945 2,399Austria 309 163 155 220 665 504 1,365 1,233 6,083 6,293Poland 744 715 1,015 755 564 843 776 736 748 761Hungary 1,038 567 893 497 561 1,270 586 427 1,703 1,799Slovakia – NA NA NA NA NA NA NA 0 971 0inland

Total 2,182 1,891 2,786 3,329 2,821 8,236 7,801 6,059 15,548 15,235

Note: * Number of identified and unidentified persons who illegally crossed the Slovak state border in both directions – from and to Slovakia.

Source: Office of the Border and Aliens Police, Presidium of the Police Corps of the Slovak Republic, March 2001.

between 1993 and 2002. However, the statistics give us only a relativepicture. The fact that the Slovak border police detained more illegalmigrants in 2001 and 2002 does not necessarily mean that the realnumber of migrants in previous years was lower, but could demon-strate a significant improvement in the efficiency of the Slovak bor-der police. This interpretation is supported by the fact that it wasduring these two years that the Slovak authorities started to imple-ment serious reforms of border management in the context of the EUaccession process.

The structure of illegal migrants detained at the Slovak–Ukrainianborder in terms of their country of origin has remained similar forseveral years, with a preponderance of nationals of India, China,Afghanistan, Iraq and Bangladesh. There are only two Europeancountries in the top ten group of countries of origin of illegalmigrants: Moldova and Ukraine. The number of Ukrainian citizenswho have been detained by Slovak authorities illegally crossing theSlovak border averages around 30 persons annually, although in2002 it increased more than twofold to 68 persons. Nevertheless, thisis still a relatively small number compared to the total of 15,235 per-sons detained illegally crossing Slovak borders.36 While the smug-gling of illegal migrants across the Slovak–Ukrainian border istherefore clearly a problem, it does not appear amenable to solutionby changing the visa regime.

Labour migration

In March 1997, Slovakia and Ukraine signed a bilateral intergovern-mental agreement on the reciprocal employment of citizens thatcame into force in May 1998,37 and an implementing protocol to theagreement was signed in April 2002. The agreement allows limited


Table 4.8 Pressure of illegal migrants on the Slovak Republic’s state borders bydirection, 1993–2002

Direction 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002

From Slovakia 1,141 1,017 1,446 2,774 2,088 6,320 5,071 3,822 10,773 10,252To Slovakia 1,041 883 1,340 955 733 1,916 2,818 2,237 4,775 4,983


annual quotas of citizens from each country to work on the territoryof the other in three categories of employment: 200 citizens in long-term employment (for a maximum one-year period, with an optionto prolong this for six months if the situation in the labour marketpermits); 300 citizens in short-term employment (seasonal jobs for amaximum of six months per year); and 1800 persons in employmentfor a two-year period on the basis of contracts concluded betweenlegal and physical persons in the two countries, extendable to threeyears if required. Consequently, a maximum of 2300 Ukrainians peryear may work legally in the Slovak Republic and vice versa. However,statistics from the National Labour Office of the Slovak Republic showthat the quotas for Ukrainians working in Slovakia were not fullyutilized, with mostly manual workers (especially building workers)using the possibility, while the number of Slovaks who worked inUkraine was negligible.38

It is likely, however, that far higher numbers of Ukrainians areworking in Slovakia illegally. Initial estimates of the number of illegalworkers from Ukraine in the Czech Republic and Slovakia appeared in1999 and 2000 during the visa debate in both countries. Apart fromthe main argument for introducing visas – that it was necessary tocomply with EU visa policy – it was also argued that both countriesneeded to protect their labour markets against illegal workers fromUkraine. According to the then spokesperson of the Slovak Ministryof Interior, ‘there are problems especially with Ukrainians who exploitthe non-visa regime to cross state borders as tourists and do notrespect the terms of their residence in Slovakia. A first category islooking for “black jobs”, while a second category visits Slovakia withthe aim of committing crime.’39 The Czech Ministry of the Interiorestimated that the number of illegal economic migrants from Ukrainein the Czech Republic was almost 200,000 by the end of 1998, themajority of whom came from the western regions of Ukraine (Lviv,Lutsk, Rivne, Ivano-Frankivsk, Chernivtsy and Uzhorod). The SlovakMinistry of the Interior also published data before the imposition ofvisas on Ukrainian citizens estimating the number of illegal economicmigrants from Ukraine in Slovakia at about 60,000, of whom themajority likewise came from western Ukraine.40

However, the estimate of the number of Ukrainians working ille-gally in Slovakia would appear to be slightly exaggerated. Systematicdetection of illegal workers in Slovakia only began in 2000, when the


relevant state agencies agreed to coordinate their activities in com-bating hidden unemployment and illegal work.41 Only then didnationwide inspections begin. In 2000, the number of enterprisesand businesses inspected was 2929 and the number of employeesinspected was 14,757, rising to 6835 businesses and 44,167 employeesin 2002. Of the total of 77,295 employed persons inspected between2000 and 2002, only 712 – 0.92 per cent – were found to be illegalworkers. Labour inspectors cooperating with the Border and AliensPolice also detected 357 illegal workers of foreign origin who wereexpelled from Slovak territory.42 Therefore only a third of the illegalworkers detected were foreign nationals. These are the first empiricaldata that allow us to estimate the extent of illegal work in Slovakia,and the share of Slovak and foreign nationals involved.

There are different estimates of the overall scope of hidden employ-ment and illegal work in Slovakia, varying from 76,000 to 200,000persons. The Research Institute of Labour estimates that the numberof illegal workers in Slovakia is between 76,000 and 82,000 persons,the Ministry of Labour, Social Affairs and Family 82,000, the NationalLabour Office between 80,000 and 140,000, Moody’s Rating Agency160,000, and the Taxation Office 200,000 persons.43 If we take theaverage estimate of illegal workers in Slovakia to be 126,200 persons,of whom, according to labour inspections, a third are foreign nation-als, then we reach an estimate of 42,025 of foreigners working ille-gally in Slovakia. There are no available data on the nationality of theforeign nationals caught working illegally, but even if we assumedthat they were all Ukrainians – which is hardly probable – the figureis still lower than the original guess that there are some 60,000Ukrainians working illegally in Slovakia. It is more realistic to assumethat the real number is considerably lower than 40,000.

The visa regime does not present an insurmountable obstacle forUkrainians seeking illegal employment in Slovakia. It is an open secretthat most of them work as casual labour in the building industry. Evenif we assume that they receive half the average monthly wage in thissector, which is about 5000–6000 Slovak crowns (125–150 US dollars),of which they spend 24 dollars on a single entry visa allowing them tostay in Slovakia for 30 days, they still make more than 100 dollars amonth. This is about 550 Ukrainian hrivnas, and compares favourablywith the average monthly wage in Ukraine, which in 2001 was310 Hrivnas. This is a conservative estimate of their real earnings,


which are likely to be two or three times higher as they normallywork 14–16 hours a day, seven days as week. Consequently, the visaregime is unlikely to prevent illegal labour migration from Ukraine toSlovakia as long as there is a market demand for such labour inSlovakia.

Criminal activities of Ukrainian citizens in Slovakia

Another expectation raised during the ‘pre-visa debate’ in Slovakiawas that the imposition of the visa requirement on Ukrainian citizenswould stop them engaging in criminal activity on Slovak territory.However, the ‘Report on fulfilling tasks that result from the complexprogramme for combating crime’ submitted to the Slovak govern-ment by the Interior Minister in May 2001 stated that ‘the imposi-tion of the visa regime on Ukraine did not lead to the significantdecline in the number of crimes committed by Ukrainian citizensthat we originally expected’.44 Of the total number of 93,053 crimesregistered in 2001, 1223 (1.3 per cent of the total) were committedby 1054 persons of foreign origin. Most crimes by foreign nationalswere committed by citizens of Romania (174 persons), followed bythe Czech Republic (168), Ukraine (143) and Bulgaria (109). In 2001,the Slovak authorities expelled 1684 foreign nationals using admin-istrative measures, as well as 62 expelled following court verdicts.45

From 1993 to 2000, the number of foreign nationals barred fromvisiting Slovakia because they had been designated persona non grataby the Slovak authorities was 2791 persons, of whom 782 (28 per cent)were Ukrainian citizens. This means that Ukrainian nationals rank insecond place after Romanian citizens, who comprise 45.2 per cent ofthose declared persona non grata by the Slovak authorities.46 In otherwords, the criminal activity of Ukrainian citizens in Slovakia doesnot as such represent an exceptional phenomenon that would chal-lenge the existing bilateral police cooperation between Slovakia andUkraine if there were no visa regime.

Summary of main findings

A number of conclusions can be drawn from this analysis of theimpacts of the visa regime on the Slovak–Ukrainian border regime.Between 1999 and 2002, adopting EU legislation and bringing


Slovakia’s administrative capacities and border infrastructure into linewith EU standards interfered considerably with the bilateral borderregime between Slovakia and Ukraine. The imposition of a visaregime significantly affected the number of border crossings made byUkrainian citizens, which decreased to a sixth of the volume duringthe pre-visa period. However, the visa regime did not have mucheffect on travel to Ukraine by Slovak citizens: quite the contrary, in2002 the number of border crossings by Slovak citizens exceeded thatin the pre-visa years.

Moreover, the imposition of the visa regime did not affect trans-port movements over the Slovak–Ukrainian border as dramatically asthe legal movement of persons. Figures on bilateral trade show thatSlovakia’s trade with Ukraine grew in 2001 and 2002 in spite of theimposition of the visa regime. In other words, one of the main fearsraised in both Slovakia and Ukraine during the ‘visa debate’ –namely, that it would reduce bilateral economic cooperation and tradeexchange – has not been realized. Nevertheless, contacts across theUkrainian section of the Slovak border did show a downward trendafter the visa regime was imposed when compared to the borderswith other neighbouring countries, and this applied in particular tothe movement of persons (rather than freight). Both these basic indi-cators are far below the 6 per cent share of the Slovak–Ukrainianborder in the total length of the Slovak state borders.

However, when it comes to detecting illegal migration, theUkrainian section of the Slovak border has been steadily increasing insignificance, with by far the most marked increase in 1999.Slovak–Ukrainian experiences from the two ‘visa years’ tend, there-fore, to support the argument that there is no link between intro-ducing a visa regime in bilateral relations and protecting the borderagainst illegal migration from third countries. The visa regime hassignificantly affected legal movement of persons through theSlovak–Ukrainian border, but has done practically nothing to reducethe pressure of illegal migrants from the third countries on the border.However, the attention the Slovak authorities have paid to protect-ing the border with Ukraine since the reform of the border servicesbegan in 1999 has led to a decrease in the number of registered ille-gal activities other than illegal migration committed by personscrossing the Slovak–Ukrainian border. Nor does the visa regime pre-sent an insurmountable obstacle for the Ukrainian citizens seeking


illegal employment in Slovakia. Finally, imposition of the visa regimeagainst Ukraine did not lead to a significant decline in the numberof criminal activities committed by Ukrainian citizens on the territoryof the Slovak Republic.

Consequently, while the economic disruption predicted beforevisas were introduced has not been as extensive as feared, a visaregime limiting access to the ‘new EU’ by citizens of excluded EastEuropean states appears to do little to increase the internal securityof the AFSJ. Many cross-border threats are posed by citizens of thirdcountries, so that improved border protection measures are of greatereffect than visa harmonization policies that can disrupt bilateral rela-tions across borders that often – as in the Slovak–Ukrainian case – runthrough lands that were once in a single state.

Notes

1 For more on the history of relations between Slovakia and Ukraine seeA. Duleba, ‘Slovakia’s Historical and Cultural Relations with Russia andUkraine’, in I. Kempe, W. van Meurs and B. von Ow (eds), The EU AccessionStates and Their Eastern Neighbours (Gütersloh: Verlag Bertelsmann Stiftung,1999), pp. 254–76.

2 The Slovak titles of the treaties are Zmluva o spoloenych státnych hraniciach;Zmluva o rezime na slovensko-ukrajinskych státnych hraniciach, spolupráci avzájomnej pomoci v hranienych otázkach; Dohoda o odovzdávaní a prijímaníosôb cez spoloené státne hranice.

3 Dohoda medzi vládou Eeskoslovenskej socialistickej republiky a vládou Zväzusovietskych socialistickych republík o podmienkach vzájomnych ciest obeanovoboch státov zo dma 17. decembra 1981, Legal Codex of the Slovak RepublicNo. 110/1998, p. 2074. There the special protocol to this agreement inregard to Ukraine was signed.

4 This argument has been raised especially by the Ukrainian side, whichregarded the decision of the Slovak government to re-impose a visa regimewith Ukraine in 2000 as a step returning relations to the pre-1993 past. SeeUkrajina ta Slovaccyna naperedodni vvedenna vizovoho rezymu. Dvostoronnividnosyny ta prykordonne spivrobitnyctvo, Materijaly miznarodnoji naukovojikonferenciji, Uzhorod, 31 travna – 1 cervna 2000 roku, Nacionalnyj InstytutStratehicnych Doslidzen, Friedrich Ebert Stiftung, Slovenská spoloenost’ prezahranienú politiku, Ukrajinskyj Centr Doslidzen Problem MiznarodnojiBezpeky (Uzhorod: Vydavnyctvo V. Padaka, 2000).

5 Slovak title: Dohoda o podmienkach bezvízovych ciest obeanov oboch státovmedzi Slovenskou republikou a Ruskou federáciou/Bieloruskom.

6 For more on the reasons for Slovakia’s exclusion, see A. Duleba,‘Democratic consolidation and the conflict over Slovakian internationalalignment’, in S. Szomolányi and J.A. Gould (eds), Slovakia: Problems of


Democratic Consolidation (Bratislava: Slovak Political Science Association,Friedrich Ebert Stiftung, 1997), pp. 209–30.

7 Programové vyhlasenie vlády Slovenskej republiky, Bratislava, 1998.8 Government of the Slovak Republic, Správa o stave prístupovych rokovaní

Slovenskej republiky s Európskou úniou a nosné úlohy z hl’adiska plnenia nego-ciaenych záväzkov Slovenskej republiky, Bratislava, February 2003.

9 Ministry of Foreign Affairs of the Slovak Republic, Negotiating Position ofthe Slovak Republic. Chapter 24: Co-operation in the Area of Justice and HomeAffairs, Bratislava, 2000.

10 Ibid.11 Commission of the European Communities, ‘1999 Regular Report on

Slovakia’s progress towards accession to the European Union’, COM(1999)511 final, 13 October 1999, p. 50.

12 Government of the Slovak Republic, Koncepcia zosúlad’ovania vízovej poli-tiky SR s vízovou politikou EU, Bratislava, 15 March 2000.

13 See Ministry of Foreign Affairs of the Slovak Republic, Negotiating Position.14 Government of the Slovak Republic, Harmonizácia vízovej politiky Slovenskej

republiky s vízovou politikou Európskej únie, Bratislava, 27 June 2001.15 Správa o stave prístupovych rokovaní, Annex to chapter 24, p. 140.16 Zákon e. 48/2002 Z.z. o pobyte cudzincov.17 Schengensky akeny plan. Slovenská republika. 1. Aktualizované znenie,

September 2002, p. 9.18 Národná obroda, 16 December 1998.19 Národná obroda, 19 January 1999.20 See J. Figel’, ‘Slovensky migraeny fenomén’, Pravda, 2 August 1999.21 SITA, 15 August 1999.22 Sme, 18 October 1999.23 CTK, 3 February 2000.24 Pravda, 16 March 2000.25 For more see A. Duleba, ‘Vzt’ahy s Ukrajinou na bode mrazu’, Profit, 46

(2000).26 J. Rylae, ‘Skúsky, premeny a predsavzatia. Ukrajina: devät’ rokov nezávislosti –

devät’ rokov pozitívnych zmien’, Pravda, 24 August 2000.27 See A. Duleba (ed.), Ukrajina a Slovensko: Hiadanie spoloenych zaújmov

(Bratislava: Vyskumné centrum Slovenskej spoloenosti pre zahranienúpolitiku a Friedrich Ebert Stiftung, 2001), pp. 30–41; Government of theSlovak Republic, Návrh na uzavretie medzivládnej dohody s Ukrajinou o lib-eralizácii vízového rezimu formou vymeny nót, Bratislava, 24 January 2001.

28 M. Kolcar, ‘Boj s nelegálnou migráciou a spolupráca s Ukrajinou’, inDuleba, Ukrajina a Slovensko, pp. 48–54, here p. 50.

29 The author would like to express his thanks to the Border and AliensOffice of the Police Corps of the Slovak Republic for its kind help andcooperation in collecting the data that made this analysis possible.

30 For more about the ‘visa debate’ between Ukraine and Slovakia see Ukrajinata Slovaccyna.

31 Office of the Border and Aliens Police, Presidium of the Police Force of theSlovak Republic, March 2003.


32 Ibid.33 This information has been provided by the Customs Directorate of the

Slovak Republic by letter sent on 13 February 2002 following the author’spersonal application submitted in written form on 22 January 2002.

34 For more about the Slovak visa debate see Duleba, Ukrajina a Slovensko,pp. 19–21, 35–41.

35 See European Commission, ‘1999 Regular Report’ p. 50.36 Office of the Border and Aliens Police, Presidium of the Police Corps of

the Slovak Republic, March 2003.37 Dohoda medzi vládou Slovenskej republiky a vládou Ukrajiny o vzájomnom

zamestnávaní obeanov, Legal Codex of the Slovak Republic No. 110/1998,p. 2074.

38 The author’s special thanks belong to representatives of the InternationalRelations Department of the National Labour Office of the SlovakRepublic for their kind cooperation in collecting data presented in thispart of the study.

39 See P. Ondera, ‘Skryté riziká ilegálnej migrácie’, Informaeny bulletin,No. 48, Bratislava, Slovenská informaena agentura, 1997.

40 Národná obroda, 26 January 1999; Hospodárske noviny, 5 February 1999;Pravda, 9 June 2000.

41 National Labour Office of the Slovak Republic, Skrytá nezamestnanost’a boj s nelegálnou prácou, Bratislava, April 2003.

42 See Government of the Slovak Republic, Návrh opatrení zameranych navyhl’adávanie a potieranie nelegálnej práce, vrátane vyhodnotenia doterajsiehopostupu, Bratislava, 2001; Government of the Slovak Republic, Informaenáspráva o vyhl’adávaní a potieraní nelegálnej práce za II. polrok 2001, Bratislava,2002; Government of the Slovak Republic, Informaená správa o vyhl’adávanía potieraní nelegálnej práce za I. polrok 2002, Bratislava, 2002.

43 Office of the Government of the Slovak Republic, Nezamestnanost’ naSlovensku, Bratislava, 2002.

44 Government of the Slovak Republic, Správa o plnení úloh vyplyvajúcich zkomplexného programu boja so zloeinnost’ou, Bratislava, 9 May 2001, p. 20.

45 Government of the Slovak Republic, Správa o bezpeenostnej situácii vSlovenskej republike za rok 2001, Bratislava, 13 March 2002, p. 12.

46 Migration Office of the Slovak Republic, December 2001.


89

5Justice and Home Affairs and the EU’s New Neighbours:Governance BeyondMembership?Sandra Lavenex

Introduction

At the same time as the new EU member states are gradually movingfrom being passive receivers of EU policies to full members of thearea of freedom, security and justice (AFSJ), the external effects ofEuropean integration are increasingly becoming felt beyond the newexternal borders. The shift of the Schengen border will have directimplications for the EU’s new neighbours, their populations, theireconomies and their own border regimes. Much like the Central andEastern European countries (CEECs) in the early 1990s, these newneighbours are gaining a pivotal role in the internal/external securitynexus of justice and home affairs (JHA) cooperation. Russia, Ukraine,Moldova and Belarus are now the potential source of the ‘soft’ secu-rity threats that are at the heart of justice and home affairs, both ascountries of origin and, probably more importantly, transit countriesfor irregular migrants, drug dealers, those involved in organizedcrime or even terrorists.

While the prospect of eastern enlargement may be seen as a majormotive behind the deepening communitarization of JHA, this newinterdependence, and indeed vulnerability, has not left the Unionunaffected, and is gradually being translated into an extensive external

relations agenda in JHA. This chapter analyses this evolving agendaas an attempt at external governance by the EU and its memberstates that seeks to bind non-member states to the internal policiesof the Union. Although it replicates many of the features analysed bythe other chapters, this external governance agenda lacks the lever-age of the promise of membership. It may thus require alternative‘carrots’ to encourage abidance to rules which have been decided byothers, and which may sometimes require unpopular measures.

This chapter starts with a review of the external effects of the EU’snew eastern borders on neighbouring countries and on their ownborder regimes and cross-border relations. Turning to the EU’s per-spective, it goes on to discuss how the new neighbourhood affectsthe perception of internal security priorities in the enlarging Union,thereby shaping the EU’s JHA agenda. How this agenda has reactedto new geopolitical circumstances is at the heart of the third section,which scrutinizes the various initiatives that have been developed tocommit the EU’s new neighbours in the governance of the AFSJ. A new framework for engaging the neighbouring countries in suchfar-reaching cooperation has recently been launched with the ‘WiderEurope’ initiative, which will be briefly discussed before the chapterconcludes with some reflections on the dynamics and the limits ofexternal governance in JHA.

