Select Committee on European Union Twenty-Ninth Report

CHAPTER 4: alternative models of european border controls

A range of different models

42. The political emphasis on the need to enhance the management of the EU external border has led to the plethora of activities described in the previous chapter, with the participation of not only most Member States but also EEA countries and future Member States. The activities range from the creation of more centralised forms of border management (in the form of SCIFA+ and now the PCU) to operational co-operation and joint projects. These forms of action cannot currently be translated into a coherent and clear model of border management in the EU. This may be the result of the different approaches by the Commission and various Member States (including some of the accession countries).

Centralised models

43. The Commission has largely advocated a centralised model. Its 2002 Communication called for the establishment of a European Corps of Border Guards supporting the national services of Member States.[47] The term was dropped in the subsequent Council Action Plan, which referred to the creation of a "rapid response unit" which could be deployed at any time and place.[48] In his oral evidence to the Committee, Mr Faull, the Director General for Justice and Home Affairs at the Commission, referred to a European Border Guard as a unit in support of the national border guards and not as a supra-national body replacing them.[49] The wording in the recent Commission Communication on illegal immigration prepared for the Thessaloniki European Council is stronger: it calls for operational co-ordination "to be developed with the final aim of building up the common and integrated European policy for the management of the external borders and creating the European border guard" (emphasis added).[50] It also suggests that the creation of a Community operational structure resulting from the separation of the "operational" Common Unit from the "strategic" SCIFA "could also mark the first step on the road to the creation of a 'European Corps of Border Guards', which the Commission still firmly believes is necessary to support and complement the actions of Member States' bodies in the management of their external borders".[51]

44. A centralised model is also advocated by Germany. During our visit to the German Interior Ministry we were told that there should be a body in Brussels above national border authorities with the task of supervising, evaluating and co-ordinating their work. This body or steering committee would have a command and control centre responsible for finding out exactly where illegal migration or cross-border crime took place and to what extent. Our witnesses told us that there was a need for such a centre, which could deal with emergencies and develop prevention methods;[52] and that a European Border Police must be structured along operational lines, "that is every country can structure it along their own ideas but any body being placed above the individual structures of the Member States must have a certain influence" Indeed, Dr Frehse suggested that it should be able to "instruct" Member States.[53]

Operational co-operation

45. The United Kingdom Government emphasises operational co-operation rather than centralisation. In his evidence to the Committee, Lord Filkin, then Parliamentary Under-Secretary of State at the Home Office, emphasised more than once the importance of the co-operation mechanisms within SCIFA+.[54] The emphasis is on improving operational co-operation by using an intelligence-led approach rather than legal harmonisation. He emphasised that it was preferable to build on existing capacity "without having to think about constructing some almost monstrous legislative bureaucratic structure".[55]

Trust with neighbours

46. A different viewpoint on border controls in Europe came from the Finnish Government, whose representative highlighted the importance of trust with neighbouring non-EU countries. Mr Järviö, the Finnish Director General, used the example of the Finnish-Russian border. There, co-operation is based on a high level of trust between the Finnish and Russian guards, which is reinforced by close working together at the local level, where any incident would normally be resolved. Mr Järviö viewed the building of trust with the new EU neighbours as a major political task for the EU, emphasising that "a border cannot be controlled from one side only".[56]

47. A similar view emphasising co-operation with neighbouring countries was advocated by the Polish Border Guards, who emphasised their own co-operation arrangements with the Lithuanian and Ukrainian authorities.[57] They were against common border patrols with guards from other Member States—as Colonel Kasiñski noted, "I believe each one should try to protect their own borders".[58]


48. The idea of establishing a European Border Guard is one of the most ambitious which has so far appeared in the context of EU justice and home affairs, but, as the above analysis shows, there is little consensus about precisely what it means.[59] The natural meaning of the term is a corps or force of some kind. No one is proposing a multinational, uniformed force that would replace national border guards. But it is clear from its latest Communication (see paragraph 43 above) that the Commission does envisage in the longer term a force that would support the efforts of Member States; and this view is supported by some Member States, notably Germany. Such a force would meet some of the needs for burden-sharing among Member States and could help to ensure high standards of external border controls in the enlarged European Union. It could also provide a reserve "rapid reaction" force to assist national border guards under pressure as a result of an emergency of some kind. Yet there is clearly no consensus among the Member States on whether such a common force is actually needed, and even those supporting it have different ideas about its shape, task organisation and the time-frame for achieving it.