Beyond the eastern border: external effects of EU enlargement

The previous chapters of this book have already indicated some ofthe ways in which the new external border is affecting neighbour-ing countries and their relations with the new member states in par-ticular and the Union in general. Problems arising from the erectionof ‘hard borders’ include economic disruption caused by negativeeffects on trade flows or regional development; the issue of ethnicminorities living across states’ territorial borders; and more generallythese countries’ geopolitical space as the European borderland andgateway to Asia. Apart from the Soviet legacy, territory and bordershave always been sensitive issues in these countries. Belarus,Moldova and Ukraine are classic borderlands which have beenmoved back and forth between neighbouring countries in the past:Belarus between Russia and Poland, Moldova between Russia and


Romania, and Ukraine, whose name means originally ‘march’ or‘border area’,1 between Russian, Austro-Hungarian, Polish and Sovietdomination before regaining independence in 1991.

The legacy of past territorial rule and population movements is feltfrom the Russian borders with the Baltic states in the north, throughUkraine’s and Belarus’s relations with Poland, to Moldova’s ties withRomania in the south, and fits uneasily with the Schengen regime.

The view from Moscow

Viewed from Moscow, the first sensitive border issue affected by theSchengen regime is the borders between the Baltic states and Russiawhere, in spite of many years of negotiations, border demarcationagreements were still not in force by 2003.2 Nevertheless, promptedby the obligation to align themselves to the Schengen acquis, theBaltic states became the first candidate countries to introduce visarequirements for the citizens of Russia, Belarus, Ukraine and Moldovain 1993 and 1994. This principally affected the large Russian orRussian-speaking minorities living in the Baltic states, especially inEstonia and Latvia, where they comprised 35 and 40 per cent of therespective total populations.3 With EU enlargement, these peoplehave become part of the EU, although many of them lack the citi-zenship of their country of residence. At the same time, however,they have in some respects been cut off from their Russian home-land. One salient example is the Narva–Ivangorod border betweenEstonia and Russia, where Russian communities are living directlyalongside each other. Crossing the border to Russia and vice versa hasbecome a major undertaking, and, even with all necessary documents,may take several hours.

Another sensitive border issue concerning Russia as well as Lithuaniaand Poland is Kaliningrad, which has now become a Russian exclavesurrounded by EU member states. After several years of tense negoti-ations on the issue of how to regulate transit travel between theRussian mainland and the Kaliningrad oblast (district), a preliminarysolution was eventually reached at the EU–Russia Summit inNovember 2002.4 The result was the facilitated transit document(FTD), which became operational on 1 July 2003. Equivalent to amultiple-entry transit visa, the FTD can be obtained by applicationfrom a Lithuanian consulate at lower costs than a normal visa. Forsingle train trips, the facilitated rail travel document (FRTD) will be

EU’s New Neighbours 91

introduced, which may be obtained at the time of ticket purchasesubject to a special examination procedure by the Lithuanian author-ities. Although cheaper and easier to obtain than a Schengen visa,the FTD is nevertheless a major impediment to intra-Russian traveland, in particular for people living at a distance from a Lithuanianconsulate, is also coupled with significant transaction costs. From aRussian perspective, it represents an infringement of national sover-eignty. Moreover, the fact that the EU negotiators made concessionsfrom a fully fledged visa regime contingent on Russia’s consent tosigning a readmission agreement shows the asymmetry of currentpower relations.

The view from Kyiv and Minsk

As discussed in Chapter 3, the transformation of the Polish–Ukrainianand, to a lesser degree, also the Polish–Belarusian frontier cuts throughborder regions which have developed dynamically over the last15 years, and where cross–border trade and small business havebecome a crucial factor for regional economic development.5 Severalhundred thousand Ukrainians work in neighbouring countries,although often in precarious conditions. Many of them move backand forth between their home country and the places where theyfind work, often in the form of short-term jobs, leading to whatscholars have coined ‘pendular’ migration.6 Others have used thecommon Schengen space to move as far away as Portugal. Here, achain migration has developed, with Portuguese construction workersmoving to German construction sites and (even cheaper) Ukrainianworkers filling their jobs in Portugal.

In contrast to the governments of the Baltic states, where the adop-tion of the Schengen visa regime met little resistance, Polish élites aremore strongly opposed to what many consider a cut through a com-mon cultural homeland (in particular the region of Galicia in westernUkraine). Rather than adopting the Schengen rules, Poland in June1996 signed an agreement on visa-free travel with Ukraine and post-poned the introduction of the visa for nearly as long as the EU wouldtolerate it, that is, until shortly before accession. As late as 2001,Slovakia also introduced a simplified visa regime with Ukraine. Apartfrom trade and economics, cultural links present a major dilemma,with nearly 400,000 ethnic Poles living in Belarus (mainly in theHrodna and Brest Regions) and 200,000 in western Ukraine.7


The view from Chisinau

Moldova is the poorest country in Europe, and is ‘still concernedwith the most elementary of state-building problems’.8 Like Belarus,Moldova is a new post-Soviet state, and since much of it was previ-ously part of Romania, national identity remains unsettled. Anattempt to reunify with Romania in the early 1990s unleashed a civilwar which resulted in the secession of the largely Russian-populatedTransdniester region, with a separatist government which now con-trols 12 per cent of the territory. According to Löwenhardt, Hill andWhite, one-third of the Moldovan workforce lives and works abroad,most of them illegally.9 With more than 60 per cent of the Moldovanpopulation speaking Romanian, the launch of accession negotiationsbetween Romania and the EU spurred fears of being isolated fromEurope, and prompted many Moldovans to acquire dual Moldovanand Romanian citizenship. Romania’s open border regime withMoldova was one of the main reasons why Romanian citizens werethe last to still require a visa for the Schengen area. In exchange forvisa-free travel to the Schengen states, Romania imposed a passportrequirement on Moldovan citizens in July 2001.

These are just some of the dilemmas posed by the eastwards shift ofthe Schengen borders. Others concern the large ethnic Hungarianminorities living not only in current and future member states(approximately 60,000 in Austria, 1.6 million in Romania, 567,000 inSlovakia), but also in Serbia (around 345,000) and Ukraine (180,000).10

Whereas these disruptive effects can be seen as unintended conse-quences of the EU’s JHA acquis, the Union has recently moved towardsa much more proactive stance vis-à-vis its eastern neighbours, and isgradually seeking to involve them actively in its JHA agenda.

The foreign policy dimension of JHA

Justice and home affairs, traditionally core issues of domestic politics(as the term suggests), have developed a dynamic foreign policyagenda over recent years.11 This foreign policy agenda is an attemptto bind third countries to EU policy goals in the internal securityfield, and is particularly important when dealing with states that arecountries of origin or transit of problems such as irregular migrantsor organized crime. While the last section highlighted the unintended


external effects of moving the Schengen area eastwards to the bordersof the EU’s new neighbours, this section turns to more purposefulactivities by the Union and its member states that seek to includethese neighbours in parts of what has become the JHA acquis. It willfirst present the broader framework of external relations in JHAbefore scrutinizing its actual propagation to the EU’s new easternneighbours in the next section.

Although not explicitly listed in the EC Treaty, this foreign policydimension has been gaining steadily in importance since theAmsterdam Treaty and now forms one of the main focuses of JHAcooperation. Today, it includes four aspects. The external dimensionof migration policy is aimed at the effective control of the EU’s exter-nal borders, and includes the signing of readmission agreements withcountries from which migratory flows originate. With regard to policeand judicial cooperation in criminal matters, third countries will besystematically involved in the fight against specific forms of crimesuch as financial crime, money laundering, corruption and traffickingin human beings. The third dimension of foreign policy cooperationin JHA concerns the fight against drug trafficking; and the fourth thestrengthening of non-military aspects of crisis management andsecurity through police cooperation in crisis regions.12

While the Amsterdam Treaty provided the basis for linking JHAconcerns with the general external relations of the European Union,attempts to expand the scope of JHA instruments beyond the circleof the member states date from the early 1990s, and have been prop-agated by both EU institutions and the intergovernmental Schengengroup. From the point of view of the European Commission and theEuropean Parliament, a foreign policy dimension was proposedspecifically for the fields of refugee and immigration policy. The pur-pose then was to complement the focus on immigration control andthe fight against fraudulent asylum claims that was predominant inthe Schengen group and ‘third-pillar’ cooperation with a preventivestrategy which would tackle the root causes of forced migration incountries of origin.13 While these proposals were not taken up by themember states, another approach was put forward which may betermed an ‘externalization strategy’,14 and which essentially consistsin the externalization of traditional tools of domestic or EU migra-tion control through their export to third countries. As early as 1991,the member states and the Schengen Group started to negotiate


readmission agreements with neighbouring countries and to engagein cooperation in the field of border security.15 These endeavoursgained political approval in 1992, when the Declaration of theEdinburgh European Council recommended that member states‘work for bilateral or multilateral agreements with countries of originor transit to ensure that illegal immigrants can be returned to theirhome countries …’.16 Soon, the candidate countries of Central andEastern Europe as well as the Baltic states became the main focus ofexternal policy cooperation, and the targeted export of specificinstruments was replaced by the general obligation to adopt the JHAand Schengen acquis in full.17

While the CEECs thereby became insiders of the AFSJ, the externaldimension of JHA shifted to the countries beyond the new external border, especially in Eastern and South-eastern Europe, butalso in the Mediterranean. After the communitarization of parts ofthe JHA acquis in the Amsterdam Treaty, the external dimension wasofficially embraced by the Special European Council on Justice andHome Affairs in Tampere in 1999 which stipulated that JHA concernsshould be ‘integrated in the definition and implementation of otherUnion policies and activities’, including external relations.18 Themain guidelines for this programme were laid down in a reportwhich the EU heads of state or government formally adopted at the2000 Feira European Council.

This development of a foreign policy agenda reflects the fact thatin the emerging AFSJ, threats are increasingly seen to arise from out-side the Union; ‘internal security’ problems are thus being turnedinto questions of external security, but are dominated by domesticpolitical concerns. This externalization of JHA issues has been paral-leled by a deflation of the internal impetus for policy harmonizationbetween the member states,19 and has turned into the most dynamicaspect of this cooperation. In this context, the communitarization ofasylum and immigration matters has provided a welcome instrumentfor increasing leverage vis-à-vis third countries. With its new com-petencies, the EU can now negotiate as a unified actor with non-member states, and use its economic and political weight to influencethe behaviour of non-member states. For instance, with reference to the return of irregular migrants, the Commission has recentlypointed out that ‘as readmission agreements are solely in the interestof the Community, their successful conclusion depends very much


on the “leverage” at the Commission’s disposal. In that context it isimportant to note that, in the field of JHA, there is little that can beoffered in return …’ Therefore, the ‘possibility of increasing comple-mentarity with other Community policies in order to help achievingthe Community’s objectives in the field of return and readmission’should be considered.20

JHA in relations with the new eastern neighbours

With eastern enlargement Russia, Ukraine, and, to a lesser degree, alsoBelarus and Moldova have become priority countries for externalrelations in JHA. This comes perhaps as no surprise when one looksat the geography of the enlarged EU. The external border as ‘guardian’of the AFSJ now extends roughly 2500 km with Russia, 1250 km withBelarus, 1150 km with Ukraine and 450 km with Moldova. There is agrowing feeling of the interdependence and even vulnerability21 ofthe open Schengen area towards the ‘zones of turmoil’22 at its easternborders. A growing gap between a prospering EU and the countries onits eastern and southern borders may exacerbate internal securityrisks on both sides of the new borders. According to the Commission,

interdependence – political and economic – with the Union’sneighbourhood is already a reality. … Closer geographical prox-imity means the enlarged EU and the new neighbourhood willhave an equal stake in furthering efforts to promote trans-nationalflows of trade and investment as well as even more important sharedinterests in working together to tackle transboundary threats – fromterrorism to air-born pollution.23

Apart from steep and probably deepening socio-economic dispari-ties, the open border regime between Russia and almost all CIS coun-tries is viewed as making the region a transit area for irregularmigrants from further east and south, and hence a major threat tothe management of the external border. The activities of traffickersdealing with illicit drugs and/or human beings just add to this per-ception, as do money laundering and international crime.24 The lackof experience and resources, and the weakness of legal and adminis-trative procedures for dealing with these problems, are further rea-sons why the EU has developed a proactive stance and is exporting


parts of what has become the JHA acquis to its eastern neighbours.25

These activities are reviewed below.

JHA cooperation with Russia

EU relations with Russia are regulated by three sets of instruments:the Partnership and Cooperation Agreement (PCA), the Tacis pro-gramme, the Common Strategy and the specific JHA Action Plans.The evolution of these instruments since their inception in the sec-ond half of the 1990s shows a clear shift of emphasis from economicgoals and military security and environmental concerns (especiallynuclear weapons and nuclear power) towards JHA and, more specifi-cally, border control and the fight against irregular immigration andorganized crime.

The PCA with Russia came into force in December 1997 anddefines a country-specific framework of cooperation. Concluded foran initial period of ten years, it establishes the institutional frame-work for bilateral relations, sets principal common objectives, andcalls for activities and dialogue in a number of policy areas. It was,however, only after the adoption of the Amsterdam Treaty that JHAreceived a prominent position in this cooperation. This first step inthis direction was the adoption of the Common Strategy for Russiaat the European Council meeting in Cologne in June 1999.26 Themain aim of this strategy is to engage Russia in more far-reachingcooperation and to support reforms in political, social and economicareas. In general terms, consolidation and reinforcement of the ruleof law is one of the principal objectives. In JHA more specifically, theCommon Strategy contains provisions on judicial and police cooper-ation in the fight against organized crime, money laundering, trafficking in human beings and drug trafficking.27 Implementationof the Common Strategy takes place in the framework of the PCAand its institutions.

On the basis of the country strategy, the EU adopted a more detailedAction Plan against organized crime in Russia.28 The Action Plan wasapproved by Russia at the Cooperation Council meeting in April2000 and is now the priority instrument for JHA cooperation. Thethematic priorities mentioned in the document include financialcrime such as money laundering; trafficking in persons, drugs andexplosives; and stolen property, corruption and illegal immigration.Judicial cooperation involves the adoption of relevant international


instruments and the identification of contact points and exchangeprocedures with EU judicial agencies, while law enforcement con-centrates on enhancing the training of law enforcement officials, theestablishment of a framework for the exchange of technical, opera-tional, strategic and intelligence information, and setting up exchangeprogrammes and strengthening border controls.29

One focus of these activities is negotiations on the conclusion of areadmission agreement for irregular migrants, which – faced withRussia’s reluctance – were linked with the resolution of the conflicton transit rules for Kaliningrad. Apart from that, meetings and coop-eration have developed at several levels of the JHA architecture.During the Swedish Presidency, a ministerial meeting at Troika levelwas organized to discuss the implementation of the Action Plan,which is now backed by regular meetings at the level of liaison offi-cers. At the judicial level, Russian prosecutors have been invited tojoin meetings of the European Judicial Network, and Russian dele-gates are now regular guests in pertinent conferences and seminarsorganized by the EU.30

The financial and technical aspects of this cooperation are mainlycovered by the Tacis national and regional (Tacis CBC) programmes.When Tacis was initiated in 1991, technical assistance was a stand-alone activity that covered mainly economic transformation. Since1996, and in particular the new Council Regulation of December199931 and the Tacis Regional Cooperation Strategy Paper for2004–2006,32 JHA has figured prominently as one of three themes inthis cooperation, together with sustainable management of naturalresources and promoting trade and investment flows. Within JHA, themain financial contributions are directed toward measures againstorganized crime (mainly trafficking in drugs and human beings, butalso money laundering) and border management, while the manage-ment of asylum and immigration has hitherto received only about6 per cent of Tacis regional JHA funds.33

Apart from these bilateral relations between the EU and Russia, JHAcooperation is also promoted at the regional level in the so-calledNorthern Dimension Initiative (NDI) which provides a regional frame-work for enhanced cooperation between eleven North Europeancountries, including the three Baltic states, Poland and Russia.34 Thestated objective of this Initiative, which was originally sponsored bySweden and Finland, is to address the special regional development


challenges of Northern Europe, to create security and stability in theregion, protect the environment, and avoid the emergence of newdividing lines as more countries join the Union. In the field of JHA,the Task Force on Organized Crime was set up by the Baltic Sea StatesSummit in Visby in 1996 and is supported by all countries of theNorthern Dimension. The Task Force (often referred to as the ‘VisbyGroup’) initiates and coordinates joint law enforcement activities,including police, customs, border police and prosecutors. The groupalso deals with and coordinates action on illegal migration, moneylaundering, stolen cars, highly taxed goods, trafficking in women,drugs and corruption.

In the literature, the NDI has been praised as a model of postmodern,deterritorialized ‘network governance’ and an example of regionbuilding at the EU’s porous external borders.35 The main reason forthis positive evaluation is the holistic approach towards regionaldevelopment adopted by the Initiative, and its egalitarian participa-tion mechanisms. Although originally only a minority of the statesinvolved were EU members, since enlargement Russia has becomethe only non-member state in this multilateral framework. This couldgradually transform the NDI from a truly multilateral to a bilateralEU–Russia cooperation framework.

JHA cooperation with Ukraine

The Partnership and Cooperation Agreement (PCA) between the EUand Ukraine was signed on 14 June 1994, ten days before the onewith Russia. After the Agreement entered into force in 1998, the EUadopted a Common Strategy on Ukraine in December 1999.36 TheStrategy describes the relationship with Ukraine as a ‘strategic part-nership’ and identifies three principal strategic goals for the EU withregard to Ukraine: support of the democratic and economic transi-tion process in Ukraine; cooperation on ensuring European stabilityand security in meeting common challenges on the European conti-nent; and increased economic, political and cultural cooperation, inparticular in the context of EU enlargement and in JHA. The explicitinclusion of JHA among the main priorities in the EU’s relations withUkraine was one of the key innovations of the Common Strategy.Although some provisions concerning JHA were already included inthe PCA,37 the Common Strategy documents the increasing impor-tance of JHA after the Amsterdam Treaty and its expanding external


dimension. This is also reflected in the evolution of the Tacisprogramme which, since the new regulation of 1998, has focused onUkrainian border management as one of its priorities. Apart fromborder management, JHA issues also include the fight against irregu-lar immigration, asylum issues, smuggling and trafficking of persons,drugs and arms and terrorism. In December 2001, the EU Action Planon Justice and Home Affairs in Ukraine38 was adopted, and the fifthCooperation Council in March 2002 identified the negotiation of anEU–Ukraine readmission agreement, improved border management,immigration, judicial reform, the rule of law, organized crime andterrorism as the principal priorities. In order to ensure implementa-tion, a scoreboard was agreed as well as regular meetings at ministerialand official level.

These endeavours have already shown some tangible results. InFebruary 2001, the Ukrainian parliament passed a law ‘On AmendingSome Legal Acts of Ukraine for Fighting Illegal Migration’ whichintroduced criminal liability for repeated illegal border crossings.Also, the Criminal Code introduced criminal liability for organizingor managing trafficking in human beings. In the same year, a newlaw ‘On Immigration’ was passed, which introduced an annualimmigration quota and established a single national executiveagency for migration. Changes are also visible at the Ukrainianborder with Poland, where Ukrainian border guards have started dis-mantling the remainders of the old Soviet-time barbed-wire infra-structure and, since June 2001, have engaged in cooperation withPolish border guards in order to control jointly the EU’s new externalborder. These developments do not leave Ukraine’s own neighboursunaffected. On the one hand, as with Russia, the EU’s endeavours tosign a readmission agreement with them prompted Ukraine to signreadmission agreements with their own eastern and southern neigh-bours in order to ensure the expulsion of irregular migrants. On theother hand, these developments imply a fundamental transforma-tion of the liberal travel regulations which originated from the Sovietera. In June 2001, Ukraine adopted a resolution according to whichcitizens of all CIS countries except Russia and Belarus need a validforeign passport to enter Ukraine. In interpreting these develop-ments, it is important to note that in contrast, for example, to Russiaand Belarus, Ukraine has stipulated its strategic aim of becominga ‘full-fledged EU member’.39


JHA cooperation with Belarus and Moldova

As successors of the former Soviet Union, Belarus and Moldova wereincluded in the same framework of cooperation with the EU as theirbigger neighbours Russia and Ukraine. With Belarus, negotiations ona PCA were concluded in 1995, but the adoption and implementa-tion of the Agreement were halted due to political developmentsunder President Lukashenka. Nevertheless, cooperation was not com-pletely stalled and continued in those areas which are given particularpriority by the Union. In this respect, the Annual Reports of the Tacisprogramme are revealing. Although Belarus had been suspendedfrom enhanced strategic cooperation, it has been participating in anInter-state and Cross-border Cooperation programme financed byTacis which covers activities relating to border control.40

The PCA with Moldova was negotiated at the same time as thosewith Russia, Ukraine and Belarus, and entered into force in July 1998.Three years later, the Commission adopted the Moldova CountryStrategy Paper (CSP), which provides the strategic framework withinwhich EU assistance will be provided for the period 2002–2006.Noting that instability in Moldova could easily spill over into theUnion, the Strategy Paper states that ‘the EU will contribute throughits cooperation to fighting crime, corruption, smuggling and illegalmigration’.41 The priority given to JHA is also salient in the TacisIndicative Programme 2002–2003, included in the same document,which lists as specific good governance objectives first the ‘creationof an anti-corruption policy and programme aiming at establishing acomprehensive network on this issue, including relevant legislation,institution building, prevention, awareness raising and enforcement’and second the ‘development of an anti-money laundering regime,in particular creation of appropriate legislation and of a FinancialIntelligence Unit (FIU)’. Improvement of the business environmentor of available information for poverty assessment and monitoringand environmental degradation follow in the list.42

Other initiatives

Although, generally speaking, EU activities in JHA have hithertofocused on the bigger countries Russia and Ukraine which, sinceenlargement, have borders with EU member states, it is importantto note that intense cooperation takes place outside the formal


institutions of the EU in more or less informal inter- or transgovern-mental fora. Probably the most influential forum promoting cooper-ation in border security and the fight against illegal immigration,including trafficking in human beings, is the so-called BudapestGroup, which was launched on German initiative in 1993 and hasevolved into a pan-European cooperation framework. The interiorministries of 40 countries as well as various international organiza-tions participate in this forum.43 Increasingly, the Budapest Grouptackles migration control problems in countries such as Russia,Ukraine and Moldova that neighbour the EU’s new member and can-didate states, and a special working group has been set up for them.44

Apart from the Budapest Group, there is also a proliferation ofregional initiatives dealing with issues related to internal and externalsecurity. One example is GUUAM, named after its member states(Georgia, Ukraine, Uzbekistan, Azerbaijan, Moldova), which was cre-ated in Vienna in 1996. Its Agreement on Cooperation provides forboth bilateral and multilateral activities in the fight against terrorismand organized crime, including cooperation on border and customscontrol issues and the introduction of a unified data exchange systemin antiterrorism activities.45 It is interesting to note that the mainsponsor of GUUAM’s activities is not the EU or some of its memberstates, but the USA.

The ‘Wider Europe’ initiative: towards a newneighbourhood policy?

The bilateral and sometimes uncoordinated cooperation frameworkspresented above have become subject to a new EU initiative in 2003,the ‘Wider Europe’ initiative which seeks to formulate a holisticmultilateral approach to the EU’s new neighbours based on the prin-ciples of partnership and cooperation. Although motivated largely bythe wish to develop a more coordinated and coherent strategy towardsthe different neighbouring countries, this initiative was also spurredon by the realization of the potential negative effects of enlargementon these countries and the desire to prevent the creation of ‘sharpedges’ in Europe.46

Although the fact that the Union’s future neighbours would beaffected by the forthcoming enlargement emerged at different pointsin the enlargement negotiations with the Central and Eastern


European countries, it was only in 2002 that the EU explicitlyaddressed the issue. In April 2002, the General Affairs Councilrequested the Commission and the High Representative for CommonForeign and Security Policy to ‘work up ideas on the EU’s relationswith its neighbours’. Six months later, the work was launched, focus-ing on Ukraine, Moldova and Belarus. This initiative was backedat the highest political level by the EU heads of state and governmentmeeting at the December 2002 Copenhagen European Council,which confirmed that the Union should enhance relations with itsneighbours in order to ‘avoid new dividing lines in Europe and topromote stability and prosperity within and beyond the new bordersof the Union’. Apart from the three countries mentioned above,these conclusions also called for the inclusion of Russia as well as theSouthern Mediterranean countries47 in this enhanced cooperation,meaning that it should embrace all neighbouring countries thathad no prospect of EU membership.48 Based on these initiatives, theCommission drafted a strategy paper entitled ‘Wider Europe –Neighbourhood: a new framework for relations with our eastern andsouthern neighbours’, which sets out the guidelines for this enhancedcooperation. These proposals were welcomed by the subsequentEuropean Council meeting in Thessaloniki in June 2003, in whichthe EU heads of state or government declared their will to‘reinforce … shared values and promote … common interests … [by]developing new policies toward Wider Europe’.49

Recognizing the existing interdependence between the Union, itsnew member states and neighbouring countries, this new initiativeopens up the possibility of the most extensive association below thethreshold of membership: ‘all the neighbouring countries should beoffered the prospect of a stake in the EU’s internal market and furtherintegration and liberalization to promote the free movement ofpersons, goods, services and capital’. At the same time, the EU expectsthese countries to come into line with its own structures, including‘demonstrating shared values and effective implementation of polit-ical, economic and institutional reforms, including aligning legisla-tion with the acquis’.50

In so far as a preliminary assessment of this very recent initiative canbe made, the available documents suggest a slightly different approachto external JHA cooperation which encompasses both the EU’s priori-ties of securing its external borders and the neighbouring countries’


ambitions to have access to the common market. Highlighting theAction Plans concluded for Russia and Ukraine as a model for coop-eration in preventing and combating common security threats suchas terrorism, organized crime, customs and taxation fraud, the WiderEurope initiative also calls for a facilitation of lawful migrationincluding, as a long-term objective, free movement of people andlabour, and the promotion of human rights. In institutional terms,the Wider Europe initiative seeks to provide a ‘differentiated, pro-gressive, and benchmarked approach’ that would build on formalassociation treaties and their respective institutional frameworks in along-term perspective. Although the Commission Communicationand the Council’s reaction to it51 show that the understanding behindthe inclusion of the neighbouring countries – exchanging marketaccess for cooperation in areas of interest to the EU countries, such assecurity – is a conditional one, the Commission explicitly calls for abenchmarking approach that would ‘offer greater predictability andcertainty for the partner countries than traditional “conditionality” ’.Furthermore, these benchmarks should not be dictated unilaterallybut ‘wherever possible should be developed in close cooperationwith the partner countries themselves’ and with the assistance ofrelevant international organizations.52

Conclusion: external governance in JHA

While the prospect of eastern enlargement and the determination tobind the new member states to the internal security agenda boostedthe communitarization of JHA, the EU’s new neighbourhood hasboosted the development of a foreign policy dimension to this coop-eration. Dictated by fears that ‘soft security’ risks would spill acrossthe new external border into the AFSJ, this strategy has hitherto con-sisted of efforts to export concepts and instruments developed insidethe Union to neighbouring states. This can be described as an attemptat external governance, whereby the EU tries to bind non-memberstates to internal policies in whose elaboration the latter have notparticipated.

This attempt at external governance is in many respects comparablewith the enlargement strategy applied towards the new member states.Although the new set of neighbours will not qualify for membership,the content of this cooperation has basically followed an EU-led


agenda, with cooperation and concessions occurring on the basis ofconditionality.53 Throughout, the instruments adopted towards theeastern neighbours apply a conditional approach where financialcontributions, access to EU markets and other support is madedependent on the fulfilment of goals defined by the EU.54 It thereforecomes as no surprise that

priorities of the EU … have however not always coincided withthose of the NIS55 countries. In effect, while donors have beeninterested in strengthening the western borders of NIS countriesin order to stem the flow of illegal migrants from moving furtherwest, the priority of the NIS countries has been to reduce the flowof illegal migrants entering through their eastern borders.56

The Wider Europe initiative, and the far-reaching association pro-posed therein, may thus be an attempt to redress the hitherto unilat-eral and EU-dominated focus of neighbourhood relations and toestablish a framework within which the negative consequences of EUenlargement could be mitigated. Viewed from a different perspective,however, this initiative might also be an attempt to find a substitutefor the leverage provided by the promise of membership in shapingJHA regimes in neighbouring countries. In any case, these develop-ments show the wider implications of securing an area of freedom,security and justice within the circle of the member states, first for thecandidate countries, then for their neighbours, and further beyond.

Notes

1 M. Foucher, ‘The Geopolitical European Frontiers’, in M. Anderson andE. Bort (eds), The Frontiers of Europe (London: Pinter, 1998), p. 236.

2 M. Light, S. White and J. Löwenhardt, ‘A Wider Europe: The View fromMoscow and Kyiv’, International Affairs, 76 (2000), 77–88. Border demar-cation agreements between Russia and the Baltic states had been finalizedbut were stalled by the Russian parliament, which failed to ratify them.

3 H. Hubel (ed.), EU Enlargement and Beyond: The Baltic States and Russia(Berlin: A. Spitz Verlag, 2002), p. 2.

4 The Summit Declaration states that the scheme’s operation shall bereviewed no later than 2005.

5 See also H. Grabbe, ‘The Sharp Edges of Europe: Extending SchengenEastwards’, International Affairs, 76 (2000), 519–36; Light, White andLöwenhardt, ‘A Wider Europe’; J. Löwenhardt, R. J. Hill and M. Light,


‘A Wider Europe: the view from Minsk and Chisinau’, InternationalAffairs, 77 (2001), 605–20.

6 E. Morawska, ‘Gappy Immigration Controls, Resourceful Migrants, andPendel Communities: East–West European Travelers’, in C. Joppke andV. Guiraudon (eds), Controlling a New Immigration World (London:Routledge, 2001); C. Wallace and D. Stola (eds), Patterns of Migration inCentral Europe (Basingstoke: Palgrave, 2001).

7 See also J. Cichocki, ‘Direct Neighbourhood: Border Issues and VisaRegulations – an Eastern Perspective’, in I. Kempe (ed.), Beyond EUEnlargement. The Agenda of Direct Neighbourhood for Eastern Europe(Gütersloh: Bertelsmann Foundation, 2001).

8 Löwenhardt, Hill and Light, ‘A Wider Europe’, p. 621.9 Ibid.

10 G. Amato and J. Batt, The Long-Term Implications of EU Enlargement: TheNature of the New Border (Brussels: European Commission, 1999), p. 82ff.

11 For a comparative analysis of the formal and informal, intended andunintended external effects of EU asylum and immigration policies seethe contributions in S. Lavenex and E. Uçarer (eds), Migration and theExternalities of European Integration (Lanham: Lexington Books, 2002).

12 Council of the European Union, ‘European Union priorities and policyobjectives for external relations in the field of justice and home affairs’,7653/00 JAI 35.

13 C. Boswell, ‘The “External Dimension” of EU Immigration and AsylumPolicy’, International Affairs, 79 (2003), 619–38; J. van Selm, ‘Immigrationand Asylum or Foreign Policy: The EU’s Approach to Migrants and theirCountries of Origin’, in Lavenex and Uçarer, Migration and the Externalitiesof European Integration, pp. 143–60.

14 Boswell, ‘The “External Dimension” ’; Lavenex and Uçarer, Migration andthe Externalities of European Integration.

15 Grabbe, ‘The Sharp Edges of Europe’; S. Lavenex, Safe Third Countries.Extending the EU Asylum and Immigration Policies to Central and EasternEurope (Budapest and New York: Central European University Press, 1999).

16 See ‘Declaration on principles governing external aspects of migrationpolicy’, Annex 5 to Part A of the Presidency Conclusions of theEdinburgh European Council, 11–12 December 1992, published in ECBulletin 12, 1992, p. 23.

17 S. Lavenex, ‘Migration and the EU’s New Eastern Border: Between Realismand Liberalism’, Journal of European Public Policy, 8 (2001), 24–42.

18 European Council, ‘Presidency Conclusions’, Tampere European Council,October 1999.

19 On the limping Europeanization of migration and refugee policies seeA. Geddes, Immigration and European Integration: Towards Fortress Europe?(Manchester: Manchester University Press, 2000); S. Lavenex, TheEuropeanisation of Refugee Policies: Between Human Rights and Internal Security(Aldershot: Ashgate, 2001). For a recent critical appraisal of progress infulfilling the Amsterdam agenda in JHA see European Convention,


Praesidium, ‘Justice and Home Affairs – Progress report and generalproblems’, CONV 69/02, 31 May 2002.

20 European Commission, ‘Green Paper on a Community Return Policy onIllegal Residents’, COM(2002) 175 final,10 April 2002, p. 24.

21 On the notions of interdependence, sensitivity and vulnerability seeR. Keohane and J. Nye, Power and Interdependence: World Politics in Transition(Boston: Little Brown, 1977).

22 M. Singer and A.B. Wildavski, The Real World Order: Zones of Peace andZones of Turmoil (Chatham, NJ: Chatham House Publishers, 1993).

23 Commission of the European Communities, ‘Communication on WiderEurope Neighbourhood: A New Framework for Relations with our Easternand Southern Neighbours’, COM(2003) 104 final, 11 March 2003, p. 3,emphasis added.

24 For assessments of ‘soft security risks’ at the EU’s future external borders, seethe contributions in I. Kempe (ed.), Direkte Nachbarschaft. Die Beziehungenzwischen der erweiterten EU und der Russischen Föderation, Ukraine,Weissrussland und Moldova (Gütersloh: Bertelsmann, 1998); I. Kempe andW. van Meurs (eds), Toward a Multi-Layered Europe: Prospects and Risks BeyondEU Enlargement (Munich: Bertelsmann Group for Policy Research, 2002).

25 A related problem which often receives much less attention in the externalJHA agenda is the situation of persons who are in need of protection, andthe difficult task of differentiating between purely economic or voluntary‘irregular migrants’ and genuine refugees. On the intricate relationshipbetween the Union’s internal security agenda and the internationalrefugee regime see Lavenex, The Europeanisation of European Refugee Policies;on the effects of EU policies on the international agency in charge ofrefugee protection, the UNHCR, see J. van Klaauw, ‘European AsylumPolicy and the Global Protection Regime: Challenges for UNHCR’, inLavenex and Uçarer, Migration and the Externalities of European Integration,pp. 33–54.

26 The corresponding document on the side of the Russian government isits ‘Medium Term Strategy for the Development of Relations between theRussian Federation and the EU (2000–2010)’ of November 1999.

27 European Council, ‘Common Strategy of 4 June 1999 on Russia’, OfficialJournal of the European Communities, L 157/1, 24 June 1999 (1999/414/CFSP).

28 European Council, ‘EU Action Plan on Common Action for the RussianFederation on Combating Organised Crime’, Official Journal of theEuropean Communities, 2000/C106/5, 13 April 2000.

29 It seems that some of the priorities of the Action Plan reflect not only JHAbut also potential economic interests of the Union in Russia that mightbe negatively affected by organized crime. This is alluded to in the text ofthe Action Plan when it says on p. 7 that ‘organised crime is increasinglyaffecting legal business and commercial activities conducted between theMember States and the Russian Federation’.

30 Swedish Presidency, ‘Presidency programme concerning external relationsin the JHA field (2001–2002)’, 5146/01 Limite JAI 2, 11 January 2001.


31 Council Regulation No. 99/2000 of 29 December 1999 concerning the pro-vision of assistance to the partner states of Eastern Europe and Central Asia.

32 European Commission, ‘Tacis Regional Cooperation: Strategy Paper andIndicative Programme 2004–2006’, 11 April 2003. See also the ‘TacisProgramme Annual Report 1999, Report from the Commission’,COM(2000) 835 final. Although Belarus has been suspended fromenhanced strategic cooperation, the fact that it did participate in an Inter-state and Cross-border Cooperation programme, covering activities relat-ing to border crossings, shows the importance attributed to this issue.

33 The growing emphasis on JHA has increased over the years: within theregional strategy it increased from 0.5 million euros in 1996 to 11.5 millioneuros in 2002 (compared to 16.5 million euros for environmental coop-eration, which has the biggest budget in Tacis). The 2004–2006 regionalplanning foresees a division of a 49 million euro budget which will bedivided with 55 per cent for organized crime and terrorism, 20 per centasylum and immigration and 25 per cent borders. See EuropeanCommission, ‘Tacis Regional Cooperation: Strategy Paper and IndicativeProgramme. 2004–2006’. In addition, the national Tacis IndicativeProgrammes for Russia foresees another 40 million euros for JHA for2004–2006 (approx. 10 per cent of the overall budget).

34 The member states of the NDI are Denmark, Estonia, Finland, Germany,Iceland, Latvia, Lithuania, Norway, Poland, Russia and Sweden.

35 T. Christiansen, F. Petito and B. Tonra, ‘Fuzzy Politics Around FuzzyBorders: The European Union’s “Near Abroad” ’, Cooperation and Conflict,35 (2000), 389–415; M.S. Filtenborg, S. Gänzle and E. Johansson, ‘AnAlternative Theoretical Approach to EU Foreign Policy: “NetworkGovernance” and the Case of the Northern Dimension Initiative’,Cooperation and Conflict, 37 (2002), 387–407.

36 European Council, ‘Common Strategy of 11 December 1999 on Ukraine’,Official Journal of the European Communities L 331/1, 23 December 1999(1999/877/CFSP).

37 For example, Article 68 on money laundering and Article 79 on drugs.38 European Council, ‘EU Action Plan on JHA in Ukraine of 10 December

2001’, Official Journal of the European Communities, J 2003/C 77/01,29 March 2003.

39 Strategy on Integration of Ukraine to the European Union, approved by Decreeof the President of Ukraine 615/98, 11 June 1998.

40 European Commission, ‘Tacis Regional Cooperation: Strategy Paper andIndicative Programme 2004–2006’. See also the ‘Tacis Programme AnnualReport 1999, Report from the Commission’.

41 European Commission, ‘Moldova Country Strategy Paper’, p. 4.42 Ibid., p. 15.43 Participants are representatives of Albania, Australia (observer), Austria,

Belgium, Bosnia and Herzegovina, Bulgaria, Czech Republic, Denmark,Estonia, Finland, Former Yugoslav Republic of Macedonia, France, Georgia,Germany, Greece, Hungary, Latvia, Moldova, Netherlands, Norway,


Poland, Portugal, Rumania, Russian Federation, Slovenia, Spain, Sweden,Switzerland, Turkey, United Kingdom, Ukraine, Yugoslavia, EuropeanCommission, United Nations High Commissioner for Refugees (UNHCR),International Organization for Migration (IOM), Stability Pact SupportUnit, Inter-governmental Consultations (IGC) and the InternationalCentre for Migration Policy Development (ICMPD), which acts asSecretariat.

44 On the origins and activities of the Budapest Group see Lavenex, SafeThird Countries, and the reports of the Group’s annual meetings athttp://www.icmpd.org/default.asp?nav=budapest&folderid=47&id=244.

45 K. Schelter, Challenges for non- (and Not-Yet-) Schengen Countries, vol. 13,15 March 2003, Geneva: paper presented at the Workshop on ManagingInternational and Inter-Agency Co-operation at the Border, GenevaCentre for the Democratic Control of the Armed Forces, footnote 4.

46 Grabbe, ‘The Sharp Edges of Europe’.47 The Southern Mediterranean group includes a very diverse set of coun-

tries: Algeria, Egypt, Israel, Jordan, Lebanon, Libya, Morocco, PalestinianAuthority, Syria and Tunisia.

48 Therefore, the countries of the Western Balkans are not part of this newinitiative because of their inclusion in the Stabilization and AssociationProcess that will eventually lead to EU membership. The remaining can-didate countries – Turkey, Romania and Bulgaria – and the SouthernCaucasus are also not included.

49 European Council, ‘Presidency Conclusions’, Thessaloniki EuropeanCouncil, June 2003, p. 13.

50 Commission of the European Communities, ‘Communication on WiderEurope – Neighbourhood: A New Framework for Relations with our Easternand Southern Neighbours’, COM(2003) 104 final, 11 March 2003, p. 10.

51 Council Conclusions on Wider Europe - New Neighbourhood of 16 June 2003state that the EU proposal should establish a ‘differentiated frameworkwhich responds to progress made by the partner countries’ (p. 2).

52 Commission of the European Communities, ‘Communication on WiderEurope’, p. 16.

53 On the conditionality approach in relations with the candidate countriessee F. Schimmelfennig and U. Sedelmeier, ‘Theorizing EU enlargement:research focus, hypotheses, and the state of research’, Journal of EuropeanPublic Policy, 9 (2002), 500–528.

54 Thus, the Country Strategy Papers 2002–2006 on Russia and Ukraine stateon p. 19 that financing support to PCA implementation and WTO acces-sion will be conditional on the overall commitment of Russia and Ukraineto making progress on the issues outlined, and that continued commitmentin the approximation of legislation to the EU will be particularly important.

55 NIS is the EU-jargon acronym for Newly Independent States referring tothe Countries of the Commonwealth of Independent States (CIS).

56 Quote from the ‘Tacis Regional Cooperation Strategy Paper’, p. 14.


110

6A New ‘Area of Freedom, Security and Justice’ for theEnlarged EU? The Results of theEuropean ConventionJörg Monar

Introduction

Future historians are likely to regard the European Union’s creationof the ‘area of freedom, security and justice’ (AFSJ), with its large arrayof justice and home affairs (JHA) policy-making areas, as one of themost significant developments in the European integration process atthe beginning of the twenty-first century. This may at first seem aslightly exaggerated statement, but it is supported by the followingthree considerations.

First, the creation of the AFSJ touches upon essential functions andprerogatives of the modern nation-state. Providing citizens withinternal security, controlling external borders and access to nationalterritory, and administering justice have since the gradual emergenceof the modern nation-state in the seventeenth to eighteenth centuryand its theoretical underpinning in the writings of Thomas Hobbes,John Locke, Montesquieu and Rousseau all belonged to the basicjustification and legitimacy of the existence of the state. The fact that since the Treaty of Maastricht (1993) the EU has developed asteadily increasing role in this domain means that it has entered oneof the last domains of exclusive national competence, not by replac-ing the state as a provider of internal security and justice, but by

emerging as an increasingly important additional provider of theseessential public goods.

Second, the AFSJ touches upon a number of very sensitive politicalissues. The fight against crime and illegal immigration, ensuring thatasylum systems are both fair and protected against abuse, and facili-tating access to justice are issues which matter for European citizens.This is reflected in the importance which internal security issues haveacquired in national election campaigns (the last French general elec-tion can be taken as one example among many), and also in opinionpolls which indicate that internal-security-related issues rank veryhigh in European citizens’ concerns. A 2003 Eurobarometer opinionpoll indicates, for instance, that 80 per cent of EU citizens count ter-rorism among their primary fears and 71 per cent of them organizedcrime. A total of 90 per cent of them think that the fight againstterrorism should be one of the priorities of the Union, 88 per centthink the same about the fight against organized crime and drug traf-ficking, and 81 per cent about the fight against illegal immigration.1

This means that by developing its role in this domain the EU isresponding to some fundamental concerns (and expectations) of citi-zens that are more pronounced than in many other policy-makingareas of the EU, including the common foreign and security policy.