49. In the meantime under the term "integrated border management" other forms of progress on co-operation on external border security, as described in the previous chapter, are being given priority and may actually prepare the ground for a later implementation of the European Border Guard project.

50. There is a clear need for effective co-operation between Member States to provide a more uniform level of security at external borders. Effective controls at the EU's external border protect all the Member States, including the United Kingdom and Ireland despite their non-participation in Schengen. For the Schengen States, which do not maintain controls at their internal borders, common standards are essential since, once a person is admitted to one of the Schengen countries, he or she is free to move on to any other Member State. The State carrying out controls at one particular point of its external borders therefore takes responsibility for the security of the Schengen area as a whole; and the security of the whole area is only as strong as the weakest link in the chain of external border controls. Consequently all the Schengen States have the strongest interest in co-operation and in meeting certain common standards and procedures. For the United Kingdom and Ireland the need is not so pressing, but more effective controls at the external border will benefit them by reducing the pressure on their borders. We welcome the greatly increased level of practical co-operation between the Member States on external border issues and the United Kingdom's active participation in them, although, as we argue in the next chapter, there is some inconsistency in the United Kingdom's approach, given its non-participation in the main elements of Schengen.

51. Enlargement will change the shape of the EU significantly, particularly at the much longer eastern border, and will require a major effort by the new Member States and continuing support from the existing Member States. It would be inequitable for the Member States that happen to have the longest sections of the EU's external border to control to bear the disproportionate burden of protecting them. In our Report on Enlargement and EU External Frontier Controls in 2000 we said that that some existing Member States were "likely to resist any suggestion that there should be a common EU 'pot' to finance frontier controls".[60] It is striking how opinion has shifted since then to the point where there is now a consensus in favour of burden-sharing in this area. The case for financial burden-sharing is unarguable; we welcome the specific provision made for it in the draft Constitutional Treaty and the Government's acceptance of it in principle.

52. At the same time the requirement on the new Member States to apply the full Schengen regime has implications for their political and economic relations with their neighbours, Belarus, Moldova, Russia and Ukraine. The imposition of a visa regime has had adverse effects on cross-border trade and other contacts with these countries. It is extremely important for relations with those countries and indeed for their stability that EU external border control requirements do not erect unnecessary barriers against them; and we welcome measures to ease visa restrictions for traders and others living near the border who need to cross it regularly.[61] We strongly endorse the point made by many of our witnesses about the need for trust between authorities across a common border and we fully support the general thrust of the Commission's Communication on the "new neighbours".[62] It is important that preoccupation with EU integrated border management does not displace the equally important work of building up trust and effective working relationships with the new neighbours.

53. In our view the case for a fully fledged multi-national force has not been made:

  • It would have significant implications for national sovereignty, particularly if the force were to be responsible to the Commission, which has not previously been given responsibility for an operational service, and it would also raise problems of accountability (discussed further below).
  • There is no reason to think that given the necessary financial and technical assistance the new Member States will be unable to operate an effective control at their external borders.
  • Each Member State knows its own borders best and is best equipped to co-operate with its non-EU neighbours.
  • As the law currently stands, there could be legal problems in border guards exercising powers outside their own jurisdiction, as already shown by the experience of recent projects. The Presidency's report referred to in paragraph 38 found that, "The absence of a proper legal framework for seconding staff to other Member States has proved itself a deficiency in all these cooperation projects and programmes. In some instances participating staff from Member States were limited to observer status".[63]
  • It is unclear what a multinational force would add, and there would be a danger of misunderstanding as a result of language and other differences.

54. The last point is important and is relevant to joint operations as well as a possible European Border Guard. We were struck when we visited the German/Polish border by the fact that, despite the close co-operation between the German and Polish border guards, there were obvious difficulties in communication because of the apparent absence of a common language. There have also been reports that Operation Ulysses was hampered by language difficulties, although Lord Filkin told us that English was chosen as the operational language.[64] In this context we were interested to hear of the work done by Dr Edward Johnson of Wolfson College, Cambridge, who has undertaken pioneering work in developing specialised "languages" for specific operational situations, particularly in the policing field.[65] Dr Johnson's work has great potential for facilitating communication in operational co-operation in the border control field, and we urge those concerned to examine further its possible application in such situations.