Third, the AFSJ has by now not only become a fundamental inte-gration and treaty objective2 but also one of the major areas of‘growth’ of EU action. According to statistics from the EU CouncilGeneral-Secretariat,3 the JHA Council adopted no less than 500 textsin this field from 1 May 1999 (the date of the entry into force of theAmsterdam Treaty) to the end of December 2003. A range of newstructures has also been created, with Europol and Eurojust being onlythe most prominent ones, and in the context of the JHA Council, min-isters of the interior and justice now normally meet on a monthlybasis, which makes the JHA Council one of the most frequently meet-ing Council formations. On two occasions so far (Tampere in October1999 and Seville in June 2002), the Heads of State or Government ofthe Union have dedicated European Council meetings almost exclu-sively to JHA issues. The EU acquis in justice and home affairs is amongthe fastest-growing areas of legal action, and although progress issometimes slow, the EU’s agenda in the JHA domain is now wide-ranging and ambitious to an extent which would have been difficultto imagine at the beginning of the 1990s.

Results of the European Convention 111

Given the importance gained by the AFSJ as a policy-making area ofthe EU, the European Convention, which was entrusted with drawingup a draft constitutional treaty for the EU, obviously had to give con-siderable room to this domain in its work. And so it did: its Presidiumdefined a specific set of questions and challenges in the JHA domain,4

and a special working group (‘X’) then looked at reform needs andmade a range of substantial proposals.5 There were several major, far-reaching initiatives (such as the ambitious Fischer/de Villepin pro-posals of November 2002)6 and, finally, numerous changes and newelements in the AFSJ field were introduced in the final draft of theconstitution adopted by the Convention in July 2003.7

In view of the prominence given to the AFSJ in the work of theConvention, it seems worth asking to what extent the results – thatis, the provisions of the draft constitution – are likely to create a new basis and framework for the AFSJ in the enlarged Union if themember states eventually agree on their adoption. This question isall the more pertinent as the Treaty of Amsterdam, which enteredinto force in 1999, had already brought very extensive reformstogether with a long list of objectives which are still far from beingfully implemented. After an analysis of the content of the proposedreforms, this chapter will provide an assessment of the ‘added value’they are likely to bring with regard to both the current frameworkand enlargement as well as looking at their deficits, and also theprospects for their adoption after the failure of the December 2003Brussels summit.

The new legal framework

By far the most fundamental change the draft constitution brings forthe AFSJ is the recasting of its overall legal framework. The existingdivision between the EU’s three ‘pillars’ is replaced by a single legalframework in a single legal text. This step will remove the existingsplit in the JHA domain between, on the one hand, asylum, immi-gration, border controls and judicial cooperation in civil matters,which currently fall under Title IV of the EC Treaty (the ‘first pillar’)and, on the other hand, judicial cooperation in criminal matters andpolice cooperation which fall under Title VI of the EU Treaty (the‘third pillar’). The formal abolition of the ‘pillar’ division will put anend to the need to adopt ‘parallel’ legislative acts under the different


pillars in certain domains with ‘cross-pillar’ implications (such asmoney laundering), and will reduce the potential for controversiesover the appropriate legal basis. It will also put an end to the artifi-cial separation of decision-making structures between first- andthird-pillar matters in the Council, and will facilitate the negotiationand conclusion of agreements with third countries on cross-pillarmatters. In addition, the new single legal framework also means thatthe Union will be able to act internally and externally8 as a singlelegal actor with a single set of legal instruments, instead of thecurrent division between first- and third-pillar instruments. This willbe an important contribution to a more coherent and clear-cut legalacquis. Combined with this is the abolition of most of the restrictionsand distinctions between the role of the European Court of Justice inthe JHA domain under the two pillars (see below).

Yet the major progress made by the abolition of the ‘pillar’ struc-ture is partially undermined by a number of special provisions for theindividual JHA policy areas. According to Article III-165, the EuropeanCommission will have an exclusive right of initiative for asylum,immigration, border control and judicial cooperation in civil matters,but will have to share the right of initiative with the member statesin police and judicial cooperation in criminal matters. Whereas inthe aforementioned areas (asylum etc.) the draft constitution provideswith one small exception (family law) for qualified majority voting,substantial parts of police and judicial cooperation in criminal mat-ters will still be governed by the existing unanimity requirement.A similar distinction applies to the role of the European Parliament,which is granted co-decision on most of the issues that were previ-ously in the first pillar, but is limited to assent or consultation pro-cedures on quite a number of issues that were previously in the thirdpillar. This means that from an institutional and procedural point ofview, the old ‘pillar division’ will to some extent continue to exist.This ‘hidden’ continuation of the pillar separation could lead toproblems in adopting cross-cutting packages of measures because ofdifferences in the procedures, majority requirements and level ofinvolvement of the Parliament. It also significantly reduces the trans-parency of the provisions relating to the AFSJ and, of course, runscounter to the principle of a single legal framework.

A further weakness of the new single legal framework is theabsence of any clearer definition of the objectives of the AFSJ as


a fundamental treaty and integration objective. As fundamentalpublic goods, ‘freedom’, ‘security’ and ‘justice’ are such broad objec-tives that a somewhat more precise definition of the AFSJ’s aimswould have been highly appropriate. The draft constitution has donethis, for example, for the Common Foreign and Security Policy inArticle I-39. However, Article I-3(2) dealing with the AFSJ containsonly a reference to an EU ‘without internal frontiers’ and establishesa link between the AFSJ and the single market with its ‘free andundistorted’ competition. This is unfortunate and seems slightly mis-leading since the AFSJ, as a political project, has long outgrown theSchengen objective of allowing for the abolition of internal bordercontrols. Its links with the economic aims of the single marketare therefore now of a rather peripheral nature. The language usedhere seems to hark back to the predominantly economic agenda ofthe 1980s, which is rather surprising for the product of a Conventionon the ‘future of the European Union’. The ‘specific provisions’ onthe AFSJ in Article I-41 merely contain some general guidelines for itsconstruction (trust building etc.), and add little to a clarification ofits basic concept and aims. It would appear particularly regrettablethat the draft constitution has missed the chance to spell out theneed for the AFSJ to develop in a balanced fashion, with equal con-sideration given to all three of the public goods – freedom, securityand justice. So far, around 80 per cent of the measures adopted havebeen directly or indirectly linked to internal security – and corre-spondingly few to ‘freedom’ and ‘justice’.

The Charter of Fundamental Rights as part of the legal framework

Taking a broader view of the draft constitution, it fully incorporatesthe Charter of Fundamental Rights in Part II, and this can also beconsidered an integral part of the new legal framework it proposes forthe AFSJ. There can be no doubt that measures in the domain of jus-tice and home affairs affect the fundamental rights of individuals in amuch more direct way than, for instance, most of the single marketmeasures. By fully incorporating the Charter, the draft constitutionclearly creates a better basis for the comprehensive protection offundamental rights at EU level, as well as through constitutional lawin the member states and international legal instruments such as the


European Convention on Human Rights. It is true that one couldconsider certain fundamental rights – such as non-discrimination – tobe adequately guaranteed already by the current EC legal order, butthere are nevertheless still a number of gaps with relevance for JHAmeasures that will be filled by incorporating the Charter ofFundamental Rights in the draft constitution. This applies, in particu-lar, to the right to the protection of personal data (Article II-8), whichis of increasing importance, given the proliferation of databases andexchange systems in the field of the AFSJ (Schengen InformationSystem, Europol, Eurodac, etc.) and the rapidly developing coopera-tion with third countries, such as the Europol–USA agreement ofDecember 2002 which provides for the exchange of personal data.

The judicial rights laid down in Title VI of the Charter ofFundamental Rights are also of considerable relevance for the AFSJ.By including the right to legal aid (Article II-47, last sentence), theprinciple of proportionality between offence and penalty (ArticleII-49(3)) and the right not to be tried or punished twice for the samecriminal offence (ne bis in idem principle, Article II-50), these judicialrights clearly go beyond mere minimum guarantees, such as the rightto effective remedy and defence, or the principles of presumption ofinnocence and of legality. Taken together, they define importantelements of a common approach by member states to criminal justice,and they could well serve as important foundation stones for the grad-ual creation of an EU criminal justice system.

The incorporation of the Charter of Fundamental Rights is alsoimportant for the development of external relations in the JHAdomain. The right to life and the prohibition of the death penalty(Article II-2), the right to the integrity of the person (Article II-3), theprohibition of torture and inhuman or degrading treatment or pun-ishment (Article II-4) and the right to an independent and impartialtribunal previously established by law could clarify, and help tostrengthen, the Union’s position when negotiating with third coun-tries on legal assistance and extradition agreements. It should berecalled here that the problem of the death penalty and the much-criticized US practices in the Guantanamo Bay prison camp wereamong the most difficult issues in the negotiations on the EU–USlegal assistance and extradition agreements signed on 25 June 2003.9

It is also worth mentioning that the preamble of the Charter con-tains a special reference to the AFSJ as one of the elements through


which the Union places the individual ‘at the heart of its activities’.While this sounds acceptable as a general affirmation of good will,one might have wished for a slightly stronger reference to the factthat JHA cooperation in the context of the AFSJ can, and should, actu-ally make a contribution to the effective protection of the Charterrights within the EU. It should also be noted that the draft constitu-tion does not provide for the right of individuals to bring directactions before the Court of Justice on fundamental rights issues. As aresult, the protection of fundamental rights by the Court will normallybe exercised via the preliminary rulings procedure, which requirescases first to be brought before national courts.

The revised policy-making objectives

The first thing to note about the policy-making objectives of justiceand home affairs cooperation is that the draft constitution maintainsthe Treaty of Amsterdam approach of providing detailed lists of indi-vidual objectives for each of the main policy-making areas whichalmost read like legislative programmes. This is regrettable. First ofall, it is most unusual for constitutional texts to include such detailedprogrammatic elements as these can quickly become outdated, anddrastically reduce the transparency of the text. Then there is also thedisadvantage that these lists of objectives can be interpreted asexcluding everything from EU action that is not explicitly mentioned.This is all the more relevant because the draft constitution reinforcesthe principle of conferral: it explicitly states that all competences not(explicitly) conferred upon the Union remain with the memberstates (Article I-9(2)).

The policy-making objectives currently contained in Title IV TECand Title VI TEU are both amended and added to by the draft con-stitution. Only the more important changes can be mentioned here.

Policies on border checks, asylum and immigration

Concerning border controls, the draft constitution provides for a‘policy’, rather than ‘measures’ only, as at present. This would appearto imply a higher degree of integration, although the term ‘commonpolicy’ – not very popular in some capitals – has been avoided. Themost significant innovation is the gradual establishment of an ‘inte-grated management system for external borders’ (Article III-166(1)(c)


and (2)(d)). This reflects the member states’ recent move towardsmuch more intensified cooperation on external border issues which,driven in part by the challenges of enlargement, had already comeout very clearly in the Council plan for the management of externalborders10 and the Seville European Council conclusions (both June2002). The project of creating a Common European Border Guard orBorder Police, which also had some support in the Convention, hasnot found its way into the draft, but the term ‘integrated manage-ment’ is wide enough not to exclude it in the more distant future.

As regards asylum, the draft constitution introduces for the firsttime the traditionally highly charged term ‘common policy’ inArticle III-167(1). Yet the use of this term is less revolutionary thanit might seem, since the European Council of Tampere in October1999 had set asylum policy objectives so ambitious that the term‘common policy’ could have been used ever since if some memberstates had not preferred the less charged term ‘common asylum sys-tem’. Nevertheless, the formal introduction of a ‘common policy’reinforces the shared ambitions in this area, and this is indeed addedto by a number of further objectives. For example, the draft consti-tution introduces a ‘uniform status of asylum’ (Article III-167(2)(a)),a ‘uniform status of subsidiary protection’ (Article III-167(2)(b)),common procedures for the granting and withdrawing of asylum orsubsidiary protection status (Article III-167(2)(d)) and ‘partnershipand cooperation’ with third countries for the purpose of managinginflows of people applying for either status (Article III-167(2)(g)).Although these objectives are to some extent already to be found inthe current Article 63 TEC, the common uniform status envisagedclearly goes beyond the more fragmentary current treaty provisions,which were largely based on the approach of common minimumstandards only. The explicit empowering of the Union to take actionin relations with third countries seems a useful and even necessarycomplement to the substantial internal objectives in this field.

The term ‘common policy’ is also used in the area of immigrationpolicy, which is even more surprising than in the area of asylumpolicy. The draft constitution seems to expect the Union to deliveron issues in which many member states have so far largely failed todevelop effective policy responses. It talks of ‘efficient managementof migration flows’, ‘fair treatment’ of legally resident third-countrynationals, and preventing and enhanced combating of illegal


immigration and trafficking in human beings (Article III-168(1)).These very ambitious objectives are unfortunately not matched by acorresponding increase in the powers of the Union. The only newprovisions made are for taking measures against illegal immigration,unauthorized residence, trafficking in person (Article III-168(2)(c)and (d)) as well as concluding readmission agreements with thirdcountries (Article III-168(3)). However, these are all areas in whichthe Union is already active. Provision is also made for measures pro-moting the integration of third-country nationals, but these have toexclude any harmonization of the laws and regulations of the mem-ber states (Article III-168(4)). It seems rather doubtful whether muchof a ‘common policy’ can emerge on that basis.

The most significant restriction on a ‘common immigration policy’,however, is imposed by Article III-168(5), which provides that memberstates will fully keep their right to determine ‘volumes of admission’of third-country nationals for work purposes, whether employed orself-employed. This provision takes one of the most crucial aspectsof any policy on legal immigration – the decision on numbers – outof the sphere of potential EU action. This will clearly not help thedevelopment of a common approach to opening up more channelsfor legal immigration, which the Commission had already advocatedin 2000 because of the dramatic demographic changes within the EU.It could well mean that the ‘common immigration policy’ of the EUwill remain, as at present, largely a policy on illegal immigration.One has to ask oneself, however, whether in a Union of 25 memberstates where there are major differences in the historical, cultural andsocio-economic context of national immigration policies and, indeed,very different immigration pressures, a fully fledged ‘common policy’including legal immigration is feasible. Yet the draft constitution’s useof the term ‘common policy’ in relation to immigration policy mat-ters hardly seems justifiable in view of the limitations placed on it.

Judicial cooperation in civil matters

In this area, the current catalogue of aims in Article 65 TEC is addedto by the objectives of providing a ‘high level of access to justice’,developing alternative methods of dispute settlement, and supportingthe training of the judiciary and judicial staff (Article III-170(2)(e), (g)and (h)). As the Union has already become active in all these areas,this largely represents a codification of existing practice, although it


creates a clearer basis for future action. What is important is that byvirtue of Article III-170(1), cooperation in civil matters is to be basedon the principle of mutual recognition, but ‘may’ also include mea-sures of approximation of national laws, which introduces a harmo-nization dimension.

Judicial cooperation in criminal matters

The draft constitution increases the number of objectives from thecurrent four (Article 31 TEU) to twelve. This number would be evenhigher if one included the tasks defined for Eurojust and the EuropeanPublic Prosecutor’s Office. What has been added is, in particular, thepossibility of adopting framework laws on minimum rules regardingthe mutual admissibility of evidence, the rights of individuals incriminal procedure, the rights of the victims of crime and other ‘spe-cific aspects’ of criminal procedure (Article III-171(2)), the consider-ably increased list of the areas of ‘particularly serious crime’ forwhich minimum rules on the definition of criminal offences andsanctions can be established (Article III-172(1)), the authorization ofEU action in the field of crime prevention (Article III-173) and thepossibility of establishing a European Public Prosecutor’s Office(Article III-175). All these are innovative elements, but they also raisea number of questions.

While one may welcome the inclusion of criminal procedure in thedomain of cooperation defined by the treaty, this could also exposethe tensions between the civil law and common law systems used indifferent countries of the Union. Rather than establishing a ratherincomplete list of areas for potential EU action, it might have beenmore appropriate to open up for cooperation the whole area of crimi-nal procedure, subject to a unanimity requirement to protect the inter-ests of member states with fundamentally different legal traditions.

The extension of the list of forms of ‘serious crime’ eligible for EUlegislative action has to be seen as a step forward, especially as regardscross-border crimes such as trafficking in human beings and com-puter crime, which are rapidly gaining in importance. One can, ofcourse, question the approach of listing individual crimes as this willnecessitate a cumbersome separate decision-making process if otherforms of crime need to be added at a later stage. There can be nodoubt that EU action in the field of crime prevention can add a usefulnew dimension to EU measures in the fight against cross-border


crime, but the scope of this action is limited by the exclusion of anyapproximation of national legislative and regulatory provisions(Article III-173). The provision on the possible – but not mandatory –establishment of a European Public Prosecutor’s Office is one of themost controversial ones in the draft constitution and has encoun-tered serious opposition, especially from the British government.Although a reasonable case can be made for a European ‘prosecutionservice’ for investigating, prosecuting and bringing to justice offencesagainst the Union’s financial interests – especially if the prosecutorsstill operate under national law when in national courts – the inclu-sion in the Office’s scope of ‘serious crimes affecting more than onemember state’ seems very broad and daring. From a political point ofview, the resistance to such an office in some member states couldprobably be reduced significantly if its scope were limited to theprotection of the Union’s financial interests.

As regards Eurojust, Article III-174 largely codifies existing functions,except that Eurojust can also ‘initiate’ criminal prosecutions con-ducted by national authorities. This is not currently provided for bythe Eurojust Decision,11 but could help make the best possible use ofthe information and expertise available to Eurojust in the fightagainst cross-border crime.

Police cooperation

The draft constitution streamlines and simplifies current provisionson general police cooperation while leaving their substance largelyunchanged (Article III-176). This is one of the few instances wherethe Convention has actually succeeded in simplifying provisions,which was part of its original mandate. There are some clearly inno-vative elements as regards Europol. According to Article III-177(2)(b),Europol can not only be vested with coordinating functions but canalso have as its task the ‘organization and implementation’ of inves-tigative and operational action carried out jointly with nationalauthorities. At first sight this may appear like a significant step forwardin creating an ‘operational’ role for Europol. However, this remainscontroversial in several member states, and in many cases substantialchanges to national legislation would need to be introduced to allowEuropol officers to take an active role in implementing policingmeasures. Yet Article III-177(3) severely restricts what would appearto be a stronger operational role for Europol by reserving ‘coercive


measures’ exclusively to national authorities, and by providing thatany operational action by Europol must be carried out ‘in liaison andin agreement with’ national authorities.

One can detect here a slight tension between the attempt, on theone hand, to strengthen Europol’s role, and, on the other hand, toremove grounds for fundamental objections from the member states.The underlying idea seems to be to make a distinction betweenpowers of investigation, with which Europol should to some extentbe vested, and operational law enforcement measures, which shouldremain with national authorities. This, however, should have beenmade much more clear in the relevant provisions, which have a rathertortuous wording. Interestingly, the Convention seems to have beenwilling to go much further with operational powers on the prosecu-tion side, as the provisions on the European Public Prosecutor’sOffice show, than on the policing side. This asymmetry will clearlynot assist effective cooperation between European police and prose-cution authorities.

A further new element is the provision for a European law or frame-work law on the conditions under which national law enforcementauthorities may operate on the territory of another member state(Article III-178). This has been a notoriously difficult issue for severaldecades, with major differences persisting between national legisla-tion which, in many member states, continues to impose very tightrestrictions on the movements of police officers from other memberstates within the national territory. Not surprisingly, unanimity isrequired in this sensitive area – which may delay adoption of commonlegislation for many years to come.

Division of powers and subsidiarity

According to Article I-13(2) of the draft constitution the AFSJ is adomain of ‘shared competence’, that is, a domain in which the mem-ber states shall exercise their competence only to the extent thatthe Union has not exercised, or has decided to cease exercising, itscompetence. This means to some extent a strengthening of EU com-petence as Union action in the JHA domain will pre-empt furthernational measures in this domain. This is currently far from clear, atleast in the area of the ‘third pillar’. As a result of this pre-emptiveeffect, member states could well find it more difficult to take action


at national level on issues such as illegal immigration, even if theUnion has only taken partial action.

In the division of powers between the EU and its member states,the Union side is strengthened in another respect. Article I-9(1) and (2)places a strong emphasis on the principle of conferred competences.This appears to make the gradual extension of ‘shared’ EU powersmore difficult. Yet Article I-17(1) has a ‘flexibility clause’12 that allowsEU action beyond explicitly mentioned powers if such action ‘shouldprove necessary … to attain one of the objectives set by the consti-tution’. As pointed out earlier, the AFSJ is indeed one of these funda-mental ‘objectives’ listed in Article I-3, but lacks any more precisedefinition of its content and scope. At least in principle, this provi-sion could offer the EU quite a wide margin for extending its scopeof action in the JHA domain.

Apart from the principle of conferred competences, however, thedraft constitution contains at least two other elements that arelikely to support a restrictive interpretation of Union powers in theAFSJ domain. One of those is the revised subsidiarity principle ofArticle I-9(3) which provides that the Union shall now act in domainsoutside exclusive Union competence only ‘if and insofar as theobjectives of the intended action cannot be sufficiently achieved bythe member states, either at central or at regional and local level’.Apart from generally increasing the burden of proof for EU action inthe JHA domain, the EU institutions will now also have to take intoaccount the regional level which, especially in the case of the GermanLänder, can have quite substantial powers to act on a number of JHAissues. It should also be noted that Article III-160 specifically men-tions the role of national parliaments in ensuring that legislativeinitiatives in the areas of police and judicial cooperation in criminalmatters comply with the principle of solidarity in accordance with the‘early warning’ procedure provided for by the Protocol on the appli-cation of the principles of solidarity and proportionality. Althoughthis controlling role of national parliaments applies in principle to alllegislative initiatives, the fact that it is specifically mentioned inrespect of these areas of JHA cooperation could increase the pressurefor new measures to be justified.

The second element which could contribute to a restrictive inter-pretation of Union powers is the new principle that the Union‘shall respect’ the ‘essential State functions’ of its members, which is


introduced by Article I-5(1) of the draft constitution. These functionsexplicitly include ‘maintaining law and order’ and ‘safeguardinginternal security’. Article III-163 takes up this principle again up bylaying down that JHA provisions shall not affect the exercise ofnational responsibilities with regard to maintaining law and orderand safeguarding internal security. As most of the areas covered bythe AFSJ are directly or indirectly linked to public order and internalsecurity issues, these articles could provide strong arguments formember states opposing an extension of EU action in certain fieldsof the JHA domain.

On the whole the picture regarding the division of powers is there-fore a rather mixed one, with the draft constitution providing boththe potential to strengthen the Union side of the division of powersscale, and new grounds for the member states to restrict Unionaction. All this looks like a recipe for controversies which may wellcome up before the Court of Justice.

Solidarity as a new integration principle

The introduction of an explicit principle of solidarity into the contextof JHA cooperation is one of the most significant innovations of thedraft constitution. If one takes the idea of the AFSJ as a single ‘area’in which member states seriously want to find common responses tocommon challenges, then it would seem only logical that memberstates also show solidarity with each other when carrying the finan-cial burden of these common responses. An obvious example of theneed for solidarity is the protection of the EU’s external borders,where member states face different challenges and problems becauseof their varying geographical positions, the result being that someface a significantly bigger bill for ensuring the high common stan-dards of external border security agreed at EU level. The question ofsolidarity is all the more important in view of the accession of tennew member states in 2004, some of which still lack the capacity toimplement the external border security standards of the EU (andSchengen zone). This is particularly problematic given that many ofthem are responsible for the EU’s new eastern border.

The draft constitution introduces the principle of solidarity no lessthan four times in areas of relevance to JHA cooperation. Theseare the framing of a common policy on asylum, immigration and


external border controls (Article III-158(2)), the adoption of prov-isional measures for the benefit of member states experiencing anemergency situation caused by a sudden inflow of third-countrynationals (Article III-167(3)), the validity of the ‘principle of soli-darity and fair sharing of responsibility, including its financial impli-cations, between the member states’ for the whole of Section 2 ofChapter IV (policies on border checks, asylum and immigration,Article III-169) and – outside the provisions on the AFSJ – the generalsolidarity clause of Article I-42 on the mobilization of all instrumentsat the Union’s disposal to prevent terrorist threats, to protect demo-cratic institutions and the civilian population, and to assist a mem-ber state in the event of an attack. Although different meaningscan be given to the term ‘solidarity’, the formal introduction of theprinciple nevertheless marks a substantial step forward towards asystem of effective burden sharing – with the significant inclusion ofthe use of EU budgetary means. It is regrettable, however, that thesolidarity principle has not simply been extended to all domains ofthe AFSJ, as the need for solidarity can also emerge in other fieldssuch as, for instance, the fight against organized crime, where at leastsome of the new member states still lack sophisticated investigationequipment.

The reforms of the decision-making system

Much attention was given before and during the work of theConvention to the deficits of the decision-making system for the AFSJ,and in particular to the fact that the requirement for unanimity wasone of the reasons that insufficient progress had been made in someareas. The draft constitution therefore provides for a number ofsubstantial reforms in decision making.

When it comes to voting requirements, there has been a majorbreakthrough towards qualified majority voting. Co-decision by theEuropean Parliament with majority voting in the Council becomesthe standard decision-making procedure for the domain of JHAcooperation. There are a number of exceptions. Unanimity will stillapply to measures concerning family law with cross-border implica-tions (Article III-170(3)), the establishment of minimum rules con-cerning ‘other’ (not explicitly mentioned) aspects of criminalprocedure (Article III-171(2)(d)), the identification of ‘other’ (that is,


not already explicitly mentioned) areas of serious crime for whichminimum rules concerning the definition of criminal offences maybe introduced (Article III-172(2)), the European law on the establish-ment of the European Public Prosecutor’s Office (Article III-175(1)),legislative measures regarding operational cooperation betweennational law enforcement authorities (Article III-176(3)) and thelaying down of the conditions and limitations under which nationallaw enforcement authorities may operate in the territory of anothermember state (Article III-178). While these are all clearly importantand sensitive areas, these exclusions from majority voting should notconceal the fact that the draft constitution introduces majority votingon a very broad scale indeed, even in areas such as criminal justicecooperation, which at the last IGC (2000) were still far from beingconsidered eligible for majority voting.

While this extension of majority voting may be regarded as a sig-nificant change, it also raises certain questions. On the one handthere can be no doubt that more majority voting on JHA matters willincrease the Union’s decision-making capacity. The last few yearshave amply demonstrated, especially in the domain of asylum andimmigration, that unanimity all too often means deadlock or majordelays, and even where decisions are taken, agreement is on the low-est common denominator. Given the major 2004 enlargement, andlikely further rounds of enlargement, the advantages of increasingdecision-making capacity through majority voting are considerable.

One the other hand, however, this comes at a price which somemember states may feel is too high. The draft constitution providesfor majority voting in areas where Union measures cut deeply intonational legal systems and traditions, as well as national concepts oflaw and order. Examples are the establishment of rules and proce-dures to ensure the recognition ‘throughout the Union’ of ‘all forms’of judgments and judicial decisions (Article III-171(1)(a)), the estab-lishment of minimum rules concerning the definition of criminaloffences in areas of serious crime (Article III-172) and the rulesregarding the functions and the scope of action of the European lawenforcement agencies Europol and Eurojust (Articles III-174 andIII-177). Measures regarding the collection, storage, processing, analy-sis and exchange of ‘relevant information’ – an area of particularsensitivity to citizens – are also subject to majority voting. It is legit-imate to ask whether the advantages of increased decision-making


capacity outweigh the cost of some member states potentially beingoutvoted in the Council and forced to introduce substantial changeswhich could go against the grain of their national legal systems.At least in some areas, differences between national legal systemsand concepts of public order are so marked that the costs of adapta-tion for outvoted member states could be very high indeed. The dif-ferent approaches to violent demonstrators or drug addicts are onlytwo examples among many. Although this applies particularly topolice and judicial cooperation criminal matters, the very differentchallenges the member states face in the field of immigration alsoraise questions about whether changing to majority voting on theconditions of entry and residence, and the rights of legally residentthird-country nationals (Article III-168(2)(a) and (b)), is fully justi-fied.13 There have been, inter alia, major concerns in Germany aboutthis issue.

Another aspect of the decision-making system to which the draftconstitution introduces changes is the right of initiative. While theEuropean Commission is vested with an exclusive right of initiativefor border checks, asylum, immigration and judicial cooperation incivil matters, the draft provides that it has to share its right of initia-tive in the areas of police and judicial cooperation in criminal mat-ters with the member states (Article III-165). Those, however, canonly introduce initiatives with at least one-quarter of their totalnumber (that is, seven after the 2004 enlargement). This provisionwould seem to be a good compromise between the preservation of aright of initiative of the member states (which have introduced a number of useful proposals during the last few years) and the needto prevent a proliferation of initiatives from individual memberstates which are all too often inspired by purely national interests.The one-quarter requirement could lead to a healthy concentrationof national initiatives.

The structure of the Council is also of importance for the Union’sdecision-making capacity in the context of the AFSJ. The introduc-tion of the ‘Legislative and General Affairs Council’ which – whenacting in a legislative capacity – ‘shall include one or two representa-tives at ministerial level with relevant expertise’ (Article I-23(1))would in principle allow all relevant JHA decisions to be taken in thisCouncil formation. However, because of the large number of issueson the JHA Council’s agenda during the last few years, and their


technical nature, it might be more practical to include the JHACouncil among the ‘further formations’ in which the Council, bydecision of the European Council, can meet (Article I-23(3)). Thesenior ‘Article 36 Committee’, which currently coordinates Councilwork in the context of the third pillar, is no longer provided for inthe draft constitution, which leaves responsibility for legislativecoordination solely with COREPER (Committee of PermanentRepresentatives). Yet Article III-162 provides for the establishment ofa standing Council committee in charge of promoting and strength-ening operational cooperation on internal security. As operationalcooperation between national authorities is crucial for the effectiveimplementation of EU policies in the JHA domain, but by its naturevery different from the legislative process, it certainly makes sense toestablish a separate coordinating committee for this task, providedthat COREPER – as the supreme decision-preparing body below theministerial level – can still ensure overall coherence and consistency.One may only ask whether it is actually necessary to formally providefor such a committee in a ‘constitution’.

Implementation

The effective and comprehensive implementation of decisions is ofparticular importance in the JHA domain. Doubts about effectiveimplementation of certain measures in other member states canincrease security risks and therefore make member states more reluc-tant to engage in common measures. They drastically reduce thetrust between national law enforcement and judicial authorities,and this is crucial for effective cross-border cooperation. It thereforeseems very sensible – though again, not absolutely necessary in a‘constitution’ – that the draft provides for adoption of arrangementsfor the ‘objective and impartial evaluation’ of the implementation ofUnion policies in the AFSJ context (Article III-161). The model forthis provision has clearly been the current ‘collective evaluation’procedures by which member states assessed the progress of theapplicant countries in the JHA area. Especially in the Schengen con-text, this led to some positive results. Such ‘peer review’ monitoringof implementation complements the much harder and more inflexi-ble formal treaty infringement proceedings before the Court (ArticlesIII-265 and 267).


Democratic and judicial control

As a domain which in many cases directly affects citizens’ interestsand rights, effective democratic and judicial control is of obvious‘constitutional’ importance to JHA cooperation. The draft constitutionconsiderably strengthens the role of the European Parliament whichgains co-decision or – in the case of harmonization measures in thefield of criminal law (Article III-171(1)) and the establishment of the European Public Prosecutor’s Office (Article III-175) – at least ‘con-sent’ powers in most of the fields covered by the AFSJ. Only in veryfew fields will the European Parliament (EP), according to the draftconstitution, still be limited to its current purely consultative role.These include administrative cooperation between member states(Article III-164), measures in favour of member states facing anemergency situation because of a sudden inflow of third-countrynationals (Article III-167(3)), measures concerning family law (ArticleIII-170(3)), operational cooperation between national law enforce-ment authorities, and the definition of the conditions under whichnational authorities may operate in the territory of another memberstate (Article III-178). While one can see a certain logic in limitingthe EP’s role under provisions such as Articles III-164, 176(3) and178, which largely concern the role of national authorities, this ismuch less evident in the case of measures in the civil law domain,which can affect all EU citizens, and in the case of ‘solidarity’ mea-sures in favour of member states facing a mass influx of third-countrynationals, which might involve substantial EU budgetary funds.Nevertheless, the draft constitution brings a clear breakthrough fordemocratic control at the European level as the EP becomes a realco-legislator for the further construction of the AFSJ.

This breakthrough is further enhanced through the EP’s explicitright to information about evaluation of the implementation of Unionpolicies (Article III-161) and the proceedings of the standing committeeon operational cooperation (Article III-162), as well as its involvementin the evaluation of the activities of Eurojust (Article III-174(2)) andEuropol (Article III-178).

A slight question has to be raised, however, over the EP’s capacityto cope fully with all these increased powers. Already under thecurrent ‘light’ consultation procedure the Parliament occasionallyhad to struggle to keep pace with the sometimes massive legislative


agenda of the JHA Council. One should also note that the EP willhave no role in the definition of the strategic guidelines for legislativeand operational planning within the AFSJ by the European Council(Article III-159), and that no provision has been made for giving the Parliament a greater say on the multi-annual action plans of theCouncil which, although non-legislative in nature, have done muchto shape the AFSJ during the last few years.

The position of national parliaments is also significantly strength-ened by Article III-160(1), which not only gives them a particularresponsibility for ensuring EU compliance with the subsidiarityprinciple in police and judicial cooperation in criminal matters, butalso grants them the same rights of participation the EP has regard-ing the evaluation of the implementation of Union policies, theproceedings of the standing committee on operational cooperationand the evaluation of the activities of Eurojust and Europol. Makingfull use of these new opportunities for scrutiny will require quitesubstantial reorganization in some national parliaments, not all ofwhich currently have effective monitoring procedures for EU JHAmeasures in place.

Regarding judicial control, it has already been pointed out abovethat as part of the formal abolition of the pillar structure most of theremaining ‘pillar-specific’ restrictions on the role of the Court ofJustice, which is called ‘High Court’ in the draft, have been removed.There is only one exception. According to Article III-283, the HighCourt’s jurisdiction will not extend to operations carried out by thepolice or other national law enforcement services and to measuresunder national law regarding the maintenance of law and order andthe safeguarding of internal security. This restriction is in line with theprinciple of the ‘respect’ of ‘essential State functions’ in maintaininglaw and order and safeguarding internal security in Article I-5(1), andshould not unduly restrict the High Court’s power of judicial reviewof Union measures. The removal of all other restrictions has to bewelcomed as a significant – and overdue – step towards comprehen-sive judicial control and protection within the AFSJ. Yet the burdenof cases arising from JHA issues could significantly increase in thefuture, which may make it necessary to use the possibility opened byArticle III-264 to establish one or more specialized courts of firstinstance attached to the High Court for certain classes of action, orproceedings brought in specific cases. Asylum and immigration as


well as areas of civil law and criminal cooperation would be the mostobvious areas for the establishment of such specialized courts.

Overall assessment

The reforms of the draft constitution are so substantial that they cre-ate a new basis and framework for the further development of theAFSJ. The most significant elements of change are the formal abolitionof the three ‘pillars’, the incorporation of the Charter of FundamentalRights, the extension of the policy-making objectives, the introduc-tion of solidarity as an integration principle and the breakthroughs onmajority voting and parliamentary participation. Taken together theseelements constitute clear ‘added value’ to the existing framework.They create significant potential for the further development of theAFSJ as a major political project of the EU, both in terms of substantialprogress with JHA policies and more guarantees for citizens over pro-tection of their rights and democratic control.

Several elements of the draft constitution are of particular relevanceto the enlarged EU. The reforms of the decision-making procedureswould certainly enhance the decision-making capacity of the EU inthe JHA domain, and this is clearly a major necessity given theincreased diversity within an AFSJ of 25 member states. The incorpo-ration of the Charter of Fundamental Rights, with its range of signif-icant rights in the JHA domain, also gives an important sign tocitizens in the new member states that the AFSJ is not only about lawenforcement and tight border controls, but also about commonvalues and the rights of individuals. The strengthening of the EU’spossibilities to act in the areas of cross-border policing, prosecution,crime prevention and minimum rules concerning the definition ofcriminal offences and sanctions should also be welcomed, given howattractive the new member states are to organized crime groups.This was, once again, highlighted in the 2003 EU Organized CrimeReport.14 The codification of collective evaluation as a major princi-ple in the JHA domain should also help in addressing some of theinevitable difficulties the AFSJ will face because several of the newmember states lack implementation capability. Finally, the introduc-tion of the solidarity principle – with the explicit inclusion of finan-cial solidarity – could become the basis of a more effective system ofburden sharing within the AFSJ which is clearly needed in the light


of the major burden the new member states have to take on inprotecting the eastern land borders of the AFSJ.

Yet the draft constitution also has its flaws. Perhaps these wereinevitable in a Convention which was permanently torn between theambition to serve as a pioneer for a stronger and truly ‘constitutional-ized’ Union on the one hand, and the desire to arrive at a draft whichwould as far as possible satisfy all the national governments so that ithad a chance to pass the Intergovernmental Conference (IGC) largelyintact. In any case, the flaws are there, and they are far from minor.

First, the ‘area of freedom, security and justice’ remains very muchan empty shell in terms of fundamental political objectives. A jungleof individual policy-making objectives does not replace a strategicvision of what the AFSJ is all about. Is it essentially an internal secu-rity project? Is it much more than that? Is it ultimately only a gen-eral enabling objective to allow ministries of interior and justice tocooperate on whatever they want, whenever they want? This draftconstitution does not provide an answer to these questions and,worse still, contains no vision of what this major integration projectshould ultimately become.

Second, this draft constitution – perhaps because of the lack of anunderlying common vision – is seriously unbalanced. On the onehand, in some areas it is daring to the point that one can seriouslyquestion whether so much ‘progress’ is actually justifiable at thisstage of the integration process because of the likely consequencesfor still highly different national legal and public order systems. Thebroad remit for the European Public Prosecutor’s Office and majorityvoting on harmonization measures in the criminal justice area arekey examples of this. On the other hand, however, there are plentyof places where the draft is extremely conservative, allowing forhardly any new developments. Decision-making rules on family lawand the provisions on Europol are key examples of this. Altogether,it is the recipe for ample controversies, uneven development of theAFSJ and confusion over its final objectives.

Third, in far too many instances the text of this draft constitutionbears the mark of cumbersome compromises. As a result, the provi-sions of the AFSJ – especially in Part III of the draft – have becomeeven less transparent than in the Treaty of Amsterdam, which in thisrespect was much maligned. It is true that the ‘pillars’ have been for-mally abolished, but a number of special decision-making rules lend


them a ghostly after-life which overshadows and blurs the unity ofthe AFSJ. More general provisions in one paragraph are in many casesmade subject to detailed special rules which partially restrict orchange the meaning of the more general provision, or obscure thegeneral rationale of Union action in the respective field. The mislead-ing use of the term ‘common policy’ in the immigration field and theextraordinarily complex provisions on judicial cooperation in crimi-nal matters in Articles III-171 and 172 are striking examples of this. Inthe field of JHA cooperation, the Convention has clearly failed to sim-plify current treaty provisions and to make them more transparent,which was, after all, an important part of its mandate. If we add theprotocols which the Convention has not dealt with (on the British,Irish and Danish opt-outs, for instance), the corpus of provisions onAFSJ will be at least as complex and impenetrable as before.

Although the creation of a single legal framework and the incor-poration of the Charter of Fundamental Rights can be regarded asimportant elements of ‘constitutional progress’, the flaws make theConvention’s draft constitution look very much like the result of an‘ordinary’ treaty-reforming Intergovernmental Conference, with allits complex compromises and incremental elements of progress. Asthe draft remains subject to approval and amendment by the IGC,there can be not the slightest doubt that the legal framework for thereformed AFSJ will, as before, remain an international treaty agreedon by national governments, and not a ‘constitution’.

Prospects after the failure of the first IGC roundin December 2003

As a result of the failure of the first round of the IGC at the December2003 Brussels summit, which was mainly due to the controversy overthe weighting of national votes under the qualified majority rule, thefate of the Convention’s draft constitution is still rather uncertain atthe time of writing. Most of the provisions relating to the AFSJ seemto have ‘survived’ the first round of negotiations unchanged,15 but theConvention’s compromise package has already been ‘unbundled’ toa very significant extent in the criminal justice field.16

Mainly at the insistence of the British government, the IGC agreedto insert a specific clause protecting the differences between the legaltraditions and systems of the member states and ‘in particular between


the common law systems and the others’ in relation to any EU mea-sures in the domain of criminal procedure (new Article III-171(2)). Inaddition, a sort of ‘emergency brake’ procedure has been designedaccording to which a member state which considers that a Europeanframework law in the domains of criminal procedure or substantivecriminal law infringes fundamental principles of its legal system willbe able to refer the draft law to the European Council, thereby ‘sus-pending’ its adoption according to the normal legislative procedure(new Articles III-171(2) and III-172(3)). The European Council wouldthen have the possibility of either referring the draft law back tothe Council for termination of the suspension, or requesting theCommission or the group of member states who initiated the law tosubmit a new draft. This is clearly a most peculiar innovation as itwould allow any member state simply to interrupt an ongoinglegislative process, and also give the Heads of State and Governmentin the European Council a de facto legislative role which is clearly notin line with the institutional system of the EU. While it has to berecognized that majority voting in the criminal justice domain posesparticular problems, the introduction of such a procedure may well beworse than maintaining unanimity because it undermines the normallegislative interaction between Commission, Council and Parliament.It shows the dangers of a selective ‘opening’ of the Convention draftin response to specific national interests.

It is hardly surprising that in response to British concerns, the ItalianPresidency has also proposed to make any extension of the EuropeanPublic Prosecutor’s powers beyond the protection of the financialinterests of the EU dependent on unanimity in the Council andnational ratification by the member states (new Article III-175(4)).Yet at the Brussels summit in December 2003, the Heads of State andGovernment failed to reach agreement on the introduction and thepowers of a European Public Prosecutor and on the question ofmajority voting in the criminal justice domain, so that this remainsopen for renegotiation.

The Irish Presidency in the first half of 2004 appeared to want toavoid a general renegotiation of the provisions relating to the AFSJ,although there will clearly be some substantial changes in the crimi-nal justice domain along the lines indicated above. Additionalchanges would most likely only go back on some of the reform com-promises agreed upon in the Convention without remedying any of


their deficits. As full partners at the negotiating table from 1 May2004, the new member states have their chance to resist the tempta-tion to make an imperfect but still substantial new ‘constitutional’framework for the AFSJ worse by additional intergovernmental com-promises.

Notes

1 European Commission, Standard Eurobarometer 59, Brussels, July 2003,pp. 9 and 58–9.

2 Formally codified in Article 2 of the Treaty establishing the EuropeanUnion as being of equal legal status to, for instance, Economic andMonetary Union and the Common Foreign and Security Policy as funda-mental Union objectives.