55. Mr Faull, the Director General for Justice and Home Affairs at the Commission, drew an interesting comparison with customs controls in the EU, which he suggested provided a model for border controls on people.[66] The European Community was a customs union from the outset. It operates a unified customs code, under which the same customs duties, classification and valuation rules etc are applied wherever goods enter the Community. However, in our view it is significant that this is achieved satisfactorily with each Member State retaining its own customs service and we see no reason why border controls on people should not operate in a similar way.[67]

56. We also have some reservations about the proposal that there should be some form of reserve force that could be deployed at short notice to immigration "hot spots". Such a force would be likely to encounter the same difficulties referred to above in operating in unfamiliar territory. It is not clear what such a force would do when it was not required to assist in an emergency. The United Kingdom Immigration Service is not structured to contribute significantly to such a force.[68] If on occasion there is a need for a national border guard to seek temporary reinforcement from another Member State, what Mr Faull described as a system of "mutual assistance" between the national border guards,[69] we believe that it would be better for the arrangements to be made bilaterally.

57. The Council, most appropriately within the PCU, could, however, usefully provide a clearing house facility for such requests. Other Member States responding to a request for assistance would then temporarily delegate appropriately qualified units of their national border guard forces to the requesting Member State. As these requests are most likely to arise in relation to temporary shortages of specialised personnel and equipment, it would be useful if the Member States could agree on putting together a catalogue of capabilities similar to that existing in the anti-terrorism field, so that in case of need sources for temporary reinforcement could be more easily identified. The deployment of such temporary reinforcements could be an effective instrument of solidarity in responding to challenges at the external border, provided that appropriate funding arrangements were agreed.

Integrated border management: democratic and legal challenges

58. Whether or not the case for some form of European Border Guard eventually prevails, the current operation of the integrated border management agenda already poses significant legal and democratic challenges. Operational decisions are taken by a unit situated within the Council consisting of national border guards, whose decisions—it appears—will not take the form of legislation, which would be subject to scrutiny by both national parliaments and the European Parliament. Numerous operations involving joint border controls have been taking place, but no rules have been adopted regulating the powers and accountability of the members of these teams. Co-operation is intelligence-led, based on risk analysis and the exchange of information, but no data protection rules have been adopted. The nature, powers and accountability of the current central structures are far from clear, and a number of our witnesses have argued that legality, human rights and accountability issues were not sufficiently dealt with in the Commission and Council proposals.[70]

59. Creating a centralised body might provide some safeguards, to the extent that such a body was visible and its functions subject to clear legal rules and mechanisms of democratic accountability. Eurojust, the EU's judicial co-operation unit, provides a good parallel. Eurojust is composed of prosecutors and magistrates from each of the Member States, who help to co-ordinate the investigation and prosecution of cross-border crime. In this quasi-operational role supporting national police and judicial authorities in the execution of their tasks Eurojust performs activities largely equivalent to the Practitioners' Common Unit. But unlike that Unit, Eurojust has been established by EU legislation prescribing in detail its competence, tasks and accountability; and a Joint Supervisory Body specifically established for this purpose exercises rigorous oversight of its data protection regime. Any change in Eurojust's mandate is subject to parliamentary scrutiny at both the national and EU level.

60. Strikingly, the creation of a common unit as envisaged by the conclusions agreed at the Justice and Home Affairs Council in June 2002 does not provide any such safeguards. The Unit, which will have operational powers, will function on the basis of meetings of national border guards. It is not established by law and its tasks and powers are not defined—nor is it subject to any data protection safeguards. Its activities will not be subject to scrutiny by the European Parliament or national parliaments nor to judicial control. We believe that that is unsatisfactory. It is essential that any EU body responsible for border controls should have a clear legal base and be subject to detailed accountability and data protection safeguards. The establishment of Eurojust provides a useful precedent.

61. Similar safeguards must apply to the operation of the Centres of Excellence being set up, if they are granted coercive powers and powers to receive, analyse and exchange data. All common EU border control activities should be subject to effective data protection standards, particularly if they involve risk assessment and profiling and intelligence sharing.

62. There is also a need for greater supervision of joint border operations. At present the rules on the powers and accountability of the officers taking part in these operations are unclear. Are they subject to the legislation of the country in whose territory they operate? What happens in cases where a boat is in international waters? It is important that clear legal rules applying to joint operations are established, including rules on the powers of border guards and the remedies available to individuals when these powers are exceeded. As one of our witnesses noted, this may present even greater problems than the legal difficulties arising from border guards operating in another Member State.[71]

63. One of the future priorities is the development of a common curriculum for border guards.[72] This can provide important safeguards, to the extent that it can offer specific guidance on the legal rules that border guards must follow when exercising their duties. It is essential that guidelines for border guards take full account of international human rights principles and are drafted with the utmost care to combat racial discrimination in the application of controls on entry and to avoid racial stereotyping.