3 Kindly made available to the author by Hans Nilsson, Head of the JudicialCooperation Unit.

4 CONV 69/02 and 206/02.5 Final Report: CONV 426/02.6 CONV 435/02.7 CONV 850/03.8 By virtue of Article I-6 the Union is vested with full legal personality,

which removes current uncertainties on this issue.9 Council document no. 9153/03.

10 Council document no. 10019/02.11 Article 6 of the Eurojust Decision is much more vague in this respect

(Official Journal of the European Communities, L 61, 6 March 2002).12 A continuation of the current general enabling clause of Article 308 TEC.13 However, already under current treaty provisions (Article 63 TEC) some

of these aspects would have come under majority voting by 2004.14 See Europol, ‘2003 EU Organised Crime Report’, The Hague, 21 October

2003, File number 2530–132, section 6.1.15 Unfortunately the Italian Presidency has not published a complete record

of the outcome of the negotiations until December 2003.16 The following details are taken from the so-called ‘Naples document’,

which reflects compromises agreed upon by the beginning of December2003 (Council document CIG 60/03 of 9 December 2003, pp. 25–9).


135

7EU Institutional Reform andNew Member States in the Areaof Freedom, Security and JusticeVladimír Bileík

Introduction

While much of the accession process placed strict demands upon EUcandidate states for compliance with the abundant provisions of theacquis, the context of the Convention on the Future of Europe andlater the Intergovernmental Conference (IGC) offered a different set-ting calling for input of ideas by prospective member states. FromFebruary 2002 to July 2003 representatives from the CEECs ‘took acrash course in European integration through their participation inthe Convention on the Future of Europe’.1 In contrast to the asym-metric nature of accession talks, the Convention offered future mem-ber states the first opportunity to take a full part in EU’s internaldeliberations.2

This chapter sets out to examine briefly how the post-communistCentral and Eastern European countries (CEECs) acted in their newrole of EU subjects. More specifically, the analysis looks at the per-formance of the CEECs as potential shapers of the area of freedom,security and justice (AFSJ) in the enlarged European Union. The textprovides a set of broader observations while drawing on specificexamples from various countries. The chapter assesses the positionand activities of CEECs in the Convention. It highlights their keypronouncements in the area of justice and home affairs throughoutthe Convention’s work and examines major themes put forward by

representatives of the candidate countries. Finally, the chapter alsoconsiders positions of the CEECs in the IGC with reference to thedomain of the AFSJ.

While the AFSJ agenda by no means dominated in the Convention,the CEECs made a vocal and distinct contribution to general debates onthe future management of borders and the Union’s internal security.Although many of the then current EU member states (EU-15) wereinterested in technical improvements and deepening cooperation inthe existing AFSJ, members-to-be largely reflected individual concernsabout the successful extension of the AFSJ to a larger and more hetero-geneous Union with new and potentially unstable neighbourhoods.

The role of the CEECs and the context of the Convention

Assessment of the role played by the CEECs warrants one generalremark. Namely, it is hazardous in any circumstances to lump allCEECs into a single basket and make sweeping generalizations aboutthe new EU member states.3 The experience of recent interactionswith the EU has demonstrated that the CEECs do not form a mono-lithic bloc and there are moments when they find themselvessupporting different or even opposing positions. At times it is com-petition rather than cooperation that best captures relations amongthe Union’s new member states. During accession talks with EUmember states the CEECs did not form a unified front and in finalnegotiations at the summit in Copenhagen (December 2002) eachcountry tried to secure a larger chunk of available EU funds. In theConvention most CEECs joined smaller EU member states in oppos-ing the creation of a permanent president for the European Council,but Poland did not. Diversity of opinions resurfaced most visibly dur-ing the 2003/2004 IGC. Hungary’s initiative to include a clause onthe rights of minorities in the constitution upset Slovakia. The Polesand the Slovaks fought to include an explicit reference to God in theconstitution’s preamble, while the Estonians or Latvians cared muchless about the issue. Even more poignantly, by December 2003 Polandwas left alone in its stance not to give up the voting weights estab-lished by the Treaty of Nice, and other CEECs were willing to discussthe modalities for a new double majority voting. Future debates on anarray of policy issues are only likely to reveal more marked differencesamong the CEECs.


The particular context of the Convention deserves two furthercaveats. First, the Convention was a forum that could not fully andcomprehensively reveal the positions and priorities of the CEECs. Tostart with, members of the Convention were nominated by nationalgovernments and parliaments but possessed no clear mandate fromtheir respective institutions. Hence, they acted largely in their per-sonal capacity. Major domestic debates on the EU constitution beganonly once the Convention had completed its work, and many gov-ernments of EU members and members-to-be agreed upon individualpositions for the Intergovernmental Conference only a few daysbefore the start of the IGC in October 2003. Moreover, for the CEECsparticipation in the Convention was of secondary importance to thegoal of completing accession talks with EU member states. Most dif-ficult discussions on the terms of EU entry culminated in the courseof 2002. Representatives from candidate countries were naturallyreluctant to offer firm or critical views in the Convention while theirgovernments negotiated crucial conditions of EU membership.4 Lastbut not least, delegates from the CEECs entered debates on the futureof the Union without any practical experience of EU institutions andpolicies. As a result contributions concerning designs for the enlargedUnion often stuck to broad observations. Paradoxically, although rep-resentatives from the candidate countries initially called for theestablishment of working groups in the Convention, they were mostprolific during plenary sessions.

Second, the official status of representatives from the candidatecountries deserves a point of clarification. Despite numerous con-cerns, the CEECs sent their governmental and parliamentary repre-sentatives to Brussels as virtually equal partners to counterparts fromEU member states. Although the involvement of the candidate coun-tries was restricted in certain ways, in practice they could speak outand contribute to the work of the Convention without visible curbs.Formally, delegates from the CEECs could not prevent any consensusthat might emerge among the member states. Yet as there was novoting in the Convention, this provision never really mattered inpractice. Another constraint stemmed from the composition of theConvention’s Presidium, originally made up of 12 members from EUmember states. However, the Presidium soon enlarged to 13 mem-bers by inviting a nominee of the candidate states to all its meetings.5

Finally, the restriction of the Convention’s dealings to official EU

EU Institutional Reform 137

languages hardly affected delegates from the CEECs as most of themspoke fluent English.

In reality the Convention provided the first significant arena wheredelegates from the enlarged Union debated as equals. Participation ofthe CEECs was marked by their lack of familiarity with the intricaciesof the Union, and the Convention remained in the shadow of enlarge-ment negotiations. Yet, as proceedings went on, members-to-be andmember states shared the Presidium’s agenda and echoed similar con-cerns about the fate of EU institutional reform.6

Members-to-be and justice and home affairs

Issues of justice and home affairs (JHA) attracted considerable atten-tion in the Convention because of both their complexity and theircontroversy.7 The Presidium declared a clear ambition to enhance theclarity, transparency and simplicity of the AFSJ.8 The plenary sessionon 6–7 June 2002 was devoted to issues of JHA reform and representa-tives from the candidate countries proved especially vocal with shortspeeches on the future of justice and home affairs.

In order to look at issues of EU reform in more detail, the Conventionset up working groups on particular topics. Originally the Presidiuminitiated the creation of six working groups concerned largely withtechnical and legal matters. Later the Convention established fiveother working groups that looked mostly at policy areas and includedworking group (WG) X, ‘Freedom, Security and Justice’.9 In contrastto numerous contributions in the plenary session, technical sugges-tions by members from the candidate countries were more limitedand input to WG X, ‘Freedom, Security and Justice’, remained con-fined to a few contributions.10 The level of involvement of the CEECsrevealed a certain lack of specialized experience and expertise. It alsoindicated a specific set of political priorities in the field of the AFSJ.

Borders

If there emerged a dominant theme of contributions from the CEECs,it was the future of EU borders. Given the commitment to theSchengen acquis, new member states are sharing a challenge of doubleexclusion. First, at the very least, several years are going to elapse beforethey integrate completely with other members of the Schengen system.The date for acceding to Schengen has not been set and remains


subject to further speculation. Officially, the inclusion of new memberstates is contingent upon the extension of the Schengen InformationSystem. However, enlargement of the Schengen regime is principally anexplosive political issue. Implementation of the acquis in new memberstates continues to be monitored by the European Commission. In theevent of failure on the part of the CEECs, these countries are subjectto possible safeguard clauses that could prevent early accession toSchengen.11

Second, although not fully integrated with the EU-15, the CEECshave already ‘hardened’ their eastern borders with non-EU neigh-bours.12 Since 1 May 2004 altogether nine out of the ten new mem-ber states have been responsible for guarding the Union’s externalfrontier, while at the same time they have maintained regular pass-port checks on today’s EU internal borders.13 New members haveintroduced visa regimes with their eastern and south-eastern neigh-bours. Some countries, particularly the Baltic states, are keen ontightening their eastern borders with Russia. However, as discussed inChapters 3 and 4, in most cases harder borders have led to more dif-ficulties, especially in people-to-people contacts across the new EUborder. To compensate for potential losses from reduced travel andlower intensity of local trade on its eastern border, Poland reacted byintroducing free visas for Ukrainian citizens.14 The Polish examplewas soon followed by Hungary, whose ethnic minority in Ukrainedepends on various cross-border networks. Yet it is uncertainwhether these CEECs are going to be able to maintain more flexiblevisa regimes with non-EU neighbours following their entry intoSchengen as there are pressures to keep uniform fees for Schengenvisas across the EU.

Convention delegates principally focused on improving the exist-ing system of border controls. Some representatives from the CEECsemphasized the need for a swift integration of the new member statesinto the Schengen regime, arguing that ‘Europe will not become moresecure unless the Schengen regime also fully encompasses all futuremember states’.15 Others articulated a strong preference for develop-ing a distinct JHA dimension within the Union’s external action,pointing to the need for a degree of flexibility and accommodatingapproaches to future neighbours of the Union. The representative ofthe Romanian government stated that ‘the JHA dimension should befurther integrated in the various common strategies, especially those


regarding the current and future EU neighbours: Ukraine, Belarus,Republic of Moldova, Black Sea and Mediterranean region’.16

Working group X, ‘Freedom, Security and Justice’, took a collectiveinterest in the preparations of candidate countries for entry intoSchengen and two experts with experience from the German–Polishborder addressed the group.17 Their exposés and working groupdebates highlighted the sensitivity of the border issue and under-scored current limits to further integration. While Poland is attempt-ing to open up its western border and qualify for membership inSchengen, Germany is concerned with the security of its easternborder where about half of illegal migrants crossing from Poland areinvolved in illicit activities.18

Realistically, therefore, although the topic of European border policereceived considerable attention, it remains a rather long-term prospectattainable through gradual collaborative schemes between memberstates. In more immediate terms, the candidate countries accentu-ated solidarity as the guiding principle for achieving an integratedand functioning Schengen. Referring to the geographic location ofnew member states situated on the eastern fringes of the enlargedUnion, the majority representatives of the CEECs focused on greaterburden sharing in EU border management. Several members of theConvention voiced support for the cooperation of EU border guards,organization of common surveillance or the establishment of somefinancial mechanism helping to distribute the costs of policing EUborders.19 Pressures at future external borders will increase and allmember states have the responsibility to protect it. The new treatyshould therefore ‘recognize this objective and provide the measuresto promote solidarity and a fair burden-sharing – but not only withregard to financing’.20 In this context other countries have welcomedthe proposal of the Commission for establishing a European PoliceCollege (CEPOL) specialized in border policing training.21

Future burden sharing will also have to account for the size andinternal resources of the country. Some future member states arelarger – such as Poland – and have a particularly long border withthird countries. Other states are much smaller but are equally wor-ried about their effective ability to protect the EU’s extensive border.For instance, Slovenia, with less than 2 million inhabitants, will have670 km of external frontier. During accession talks candidate coun-tries received a lump sum for the performance of tasks connected to


the Schengen acquis in the first three years of membership.22 One ofthe results of the Convention in the draft treaty establishing a con-stitution for Europe is the notable mention of the principle of soli-darity in the construction of certain parts of the AFSJ.23 This provisionopens up more possibilities for mutual support in building a largerSchengen.

More Europe

Apart from the focus on shared responsibilities, representatives fromthe CEECs endorsed other aspects of solidarity in the draft treaty.Most significantly and with direct bearing on the AFSJ, they sup-ported the introduction of Article I-42 that covers the so-called soli-darity clause and states that ‘the Union and its Member States shallact jointly in a spirit of solidarity if a Member State is the victim ofterrorist attack or natural or man-made disaster. The Union shallmobilise all the instruments at its disposal, including the militaryresources made available by the member states.’ The solidarity clausecan be invoked in order to prevent the terrorist threat in the territoryof the member states; protect democratic institutions and the civil-ian population from any terrorist attack; assist a member state in itsterritory at the request of its political authorities in the event of a

terrorist attack or assist a member state in its territory at the requestof its political authorities in the event of a disaster.24 While manyCEECs expressed reservations about deeper cooperation in ‘hard’ secu-rity, especially about structured cooperation in defence matters, theyreadily accepted a binding solidarity clause with potential militaryimplications. As the events of 11 September 2001 provided a catalystfor more intensified cooperation in the area of JHA through theadoption of the European arrest warrant, the threat of terroristattacks enticed the CEECs to agree on a bold definition of the EU’sclose cooperation as defined by Article I-42.

Indeed, dangers of terrorism and illicit trade and traffickinginspired numerous contributions from members-to-be calling for agreater EU role. Slovakia’s governmental representative affirmedthat ‘the events of September 11, 2001 have clearly demonstratedthat maintaining a safe and stable Europe in the years to come callsfor developing an integrated and comprehensive strategy on JHAissues’.25 Other members of the Convention presented bold views ona range of policy questions asserting the need for ‘a common asylum


system with a common procedure, not only minimum rules in thecurrent Treaty, and … a need for the QMV [qualified majority voting]and co-decision’.26 There were voices saying that ‘harmonization ofmaterial and procedural provisions of criminal law, based on the prin-ciple of mutual recognition … seems to be necessary’.27 Additionally,solidarity also entered the debate on asylum policy when a delegatefrom the CEECs stressed the importance of the establishment of acommon asylum policy based on the balanced allocation of burdens.28

Furthermore, shared responsibilities concern police and judicialtraining as ‘the European Police Academy and the European LegalAcademy are key, standing elements fostering the European policeand justice affairs cooperation’.29

In short, many representatives from the CEECs supported the over-all thrust of the Convention’s contributions in favour of more inte-gration in constructing the AFSJ. There was also widespread consensuson the importance of parliamentary legitimacy in bringing about theAFSJ and on the significance of inserting the Charter of FundamentalRights into EU treaties. The Charter was seen as a driving force for theconstitution of the EU’s legal area containing explicit freedomsand rights of citizens in relation to institutions of the Union. SeveralCEECs’ representatives expressed the desire to see the Charter ‘includedin the system of Treaties’30 or support for ‘the incorporation of princi-ples laid down in the Charter of Fundamental Rights into the futureConstitutional Treaty of the European Union’.31

The CEECs and the fate of the draft constitution

Most of the aforementioned pronouncements on the future of theAFSJ took place either during the listening phase of the Convention’swork or in the context of WG X, ‘Freedom, Security and Justice’. Whilethey reveal some engagement with the JHA agenda, they tell us lessabout the CEECs views on the draft treaty establishing the constitu-tion for Europe. Since the whole text of the new treaty was drafted injust five months (from 6 February to 10 July 2003) and the Presidiumpublished Part III of the draft constitution with provisions coveringthe AFSJ in very late stages of the Convention, virtually no space wasleft for a meaningful exchange and incorporation of amendments.Hence the role of the plenary in drafting the final articles was at bestrestricted and any substantive changes were left to the IGC.


During the closing debates of the Convention and in the earlystages of the Intergovernmental Conference questions of justice andhome affairs did not belong to the locus of the CEECs’ key prioritiesfor EU reform. Primary concerns covered issues of the institutionalarchitecture of the EU and distribution of power among the Union’sstructures and individual member states. Questions such as the com-position of the Commission, the definition of decision-makingmechanisms and the presidency of the European Council have dom-inated domestic debates since the publication of the draft constitu-tion. Power designs rather than specific policy issues were offundamental importance. The CEECs shared an overall interest infair participation and full inclusion in EU policy making. Their posi-tion on EU reform was marked by recent attempts to catch up withand adapt to EU standards. The new members have sought partner-ship with rather than subordination to old members in future deci-sion shaping.

Between status quo and adaptability

It should thus not seem shocking that the beginning of the IGC dis-closed a rather defensive posture by a number of CEECs in favour ofmany existing institutional and policy provisions. The new membersinsisted on keeping their right to nominate a commissioner, theystuck to the definition of qualified majority voting (QMV) from theTreaty of Nice and they were not keen on further integration in mostpolicy areas, especially foreign, social and tax policy. In addition, sev-eral of the CEECs were most prolific in advancing seemingly sym-bolic priorities. For instance, the foreign ministers of Poland,Lithuania, Slovakia and the Czech Republic signed together withtheir counterparts in Portugal and Italy a letter requesting a mentionof Europe’s Christian roots in the preamble of the constitution.32

Matters of the AFSJ were by no means central to the IGC and no newmember state clearly pushed for greater or faster integration in justiceand home affairs. At the same time, no government from the CEECshas fundamentally opposed provisions dealing with the AFSJ. Thereare, however, individual political forces that have raised combativevoices against specific proposals. It is worth mentioning the attitude ofthe Czech Republic’s major opposition Civic Democratic Party (ODS)that has adopted a sceptical position vis-à-vis the draft constitutionand the incorporation of the Charter of Fundamental Rights. Also,


several opposition politicians in Poland and one government coalitionparty in Slovakia – the Christian Democratic Movement (KDH) –expressed views opposed to the inclusion of the Charter in the futureconstitutional treaty. Despite Slovakia’s official position in favour ofthe Charter, once the IGC began, KDH politicians and specifically itsdeputy chairman and Minister of the Interior Vladimír Palko contin-ued to voice resistance to the Charter of Fundamental Rights.33

While in the course of the Convention countries such as Hungary,the Czech Republic or Latvia expressed some support for further inte-gration in the AFSJ and during the IGC many governments kept a rel-atively low profile in JHA agenda,34 Slovakia is an illustrative exampleof a more defensive posture. The Slovak Ministry of Justice managedto get a strict clause in the country’s official position for the IGC.Accordingly, Slovakia was ‘against the weakening of the principle ofunanimity in the areas of criminal law, justice and police cooperation,asylum, migration’.35 More specifically, the Slovak government agreedto support an amendment to the proposed Article III-170 so that‘harmonization in the area of civil law could be possible only in casesinevitable for the functioning of the internal market’. In addition,Slovakia backed unanimity in decision making on minimal standardsin criminal law (Article III-171) and was against the inclusion of ArticleIII-175 enabling the establishment of the institution of EuropeanPublic Prosecutor.

Ironically, this stance appears in stark contrast to the government’sposition from the late 1990s when it called for a quick harmoniza-tion of the EU’s asylum and migration policies as an argument infavour of stemming the flow of Slovak Roma to various EU countries.Today, when Slovakia is a member state of the EU and is simultane-ously undergoing internal judicial reforms and discussing a new crim-inal code, it is much less willing to consider such sweeping solutions.And Slovakia is not alone here. Other CEECs in the Convention con-veyed doubts about certain aspects of the JHA agenda, asking:‘European Public Prosecutor – is it not a little early for such a body?’36

Clearly, the varying contexts of interactions with EU institutions andmember states result potentially in very different outcomes. Currentand future rather than pre-accession attitudes of new member statesrepresent a better guide to their policy preferences.

If the IGC serves as the first real test of CEECs’ attitudes as EU sub-jects, then the results appear mixed. While the positions of some


CEECs at the IGC are reminiscent of the UK’s ‘red lines’, the newmember states are not likely to play the role of a brake on the devel-opment of the AFSJ. Unlike the UK, they are fully committed to allexisting provisions of the acquis. They have already shown a strongdegree of flexibility in adapting to Schengen provisions and otheraspects of justice and home affairs.

In addition, the thinking of countries is not fixed and an openingrigid standpoint may soften. Slovak Prime Minister Mikulás Dzurindais a telling case in point by raising a suggestion that in the light ofthe terrorist attacks in Madrid Slovakia may consider further com-munitarization in the area of internal security.37 In broader institu-tional terms, while some new member states adopted a tough stanceon the definition of qualified majority voting when they stuck to thecontents of the Treaty of Nice, in subsequent negotiations duringthe IGC they proved more accommodating partners. Once it becameclear that nothing short of a compromise could lead to a successfuloutcome at the close of the Italian Presidency in December 2003,Slovak Foreign Minister Eduard Kukan expressed his doubts aboutPoland’s rigid position on QMV: ‘The Poles are taking a big risk. Theystaked everything on one roll of the dice, and presented their pointof view in a way which gives Poland no chance of retreat.’ Similarsentiments were echoed by Czech Foreign Minister Cyril Svoboda,who said, ‘Poland has made a tactic mistake.’38 At the summit inBrussels in December 2004 Prime Minister Dzurinda indicated thegovernment’s openness to different scenarios when he said, ‘Nice isfine but let’s not paint a black picture of double majority’; ‘Schuessel[Austrian PM] says 60 and 60 [formula for a double majority] – and I have no problem.’39 Unlike Poland (and countries such as Franceand Spain), other new member states were willing to alter their stanceon QMV. As one diplomat put it, some countries adopted a stance of‘least resistance’.40

Most governments of new member states were more interested inattaining an agreement on the draft constitution than in sticking toNice. The Polish position represented an exceptional case. Althoughit demonstrated that the CEECs might be resistant to changes in sen-sitive institutional and policy areas, the majority of new memberstates are keen on securing agreements and willing to compromise.

Their readiness to strike a deal on the draft constitution is at the very least indicative of a broad agreement with the direction of


the Convention’s proposal in the AFSJ. However, pushing for moreintegration shortly after accession would be going one step too far forthe CEECs. In fact, certain areas of the JHA agenda might not benegotiable in the foreseeable future. Yet in the case of countries thathave been undertaking intensive domestic reforms, their currentopposition to greater integration in the area of criminal law, or reluc-tance to endorse the establishment of the European Public Prosecutor,should not be considered particularly surprising. At the same time,the very same countries are bound to be at the forefront of EU effortsto establish effective border management and controls. The EU is stillin a process of enlarging to the east and south-east, and the bordersconcerned are largely borders of new member states. For that reasonalone, Central and Eastern European countries are likely to remainmore vocal on matters concerning borders than on deepening coop-eration in areas of civil and criminal law.

Notes

1 H. Grabbe, The Constellations of Europe. How enlargement will transform theEU (London: CER, 2004), p. 53.

2 The Convention included representatives of governments and parliamentsfrom thirteen candidate countries covering ten states that entered the EUon 1 May 2004 plus Romania, Bulgaria and Turkey.

3 Malta and Cyprus differ fundamentally due to both their particular histo-ries and geographic location as islands in the Mediterranean. Thereare also many vital differences among the eight new post-communistmember states.

4 Some representatives – such as Ján Figel’ of Slovakia or Danuta Hübner ofPoland – were simultaneously involved in accession talks with the EU.

5 Representatives of candidate countries chose Alojz Peterle from Slovenia asthe invitee to the Presidium.

6 Shared concerns included the centralistic style of Valéry Giscard d’Estaing,President of the Convention, or questions about the impact of the intra-European divisions in the run-up to war in Iraq in the spring of 2003.

7 For a succinct summary of the main issues see F. Hagedorn, ‘ReformingJustice and Home Affairs. A Question of Balance: The Area of Freedom,Security and Justice’, Convention Spotlight 2002/09 (Munich: Center forApplied Policy Research, 2002).

8 See CONV 69/02 for progress report on the state of JHA and ambitions forthe Convention.

9 The original six working groups covered the topics of subsidiarity, theCharter of Fundamental Rights, legal personality, national parliaments,complementary competences and economic governance. An additional


five working groups dealt with questions of external action, defence,simplification of instruments and procedures, justice and home affairsand social Europe.

10 The complete list of contributions to the proceedings of working group Xis available on the Convention’s website: http://european-convention.eu.int/bienvenue.asp?lang=EN&Content=.

11 The possibility of introducing safeguard clauses in the area of the singlemarket, Common Agricultural Policy and Schengen is explicitly mentionedin the Accession Treaty.

12 For the analysis of the external dimension of enlarging Schengen,see J. Batt, ‘The Enlarged EU’s external borders – the regional dimen-sion’, in Partners and neighbours: a CFSP for a wider Europe, ChaillotPaper no. 64 (Paris: EU Institute for Security Studies, September 2003),pp. 102–18.

13 The only exception is the Czech Republic, whose eastern neighbour isSlovakia.

14 Ukrainians have to apply for visas but do not pay a visa fee. Conversely,Ukraine introduced visa-free travel for Polish citizens. Hence the Polesonly need their passports to enter Ukraine.

15 Speech by Ján Figel’, plenary session 6 June 2002.16 Hildegard Puwak, Representative of the Romanian Government, Working

Group (WG) X – Working Document (WD) 24.17 See CONV 386/02 for summary of WG X meeting held on 29 and 30

October 2002. The two experts were Colonel Marek Adamczyk, Directorin the Polish Border Guard Unit and Mr Eckehart Wache, Head of theFederal Border Police Office in Frankfurt/Oder.

18 CONV 386/02.19 Speeches by Danuta Hübner and Nelly Kutzkova, plenary session 6 June

2002.20 Prof. Dr Mihael Brejc, Vice-President of the National Assembly of Slovenia,

Alternate Member of the European Convention. WG X – WD 31.21 WG X – WD 24.22 For example, Slovakia received 47.8 million euros for the aforementioned

period.23 See Chapter 6, this volume, for an analysis of solidarity and the AFSJ.24 See Article I-42 of the draft treaty establishing a constitution for Europe.25 WG X – WD 24.26 WG X – WD 31.27 Pal Vastagh, Hungarian parliamentary member of the Convention, WG X –

WD 28.28 Ibid.29 Ibid.30 Jan Kavan, Representative of the Czech government in the Convention,

CONV 115/02.31 WG X – WD 28.32 The letter was sent to the Irish presidency of the EU on 22 May 2004.


33 See for instance Vladimír Palko’s article in the Slovak daily, Sme,11 December 2003.

34 For positions of various members-to-be on unanimity in select policyareas including JHA see C. Franck and D. Pyszna-Nigge (eds), Position of10 Central and Eastern European Countries on EU Institutional Reforms:Analytical Survey in the framework of the CEEC-DEBATE project(Louvain-la-Neuve/Brussels: Université catholique de Louvain, June 2003).

35 Author’s translation of the official position adopted by the SlovakGovernment on 2 October 2003. The text of the position can be found athttp://www.foreign.gov.sk/files/stanoviska_sr_mvk_rome.doc.

36 WG X – WD 31.37 See http://www.government.gov.sk/aktuality_start.php3?id_ele=4405 for

the record of Prime Minister Mikulás Dzurinda’s press conference afterthe Brussels European Council, 26 March 2004. See also http://www.government.gov.sk/aktuality_start.php3?id_ele=4404 for the record ofPM Dzurinda’s press conference at the end of the first day of the BrusselsEuropean Council on 25 March 2004. For reactions of ministers from theChristian Democratic Movement (KDH) see the Slovak daily, Sme,26 March 2003.

38 Foreign Minister Eduard Kukan quoted by Press Agency of the SlovakRepublic (TASR), 10 December 2003. Also see www.poland.pl/articles/print.htm?id=73642.

39 Press conference of the Prime Minister Mikulás Dzurinda, Brussels,12 December 2003.

40 An informal conversation with a Slovak diplomat in Bratislava,28 April 2004.


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8Conclusion: The Politics ofFreedom, Security and Justicein the Enlarging EUHeather Grabbe

Introduction

The chapters in this book highlight the dilemmas faced by theenlarging EU in trying to achieve greater freedom, security and jus-tice for nearly half a billion citizens. The case studies presented inthis volume show how difficult the new members of the Union havefound it to deal with the EU’s burgeoning agenda in justice andhome affairs (JHA), but also how this challenge has intersected withtheir growing domestic problems with crime, immigration pressuresand internal security threats. Sometimes the EU’s agenda for JHAcooperation has helped them to tackle these problems, but often ithas complicated policy making. And the introduction of a huge newagenda in the last four years or so of the accession negotiations – as aresult of the EU’s parallel development of the ‘area of freedom, secu-rity and justice’ (AFSJ) – certainly made membership more demandingto achieve.

The political climate in Europe changed significantly during the15 years when the new members were preparing to join the EU, andwhen the Union was developing its new internal security agenda. Inaddition to dealing with a new situation to its east and south, the EUand its member states experienced shocks which changed percep-tions of internal security threats. This chapter considers two majorchanges to the politics of internal security in Europe during the period

when the EU was preparing for eastward enlargement: the role ofborder controls following the end of the cold war; and the impact of 11 September 2001 on European approaches to internal security.It then looks forward to the changes that are likely over the yearsahead, following the 2004 enlargement.

The changing nature of borders and the privatization of fear

What are borders for? The answer to this question changed followingthe end of the cold war. Many of the ‘new risks’ facing Europe after1989 still relate to borders, but their role in security has changed. Nolonger used primarily to deter military attack and to keep unwillingpopulations within communist regimes, borders have become multi-functional. They are seen as something to be overcome (throughcross-border cooperation, for example), but also as a discriminatorydivision between peoples (in visa policy). Their functions havechanged in the last decade. When they were the frontiers of cold warEurope, the iron curtain held people in as much as kept them out. Bythe end of the 1990s, this situation had been reversed. Borders havebeen opened from the eastern side after 1989, but they are now beingtightened from the west. Movement across the Schengen zone isloosening frontier controls in the west, but at the same time, bordersbetween Central and East European countries and their neighboursare controlled increasingly tightly, owing to pressure from the EU.Yet both of these border regimes have been wrought in the name ofEuropean integration.

Frontier controls have come to be seen as the EU’s first line ofdefence against instability and its consequences – refugees, crime, andthe breakdown of law and order. But frontiers are also something tobe positively overridden; they are a legacy of the post-1945 divisionsthat the European integration project was designed to overcome.After all, the Treaty of Rome resolved ‘to eliminate the barriers whichdivide Europe’ and aspired to ‘an ever closer union among the peoplesof Europe’, an aim that has been extended to include East Europeanpeoples following the collapse of communism in 1989.1

The implications of extending Schengen borders to Central andEastern Europe are significant for the future of European integrationand also for the security of the wider Europe surrounding the EU


core. After all, ‘Europe’ is largely defined – both geographically andpolitically – by its border policies. We have often heard aspirations tocreate a Europe ‘whole and free’, and EU enlargement has greatlyhelped to achieve this goal. But the interim phase of integrating onlypart of post-communist Europe into the Schengen zone has creatednew dividing lines in this wholeness.

The opening of east–west borders coincided with a burgeoninginternal security agenda within the EU. A policy area that could becalled ‘micro-security’ was growing fast in the 1990s as EU policymakers responded to myriad threats to the security of their citizensby developing new instruments at both national and EU levels. Atthe same time, many of these threats were perceived to be emergingfrom behind the former iron curtain. Central and Eastern Europe(CEE) is seen in the ‘EU-15’ of pre-2004 member states as containingnot just countries that should be protected by the embrace of inter-national security organizations, but also countries that are them-selves a source of potential danger to EU security at the micro-level.Unlike the ‘macro-security’ concerns of the cold war, which primarilyinvolved state-controlled and politically driven threats from nationalmilitaries, the new risks are from private individuals. Governmentswhich have oriented their foreign policies towards joining Euro-Atlantic structures are by definition no longer a macro-security threatfollowing the end of the cold war. But they cannot necessarily stoppeople on their territory from engaging in activities which the EUfinds threatening, such as organized crime or illegal migration.

This privatization of security threats presents governments with acomplex dilemma because autonomous citizens are much more dif-ficult to deal with than state-governed forces in the internationalsecurity framework. These are threats that democratic CEE govern-ments cannot counter by using the means of their repressive prede-cessors. Communist-era internal security regimes have been (largely)dismantled, and one of the new-found freedoms of the populationsis less surveillance by the state.

Border dilemmas for Central and Eastern Europe

The politics of borders also rose in salience in the CEE countries. Themost sensitive and difficult aspects of implementing the EU’s evolv-ing agenda for JHA in CEE have been to do with Schengen and the

Conclusion 151

movement of persons. The spread of organized crime and traffickinggrew increasingly salient during the 1990s (as Miroslav Nozina’schapter (Chapter 2) in this volume demonstrates), and crime andimmigration threats became increasingly securitized (as discussed inKaren Henderson’s chapter (Chapter 1)). Terrorism rose up the polit-ical agenda after 11 September 2001, as in all of Europe, as discussedbelow. But political debate about the EU’s activities in justice andhome affairs matters has been dominated by the question of move-ment of people over EU and non-EU borders.

In the CEE countries, very widespread and intense discussionsabout EU border policies have grown from 1997 onwards. Two topicshave dominated public and political debates: the first is perceptionsof discrimination against CEE citizens, particularly because the EUimposed a transition period on their right to work in most of theEU-15 labour markets for at least two years after accession. The sec-ond issue is the impact of tighter regulation of movement of people –particularly through visa regimes and border controls – on relationswith neighbouring countries.

Internal security is a highly sensitive issue in domestic politics inmost countries. But in Central and Eastern Europe, there are alsounderstandable concerns about the impact of erecting Schengen bor-ders on delicately balanced relationships with difficult neighbours –as far apart as Ukraine, Kaliningrad (part of Russia) and Serbia. CEEpolitical leaders repeatedly expressed their concern that measuressuch as introducing entry visas should not introduce new barriersbetween their populations, but the priority given to EU demands hascaused acute dilemmas for CEE policy makers. Behind the widelyused rhetoric about ‘not putting up a new iron curtain’ lies a com-plex set of compromises whereby each country has tried to navigatebetween EU pressures and other policy concerns, both domestic andexternal. Ultimately, all the candidate countries had to complywith the EU’s demands, and each found its own ways of accommo-dating them, as the chapters in this volume demonstrate. In theircontribution, Iwona Piórko and Monika Sie Dhian Ho (Chapter 3)show what a difficult balancing act that was by looking at the costsand benefits of the EU agenda in the case of Poland.

EU-inspired changes to the status and porosity of the CEE coun-tries’ non-EU borders revived various bilateral issues over the borderslying between the candidates (for example, the Czech Republic and


Slovakia; Hungary and Romania), between candidates and memberstates (Germany and the Czech Republic; Austria and Slovenia), andbetween candidates and non-candidates (Poland and Ukraine;Romania and Moldova). However, joint approaches to dealing withthe regional dilemmas posed by accession were very limited. Thequestion of visa regimes was frequently discussed in CEE parliamen-tary debates and the media, but multilateral cooperation betweenthe candidates was largely informal. The Czech Republic, Hungary,Poland and Slovakia discussed it under Visegrad Cooperation, butmost negotiation on the issue was necessarily conducted bilaterallybetween each country and the EU, owing to the structure of theaccession negotiations.

The policies that the EU-15 transferred to the then candidate coun-tries on borders, migration, asylum and visas are most controversialbecause they affect political relations with neighbouring states andalso economic integration. Other aspects of JHA such as fighting crimeand improving law enforcement required considerable investment onthe CEE side, but they did not have the same scope for disruptingforeign relations.

Visa policies have had a particularly negative reputation in theregion. Restrictions on the right to travel are reminiscent of the coldwar restrictions on personal liberty, and they are generally unpopular.But the candidates differed in how far they tried to resist the EU’sdemands for early imposition of visa restrictions on neighbouringnon-EU countries. Hungary and Poland imposed such restrictions ontheir immediate non-EU neighbours only shortly before accession.However, other candidates implemented visa requirements for Russiaand Ukraine much earlier. The Czech Republic and Slovakia requiredvisas from Russians and Ukrainians from Autumn 2000, for example,even though Slovakia shares a border with Ukraine. Both countriesimmediately had to upgrade their consulates and massively increasethe number of staff dealing with visa applications.

The candidates largely accepted the EU’s agenda for border controlbecause it was a potential veto-point for accession. The politics ofinternal security were so sensitive in the EU’s existing member statesthat the Commission took a very hard line in negotiations. Thecandidates also knew that their accession might be vetoed by one oranother member state if they did not comply fully with the EU’sdemands in the areas of Schengen and JHA.2 But the costs were high

Conclusion 153

for their external relations. The application of EU visa policiesinevitably inhibits economic integration and bilateral cooperationbetween countries that are ‘ins’ and ‘outs’ in the EU accession process.Because it led to the export of EU border policies, Schengen casts ashadow well beyond the EU-25 countries who were members in2004, affecting their neighbours as well (as Sandra Lavenex discussesin her chapter (Chapter 5) in this volume).

The impact of 11 September 2001 and its aftermath on Europe

In the past seven years, justice and home affairs has become the mosthyperactive area of EU policy making, accounting for a significantand growing proportion of new EU legislation. It was already devel-oping in parallel with the enlargement process during the 1990s. Theattacks in New York and Washington DC on 11 September 2001 thengave a major impetus to internal security cooperation in the EU. Butthe momentum did not last long owing to national sensitivities aboutimplementing all the agreed measures in the member states. Parts ofthe anti-terrorist framework agreed by the EU after ‘9/11’ are still notfully in place three years on.

In the three months following the attacks in the USA, EU ministersapproved a raft of common measures against terrorism that wouldotherwise have taken months or years to pass. Political oppositionto the harmonization of rules on internal security ebbed in autumn2001 because no politician wanted to be seen as slow in respondingto the terrorist threat. Some politicians opportunistically used thenew battle against terrorism to reintroduce old proposals – GermanInterior Minister Otto Schily’s idea for a European riot police, forexample, or German and Italian proposals for a common EU customsservice and border guard. But others only reluctantly agreed to shareinformation with partners in other countries whom they do notwholly trust.

The terrorist attacks in September 2001 made it obvious that indi-vidual countries can do little on their own to guard against cross-border threats. Before then, justice and interior ministers were alreadytrying to implement the agenda for the ‘area of freedom, security andjustice’ set by the Tampere European Council in 1999. But the attacksin New York and Washington provided a strong political reason for


moving ahead with proposals that had been shelved in the face ofpolitical opposition and practical obstacles. Most of the measurestaken in autumn 2001 were already in the pipeline. Arguably, only oneof the measures was a direct response to 11 September and had notalready been in preparation – the reinforcement of airport security.

Within two weeks of the attacks in the USA, the European Councildecided to agree on a common definition of terrorism, an EU-widesearch and arrest warrant, and a common list of suspected terroristorganizations. The European Council also pushed for long-delayedcooperation on the exchange of information between national intel-ligence services. Europol – the EU’s fledgling joint police agency –gained a special anti-terrorism unit to cooperate with US counter-parts. The European Council also proposed specific measures to dealwith terrorist threats: the strengthening of air travel security, anextension of the Commission directive on money laundering, and aframework decision on freezing the assets of suspected terrorists.

The most significant of these moves were the common definitionof acts of terrorism and the European search and arrest warrant. Mostmember states did not have a specific offence of ‘terrorism’ before-hand, so they could not prosecute people for incitement to violence,raising funds for terrorists, or being a member of a terrorist group. Inmany EU countries, terrorists could only be caught and prosecutedafter they had committed murder or damaged property. In addition,member states began establishing a common list of penalties for par-ticular offences, with prison sentences specified for particular terror-ist acts in all member states.

The common arrest warrant was a giant leap for the EU, for it requiresthe member states to trust each others’ judicial systems. Once the arrestwarrant has been ratified and implemented by all the member states,extradition procedures between EU countries are to be abolished, andreplaced with a system whereby judicial authorities surrender sus-pects to other member states on the basis of a single warrant. Thatwill speed up the arrest and prosecution of suspected criminals andterrorists. The arrest warrant will also accelerate the integration ofcriminal justice in the EU because it gives substance to the principleof mutual recognition between judiciaries.

The European search and arrest warrant and the common definitionof terrorism take European integration close to the heart of nationalsovereignty. Several of the measures taken since 11 September lead

Conclusion 155

into uncharted territory, with the EU taking its first steps towards theharmonization of national legal systems.

However, after the initial burst of activity in autumn 2001, imple-menting all the new plans has taken a long time, which meant thatthe new CEE members of the EU have had time to catch up. Theagenda rapidly moved into very complex and difficult issues thatrequire detailed work at national level. The success of the counter-terrorism measures ultimately depends on their implementation.That cannot be decided by ministerial meetings alone. It relies on asustained effort to reconcile legal procedures, and painstaking work toensure that the new powers are used wisely by national and Europeanauthorities.

When the European arrest warrant is fully in place, national penalsystems will have to be made more similar. However, it is not clear howfar that harmonization will have to go. The idea behind the principleof mutual recognition is that only a minimum of key areas are har-monized, while the rule is that countries respect decisions made byforeign courts as their own. That means police and judges must haveconfidence in one another’s legal systems – and confidence has longbeen in short supply, especially between Northern and SouthernEurope. The member states have varying traditions on civil liberties,and different social attitudes towards the powers of the state andrespect for the law. Their national and regional police forces have dif-ferent working methods. The accountability of law enforcementagents varies across countries too. Their judicial systems exhibit widelyvarying legislation and practices, as well as constitutional bases. Andthere are fundamentally different legal cultures, with some systemsbased on Roman Law and others on Common Law.

Threat perceptions remain different too. Some countries havelong experience in dealing with terrorist attacks on their own soil:Spain with separatist Basques, the UK with Northern Ireland, andFrance with Algerian militants. But others still feel little immediatethreat, and their publics are less keen on giving the state more powersover individual citizens. In this respect, there is no clear divide betweenthe old and new member states. The new members all sent troops toIraq, and there were concerns about their vulnerability to terroristrevenge attacks by Al Qaeda and related groups. But none of the Centraland Eastern European countries has experienced terrorist campaignsrecently – unlike France, Germany, Greece, Italy, Spain or the UK – so


feelings of vulnerability among the public are more comparable tothose in Finland or the Netherlands.

The EU’s hyperactivity in strengthening internal security after11 September created even greater pressure on the candidates whowill form the new external border of the Union. The associated secu-rity push caused EU negotiators to tighten the technical conditionsfor accession for the CEE countries while they were still candidates.New priorities were added to the list of tasks that candidates have toundertake for internal security, and meeting them was a major chal-lenge for the candidates’ already stretched police and judicial sys-tems. The candidates were regarded as the first line of defence againstthe entry of illicit goods and people into the EU from the east andsouth-east.

The CEE countries were an easy target because the EU could forcethe candidates to undertake internal security measures that its then15 member states would not accept. Pressure on the applicants wasrelatively cost-free: the EU could be seen to be doing something, butwithout restricting the civil liberties of citizens in the EU-15. But nowthat they have joined the EU, the CEE members will have a voiceand a veto in such matters. It is not yet clear how each will approachJHA issues – although the chapters in this volume offer some valuablepointers.