Current institutional structures

64. In his evidence to the Committee, Mr Faull referred to the problems of the division of EU action on border controls between the First and Third Pillars, admitting that "we have not yet achieved the right sort of institutional mechanisms … which would bring with them the necessary democratic scrutiny".[73] At present there is a legal basis for Community measures on external border controls in Title IV of the EC Treaty, while police operations (including activities by joint investigation teams) are a matter for the Third Pillar. This may lead to a fragmentation in the legal regulation and accountability of joint border operations in the EU and impede the development of a transparent and coherent framework of border management. This concern was shared by a number of witnesses.[74] We welcome the proposals in the draft Constitutional Treaty, which should bring about considerable improvements by merging the First and Third Pillars and subjecting measures adopted in the area of freedom, security and justice to a high level of judicial control and parliamentary accountability. The development of a coherent EU border management framework will, as we explained in paragraph 8, also be facilitated by the insertion in the Treaty of a specific legal base for "the gradual introduction of an integrated management system for external borders".

Inter-agency co-operation

65. As we explained in Chapter 2, a lot of official activity takes place at the border, and a range of agencies operate there. It is important that in looking at ways of enhancing EU co-operation at the border the need for close co-operation both with agencies on the other side of the border (see paragraphs 46-47) and between a Member State's own border services (immigration, customs, police) within each country is not overlooked. We were impressed by the evidence we received of the close co-operation that exists between the Finnish border services, as a result of which people and vehicles have to stop only once when crossing the border and not for separate immigration and customs checks.[75] We welcome the measures taken within the United Kingdom to promote closer co-operation between border agencies following the report of the House of Commons Home Affairs Committee on Border Controls,[76] as described in the supplementary memorandum that Lord Filkin submitted, in particular the initiatives taken by the Border Agencies Working Group.[77] We were surprised and disappointed, however, that Customs and Excise declined to submit evidence to us of their role in operating border controls on the ground that their concern was only with the movement of goods. It is clear to us that controls on goods cannot operate in isolation from controls on people and vice versa. It is also likely that the establishment of a European Border Guard would have implications for Member States' customs services.

47   Pages 20-22. Back

48   Paragraph 90. Back

49   Q 197. Back

50   COM(2003) 323 final, 3 June 2003, pages 8-9. Back

51   Op cit, page 19. Back

52   Q 40. Back

53   Q 41. Back

54   QQ 116, 126, 129. Back

55   Q 129. Back

56   Q 1. Back

57   Q 76. Back

58   Q 79. Back

59   As Lord Filkin observed in evidence, "It is a phrase that has been thrown about loosely and when you discuss it with people you find that they have varying views of what it means" (Q 127). Back

60   Op cit, paragraph 88Back

61   p 89. Back

62   Wider Europe-Neighbourhood: A New Framework for Relations with our Eastern and Southern Neighbours, COM(2003) 104 final, 11 March 2003. Back

63   Op cit, page 33. In Operation Ulysses we understand that UK participation (in the form of a Customs cutter) was limited to maintaining a presence in the operational area and reporting sightings because of a lack of powers in international waters in relation to illegal immigration. Back

64   Q 118. The Home Office regarded the operation as a success in terms of deterrence as no irregular migrants were detected (p 34), but Professor Guild told us "they had terrible problems about language and communications".  Back

65   p 91. Back

66   Q 190. Back

67   The idea of a Community Customs Service was put forward by the Commission some years ago, but did not make progress. Back

68   The situation in Germany is quite different. There, as our German witnesses explained to us, there is a standby force of 11,000 officers available for riots or other emergencies. If the Border Police need to deploy some of their officers to assist another Member State, they can draw replacements form the standby force (Q 47). Back

69   Q 198. Back

70   Professor Guild, QQ 143, 157; Mr Bort QQ 177, 178; Dr Guiraudon p 90; JUSTICE, pp 92-93; Statewatch pp 100-101. Back

71   Professor Guild, Q 161. Back

72   See paragraph 36. Back

73   Q 202. Back

74   Europol, p 86; Mr Järviö Q 22; Mr Bort Q 177; Professor Guild Q 148. Back

75   Q 9. Back

76   See footnote 8. Back

77   pp 48-49. Back

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