Will the EU continue to liberalize the movement of people?

One of the EU’s greatest achievements is the creation of a zone of freemovement for people to travel from the Arctic to the Mediterranean,and from the Danube to the Atlantic. But although Europeans arebenefiting from this success of integration, they are also increasinglyworried by threats to their security. Immigration is increasingly unpop-ular in many countries, even ones like Denmark and the Netherlandswhich until recently had liberal policies. Terrorism features more andmore in opinion polls on people’s fears, even in countries whichhave not experienced terrorist attack.

As governments across the European continent seek to tackleinternal security threats, the Schengen zone could become harder totraverse rather than easier. It is possible that the politics of fear willlead to the re-introduction of document checks within countries, and

Conclusion 157

particularly on borders. And it is very likely that EU governments willemploy new methods to track the movements of people across theirterritories. EU countries made most progress in liberalizing the move-ment of people during the years immediately following the end ofthe cold war, and before the attacks in the USA in 2001 and in Spainin 2004. Those dozen years may come to be seen as the heyday offreedom for travellers in the EU, before the pendulum swung backtowards security.

Changes in the political atmosphere across the EU will have a directimpact on the new member states of the Union, because they are stilloutside the Schengen zone, waiting for entry. The CEE members’ bor-ders with the old EU-15 countries will still be subject to passportchecks for years to come. The old member states are unwilling toadmit the new members to the Schengen zone of passport-free travelany time soon – and it is the Schengen members which decide, notthe Commission. Even though the new members have already shoul-dered most of the costs – both financial and political – of joining theSchengen system, the old members are increasingly worried aboutmaking it watertight. Officials in the original five Schengen countries(Belgium, France, Germany, Luxembourg and the Netherlands) fre-quently complain that Schengen has a ‘soft underbelly’ along itsMediterranean borders, and they sometimes express regret that Italyand Greece were admitted to the zone at all.

Officials and politicians in the current Schengen countries are thusconcerned to ensure that the Schengen border to the east is lessporous than the one to the south – especially as it is a land borderrather than a sea border. They will be reluctant to let any countryinto the system which has an external EU frontier unless it candemonstrate a very high level of compliance with the Schengen bor-der regime. The Schengen members want to see extremely tight con-trols on the movement of persons and goods over the EU’s externalfrontiers into the new members before removing passport checkswithin the enlarged Union. Customs controls on the movement ofgoods within the enlarged EU have been largely removed since 1 May2004, but those on people have not. The terrorist attacks in Madridin March 2004 have made member states even less willing to relaxborder checks anywhere in Europe.

Even absenting the politics, the new members cannot become fullmembers of Schengen for a minimum of two years after accession for


technical reasons. It will take the EU until at least 2006 to upgradeand extend its database for recording travellers, called the SchengenInformation System (SIS). By then, the criteria for joining Schengen may have become even more onerous. Yet again, the CEEcountries will be running to catch up with the moving target of EUpolicy making.

But although Schengen has caused the new members problems,they will be in favour of the EU taking on a stronger role in justiceand home affairs more generally. Most Central and East Europeancountries have experienced a dramatic rise in applications fromasylum-seekers, so they will probably support more coordination ofmigration and asylum policies in the EU. In 2003, asylum claims inSlovenia more than doubled, while those in Poland increased by athird, according to the UN High Commissioner for Refugees.3 Becauseof these growing challenges, the new members will probably try tojoin any new asylum and migration initiatives that the EU develops,even if some of the old members decide to stay outside.

The future politics of internal security

So far, the public has been keen on tighter European cooperation onsecurity and crime. But will interference in individual liberties makethe EU more unpopular in the longer term? Much depends on howeffectively the member states cooperate under new systems that theEU develops, and whether fledgling institutions like Europol andEurojust become effective agencies. They need to be able to deliverresults that are evident to the public, as well as to maintain a balancebetween the goals of security, justice and freedom.

The key is implementation, to ensure that the new powers are usedwisely by intelligent and capable personnel. More surveillance will beuseless if the information is not acted upon, and intelligence gather-ing is no good if the data are not interpreted properly. Poorly trainedborder guards and airport security personnel are worse than useless:they arouse the hostility of the travelling public without actuallycatching the criminals. Badly paid border guards and baggage-handlersalso pose a security risk, because they are susceptible to bribery andcorruption, and are tempted to collude with organized criminals.

Effectiveness also has to be balanced with accountability. Oversightof the growing European judicial system is sorely lacking, according

Conclusion 159

to human rights groups like Justice. At present, all supervision isintergovernmental, so EU-level activities that affect individual free-doms are largely unmonitored and unsupervised. Europol’s activitiesare monitored only by national governments, with no independentoversight. If it stays with a primarily intergovernmental system, theEU needs an ombudsman to whom individual citizens can appeal forprotection. Here, the changes made in the EU’s draft constitution tothe legal and institutional system so far may be insufficient (as JörgMonar discusses in his chapter (Chapter 6) in this volume). Furtherchanges to the EU’s treaties are likely to be needed in the yearsahead to tighten up oversight and make JHA policy making moreaccountable. The new members could play an important role in thesedebates (see Vladimír Bileík’s chapter (Chapter 7) on their role inthe Convention).

Civil rights campaigners are already raising concerns about howthe EU protects the data it holds on individuals in the SIS database.It contains information on a huge range of people, but the accuracyof individual records is not checked, and its content varies dependingon the national police force that has entered the record. Individualscan gain access to their files only through national data protectionlaws, which differ enormously across the EU’s member states. And itis difficult for an individual citizen to seek to amend incorrect infor-mation on his or her record. The problem of lack of oversight andaccess will become even more acute if Europol gains a new mandateto coordinate work between national secret services and police. Ifsecret service officers are working within Europol, they are likely toshare information with their police colleagues, even if that informa-tion has been obtained through illegal means.

The problem is that the new measures do not just affect suspectedterrorists, but all citizens. The EU’s ‘area of freedom, security andjustice’ can only acquire public trust and legitimacy if it can ensurethat the rights of individual EU citizens and residents are not erodedby all the new powers given to national and international authori-ties. In addition to new programmes for catching criminals, citizensneed new measures to ensure their protection. The pressure groupFair Trials Abroad has proposed a system of ‘Eurobail’ for allowingprovisional liberty to suspects arrested under the EU warrant, and theintroduction of civil rights at EU level (‘Eurorights’) to protect citi-zens across the EU, not just in their home countries. Such initiatives


are sorely needed to balance the new powers being given to Europoland Eurojust. Otherwise complaints about interference from Brusselswill move to a new level, from straight bananas and ‘metric martyrs’to fears of a continent-wide Orwellian Big Brother watching citizens’every movement. Such fears are especially potent in the new memberstates, where memories of unwelcome state surveillance of citizensare still raw.

EU measures on internal security touch very sensitive areas, bothin the EU’s relationship with its member states, and also the states’powers over citizens. In future, EU-level policies will increasinglyaffect the freedoms of individuals. This creates political dilemmas forevery party. On the left of the political spectrum, civil libertiescampaigners are already uneasy about encroachments on personalfreedoms. On the right, eurosceptics are raising questions about thetransfer of new powers to the EU in justice and home affairs. Butpublic safety concerns will drive cooperation and integration in dif-ferent forms none the less, as internal security increasingly advancesvis-à-vis external security as a preoccupation of voters. These dayspeople fear illicit migration, cross-border crime and internationalterrorist networks far more than Russian tanks and missiles.

These debates are becoming as lively in Central and Eastern Europeas they are in the old EU-15. The politics of internal security will con-tinue to resonate across Europe, and the differences between the oldand new members will diminish over time as they tackle commonproblems together. Two lines were starkly clear during the cold war:one between Eastern and Western Europe, and another betweeninternal and external security. In the past 15 years, both have beenrubbed away for good.

Notes

1 Preamble to ‘Treaty Establishing the European Economic Community’,Rome, 25 March 1957.

2 See H. Grabbe, ‘Regulating the Flow of People across Europe’, inF. Schimmelfennig and U. Sedelmeier (eds), The Europeanization of Centraland Eastern Europe (Ithaca: Cornell University Press, forthcoming 2005).

3 United Nations High Commissioner for Refugees, Asylum Levels and Trends:Europe and non-European Industrialized Countries, 2003 (Geneva: UNHCR,24 February 2004).

Conclusion 161

162

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Ministry of the Interior of the Czech Republic, Actualized Concept of FightAgainst Organized Crime, Prague, November 2000.

Ministry of the Interior of the Czech Republic, Security Policy Section,Information on Organized Crime Status in the Czech Republic in 2000, 2.Organized Crime in the Czech Republic, http://www.mvcr.cz/english.html

Ministry of the Interior of the Czech Republic, Updated Strategy of CombatingOrganized Crime, Prague, 1997.

Ministry of the Interior of the Czech Republic, Zpráva o situaci v oblasti migracena území Eeské republiky za rok 2002, Prague, 2003.

Ministry of the Interior of the Czech Republic, Zpráva o situaci v oblasti vere-jného porádku a vnitrní bezpeenosti na území Eeské republiky v roce 1999,http://www.mvcr.cz/dokumenty/bezp_si99/priloha1.html.

National Labour Office of the Slovak Republic, Skrytá nezamestnanost’ a boj snelegálnou prácou, Bratislava, April 2003.

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Office of the Government of the Slovak Republic, Nezamestnanost’ naSlovensku, Bratislava, 2002.

Ondera, P., ‘Skryté riziká ilegálnej migrácie’, Informaeny bulletin, No. 48,Bratislava, Slovenská informaena agentura, 1997.

Schelter, K., Challenges for non- (and Not-Yet-) Schengen Countries, vol. 13,15 March 2003. Geneva: paper presented at the Workshop on ManagingInternational and Inter-Agency Co-operation at the Border, Geneva Centrefor the Democratic Control of the Armed Forces.

Síeáková, E. Faces of Corruption in Slovakia I (Bratislava: TransparencyInternational Slovakia, 1999).

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Bibliography 169

170

Index

accession requirements, andacceptance of JHA acquis 50;achievements 16–19; andadjustment of domestic legislation68; challenges 19–20; Chapter 247–9, 68–9; and closure ofjustice/home affairs chapter 16;coercive power of EU 7; existing/candidate country difference 8;implementation of obligations14–16; and internal problems8–9; new members as full members158–9; and Schengen acquis 9,11–12; sensitive issues 9; visas 17–18

Action Plans 97–8, 100, 104area of freedom, security and justice

(AFSJ) 8, 95, 149; as centraltreaty objective 49; developmentof 20; extending 48–61;importance of 110–12;insider/outsider status 18–19;and joining eurozone 19; andlifting of border controls 19; asmajor area of ‘growth’ 11; andmodern nation-state 110–11;possible effect of new draftconstitution on 112–32;preparation for 1; prospects afterfailure of IGC (2003) 132–4; andpublic trust/legitimacy 160–1;questions/challenges 112;sensitive political issues 11;transition periods 19–20

asylum seekers 13–14, 18, 113, 116

Balkans 25Baltic states 4, 91, 92, 95, 98Belarus 101

border controls 9–11, 17–18,19–20; abolition of internal 49;and border police 140; andCEECs 138–41; changing natureof 150–1; Chibinau view of 93;dilemmas for CEE 151–4; anddraft constitution 116–18; futureburden sharing 140–1; hard/softborders 90–1, 139; importance ofexternal 51; improving 139–40;Kyiv/Minsk view of 92; andliberalizing movement of people157–9; Moscow view of 91–2;and new eastern neighbours96–102; Polish 50, 51, 54–5, 56,57, 60, 61; and privatization/security threats 150–1;programme initiatives 99–102;Slovak-Ukraine 66–86; threatsfrom third countries 86, see alsointernal security

Brussels (2003) 133Bureau for Fighting Organized

Crime (Poland) 32Bureau for State Protection

(Poland) 34Buzan, O. 4

Central Affairs Council (EU) 103Central and Eastern European

countries (CEEC) 1–2, 89, 95,102–3, 150; between statusquo/adaptability 143–6; borderdilemmas 138–41, 151–4; anddecision making on EU policy 3;domestic transformation 2–3;and EU accession 3; and fate ofdraft constitution 142–6;members-to-be/justice and home affairs 138; position of in

Central and Eastern Europeancountries – continuedIGC 136; and qualified majorityvoting (QMV) 143, 145; role ofCEECs/context of Convention321–8; as shapers of AFSJ 135;and solidarity clause 141–2

Centre for InternationalCooperation between Police Forces 42

Charter of Fundamental Rights114–16, 130, 132, 142, 143–4

Clean Hands programmes 35Cologne (1999) 97Common Strategy with Russia

(1999) 97Convention on the Future of Europe

3, 135; caveats 137; and CEECs136–8; nominations to 137;official status of representatives137–8

Copenhagen (2002) 56, 60,103, 136

Corporate Governance Risk Survey33, 41

Council of Europe 7, 50crime, and draft constitution

141–2, 144; drugs 96, 97; judicialcooperation 119–20; moral panicover 7, 8; people trafficking 96,97; perception of 4–7; reductionin 7; and Slovak–Ukraine border76, 78, 84, see also organized crime

Czech Criminal Code 36–7Czech Republic/Slovakia 136,

143–4; achievements 16–19; andasylum-seekers 13–14; backlashagainst communist period 5–6;and border regimes 9–11, 17;challenges 19–20; cooperationwith international lawenforcement agencies 42–3;crime in 4–7, 25, 26, 28, 30–1,34; and economic reforms 4–5;foreigners living in 5; andimmigrants 4–7, 12–13, 14;

internal security agenda 2–3;joining new Europe (2003–)16–20; policing in 14, 18;position papers 9; preparing forEU accession (1996–2002) 7–16;security system in 39–40

Czech Security Intelligence Service 34

Czechoslovak Penal Code 37

decision-making system 124–7, 130draft constitution, and CEECs

142–6; and Charter ofFundamental Rights 114–16;cumbersome compromises in131–2; and democratic/judicialcontrol 128–30; division ofpowers/subsidiarity 121–3;implementation of 127; judicialcooperation in civil matters118–19; judicial cooperation incriminal matters 119–20; newlegal framework 112–14; overallassessment of 130–2; and policecooperation 120–1; policies onborder checks, asylum,immigration 116–18; possibleeffect on AFSJ 112–32; prospectsafter failure of IGC (2003) 132–4;reforms of decision-making system124–7; revised policy-makingobjectives 116; solidarity as newintegration principle 123–4; asunbalanced 131

Dublin (1990) 67

East Central Europe (ECE),democratic changes in 27–9;increase in crime in 28–9;international cooperation 42–3;judiciary in 41; legal systems of36–8; legislation in 28; organizedcrime in see organized crime;restructuring legal systems 44;security forces in 38–41; socialsuccess in 27–8; in transition 29

Index 171

European Commission 3European Committee on Crime

Problems report (1999) 31European convention on

Extradition 42European Convention on Human

Rights 115European Convention on Mutual

Assistance in Criminal Matters 42

European Convention on theSuppression of Terrorism 42

European Judicial Network 55European Union (EU), changes in

political climate in 158; effect ofnew neighbours on 89–90;external effects of enlarement90–3; internal security149–50; justice/home affairsrequirements 7–8; andliberalization of movement157–9; negative list of countries67, 70; pillars 112–13, 131;preparation for accession to 7–16; and security threats 155–7

Europol 42, 115

foreign policy, attempt to bind thirdcountries 93–4, 95–6; bordersecurity 95; drug trafficking 94;immigration/asylum-seeking 94;importance of 94; migration94; non-military aspects 94;police/judicial 94; andreadmission agreements 95–6

GUUAM 102

Hill, R.J. 93human rights 54Hungary 136; crime in 25, 26,

31; ‘mafia bill’ 38; securitysystem in 39

immigrants, immigration 4–7,12–13, 14, 29; Action Plan (2000)

97; and draft constitution 113,116; illegal 78–81, 102; labour-based 81–4, 92; and Poland 51,53, 54–5

Intergovernmental Conference(IGC) (2003) 132–4, 135, 137,143, 144–5

internal security, and accountability159–60; and AFSJ 1–2; and civil rights campaigns 160; and common definition ofterrorism 155; crime,immigration, tourism 4;developments in 1; and draftconstitution 110, 111, 114;economic threats 4–5; EU-inspired changes 152–3; externaldimension 95; future politics of 159–61; as highly sensitiveissues 152–4; hyperactivity by EU 157; impact of September11th on 154–7; implementationof measures 159; micro security/macro-security concerns 151;military threats 4, 6; andmovement of people 157–9; andpolitics of borders 151–4;priorities/problems 2; andprivatization of security threats151; and search and arrest warrant155–6; as sensitive area 161;threat perceptions 156–7, see alsoborder controls; CzechRepublic/Slovakia

justice and home affairs (JHA)48–9, 68; agenda 1; agenda for149; closure of 16; and draftconstitution 111; EUrequirements 7–9; externalgovernance in 104–5; foreignpolicy dimension of 93–6;further initiatives 101–2; andmembers-to-be 138; andMoldova 101; movementbetween countries 17–18, 19–20;new neighbour role in 89–90;

172 Index

justice and home affairs – continuedand Poland 50–1, 54–5, 56, 58,59; public awareness of 16–17;relations with new easternneighbours 96–102; and Russia97–9; special character of 49–50;and system of mutuality 20; two-stage procedure 50; and Ukraine99–100

Löwenhardt, J. 93Luxembourg (1997) 68

Moldova 93, 96, 101Moldova Country Strategy Paper

(CSP) (2001) 101

NATO 1, 4Northern Dimension Initiative (NDI)

98–9

Octopus project (1996–98) 33organized crime 25; access to

Western Europe 33; Action Plan(2000) 97–8; classical activities of26; conclusions concerning43–4; and democratic changes1980s/1990s 27–9; drugs 26–7;economic basis 27; in economy/society of ECE 32–5; fight against53; international 29–30; andinternational cooperation 42–3;judicial/police cooperation 97;and the judiciary 41; measuresagainst 97–9; numbers involvedin 30, 31, 32; phenomenon of 26–35; and reconstruction of legal system 36–8; responses to 35–43; restructuring of29–32; Russian participation in 34; and security forces38–41; as serious threat 43–4;socialist style 26–7; spread of 152; transit areas/targetcountries 30–1; types of groups 30–2; violence of 33, see also crime

Partnership and CooperationAgreement (PCA) 97, 101

Poland 4, 90, 98, 136, 143;accession preparations 48;accession-linked processes 52;border issues 50, 51, 54–5, 56,57, 60, 61, 91, 92; challenges for56–9; and coherent strategicpolicy making 54–5; cooperationwith international lawenforcement agencies 42; andcooperation/exchange ofinformation 54; costs/benefits ofaccession 59–61;creation/strengthening of legalframework 52–3; crime in 25,26, 28, 32, 53–4; financial aspects56, 57, 60; immigrants in 51, 53,54–5; improvement in staffing,training, equipment 54;opportunities for 52–5; overallbenefits/opportunities 55; post-accession challenges 48–9;security system in 40; socio-economic challenges 57; socio-political concerns 58–9; asspecial case in field of JHA 51–2;trade implications 57–8;transformation of political system51; and visa regime 51–2, 53,56–7, 58–9, 92

police 120–1Polish Criminal Code 37–8Pre-accession Pact on Organized

Crime (1998) 42

Russia 98, 104; border issues91–2; cooperation with JHA 97–9

Schengen acquis 48, 50, 55, 68–70,91, 95, 138–9, 141

Schengen Agreement (1985) 1, 9,11, 49–50, 114, 150, 158

Schengen Group 94Schengen Information System

(SIS) 49, 139

Index 173

Schengen Treaty, ImplementationConvention (1995) 67

security issues see border controls;internal security

September 11th 141, 150, 154–7Slovak–Ukraine border, adapting visa

policy to EU acquis 68–70;background 65–6; bilateral policycontext 702; border regimebefore 1999 66–8; and Conceptof alignment (2000) 69;conclusions concerning 84–6;crime 76–8; and Harmonisationof visa policy with EU 69; illegalmigration 78–81; impact of EUaccesion on border regime66–72; impacts of visa regime on72–84; labour migration 81–4;legal movements ofpersons/transport 72–6;liberalization of regime 67;regulatory measures 67; traveldocuments 67; treaties (1993)signed 66–7; visa regime 92

Slovakia see Czech Republic/SlovakiaSoviet Union 4, 25subsidiarity 121–3

Tacis (CBC) programmes98, 101

Tacis Regional Cooperation StrategyPaper (2004–6) 98

Tampere European Council (1999) 154

Task Force on Organized Crime 99

terrorism 141, 154–7, 157Treaty of Amsterdam (1999) 7, 11,

49, 68, 94, 97, 99–100, 111Treaty of Maastricht (1993) 110Treaty of Nice 136, 143, 145Treaty of Rome 150

Ukraine 96, 104; aim to becomefull-fledged EU member 100;cooperation with JHA 99–100;and illegal migration 100, 102;and trafficking of people 100;visa-free travel with Poland 92,see also Slovak–Ukraine border

UN Convention againstTransnational Organized Crime 42

United Nations (UN) 7

visas 17–18; adapting policy to EUacquis 68–70; impact ofimplementing 65–6; negativereputation of policies 153; andPoland 51–2, 53, 56–7, 58–9, 92;requirements for 17–18; andSlovak–Ukraine border regime72–84

Visby Summit (1996) 99

Wæver, O. 4White, S. 93Wider Europe initiative 102–4, 105Wilde, J. de 4working group (WG) X ‘Freedom,

Security and Justice’ 138, 140

174 Index

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