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C:\Documents and SettjngsMproctor.ULLU-ocal SetBngsMemporary Internet Fites\OLK36\Copyright - thesis.doc Visa Policy within the European Union Structure: Competence, Convergence and Consistency Annalisa Meloni University College London PhD Law UMI Number: U591802 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a complete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. Dissertation Publishing UMI U591802 Published by ProQuest LLC 2013. Copyright in the Dissertation held by the Author. Microform Edition © ProQuest LLC. All rights reserved. This work is protected against unauthorized copying under Title 17, United States Code. ProQuest LLC 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106-1346 Abstract This study focuses on European integration of national visa policies as a case study on the constitutional structure of the European Union (EU). The thesis starts by tracing the nature of visas in international practice and in national laws. Visas are inextricably linked to the concept of the State and to some of its essential functions. They express the sovereign right to control entry into the State, play an important role in recognition of other States and governments, and reflect information from overseas embassies. From the national point of view, they are an instrument of foreign policy and of internal security. The present constitutional design of the EU permits the Member States to retain sovereign status and autonomy in the maintenance of internal order and security through recourse to the intergovernmental method for cooperation on foreign and security policy (the Second Pillar) and for police and judicial cooperation in criminal matters (the Third Pillar). Increasingly, the two legal methods deployed by the EU (the Community and the intergovernmental methods) cross-fertilize and the EU acts as a ‘unity’. Against this background, the thesis traces the development of the common policy on short-term visas and its characteristics. Within the EU constitutional structure, the nature of visas is at the heart of the difficulties which have been encountered in the process of harmonization and explains thesui generis character of the common policy. The thesis describes cooperation before the Treaty on European Union adopted at Maastricht, under the Schengen Convention and under the Maastricht Treaty. It considers the highly complex legal framework introduced by the Amsterdam Treaty and changes proposed in the Draft Constitutional Treaty. It further considers the issue of ‘consistency’ with regard to the overlap of powers under different Pillars of the EU on visas and with regard to policy formulation on the ‘area of freedom, security and justice’. The thesis finally draws conclusions on what visa policy reveals on constitutional issues such as vertical division of competence, convergence of legal methods, consistency and the increasing complexity of the European legal framework. 2 TABLE OF CONTENTS Preface 8 Table of Abbreviations 9 INTRODUCTION 11 1 VISAS IN INTERNATIONAL AND MUNICIPAL LAW 17 1. Limits on state discretion over the movement of persons across state frontiers 17 1.1 State discretion over entry, residence and expulsion of aliens 17 1.1.1 Limits on expulsion under rules of general international law 17 1.1.2 Movement of special categories 18 1.1.3 Common travel areas and passport unions 23 1.1.4 Treaties on commerce and establishment and economic integration 26 1.1.5 Human rights 26 1.2 Limits on the State’s discretion over exit of its nationals 30 1.3 Basic international law rules governing movement across frontiers 31 1.3.1 The State’s duty to admit its own nationals 31 1.3.2 The State’s right to protect its own nationals 33 1.3.3 Limits on the State’s discretion to define nationality and denationalize 33 1.3.4 Legal consequences flowing from the admission of aliens 35 2. Legal and political significance of passports and visas 36 2.1 Definition and functions of passports 36 2.1.1 Passports and‘retumability’ 37 2.1.2 Passports and diplomatic protection 39 2.1.3 Passports as an expression of sovereignty 40 2.1.4 Passports as a political and security instrument 42 2.2 Definition and function of visas 43 3 2.2.1 Implications of the visa as a government official stamp 44 2.2.2 Legal consequences of a visa in international law 45 2.2.3 Visa requirements and bans as a political instrument 47 2.2.4 Legal implications of a visa under domestic legislation 49 2.2.5 Policy functions of visas 50 3. Conclusion 54 2 THE STRUCTURE OF THE EUROPEAN UNION 56 1. Introduction 56 2. Essential features of the Community method 60 3. The intergovernmental Pillars 68 3.1 The Maastricht Treaty 68 3.1.1 The Second Pillar 68 3.1.2 The Third Pillar 73 3.2 The Amsterdam Treaty 74 3.2.1 The Second Pillar 74 3.2.2 The Third Pillar 79 4. Relationship between the Pillars 83 5. The Constitutional Treaty 85 6. Conclusion 92 3 FROM EARLY STEPS TO FAILURE OF THE MAASTRICHT SYSTEM 94 1. The proposed passport union 94 2. Pre-Maastricht Cooperation 97 2.1 The Single Market Project and interpretation of Article 8a 98 2.2 Intergovernmental cooperation: the Ad hoc Group on Immigration and the Coordinators Group 101 2.3 The Schengen Convention 104 2.3.1 Rules on visas under the Schengen Convention 108 3. The Maastricth Treaty: Article 100c and the Third Pillar 117 3.1 The negotiations 117 3.2 The Third Pillar on Justice and Home Affairs 120 3.2.1 Relationship between the Third Pillar and the Community 123 4 3.2.2 Criticism of the Third Pillar 125 3.2.3 Results 127 3.3 Article 100c EC 128 4. Progress on visa policy under the Maastricht Treaty 129 4.1 The Visa Regulation and the Draft External Frontiers Convention 129 4.1.1 The Commission’s proposals 129 4.1.2 Disagreement over the division of competence 131 4.1.3 T he‘black’ list 132 4.1.4 Results 134 4.2 The Joint Action on Airport Transit Visas 135 4.2.1 Dispute over competence: the Airport Transit Visas Case 135 4.3 The Regulation on a uniform format for visas 136 4.4 Other measures 137 5. Conclusion 138 4 AMSTERDAM AND BEYOND 140 1. Title IV EC of the Amsterdam Treaty 140 1.1 The negotiations 140 1.2 Provisions of Title IV 143 1.2.1 Opt-outs 143 1.2.2 Legislative procedure 145 1.2.3 Jurisdiction of the ECJ 148 1.2.4 Provisions safeguarding national competence 149 1.2.5 Emergency situations 151 2. The Vienna Action Plan and the Tampere European Council 151 2.1 The Vienna Action Plan 151 2.2 The Tampere European Council 155 3. The Treaty of Nice 157 4. Changes under the Constitutional Treaty 158 5. Measures on visas under the Amsterdam Treaty 160 5.1 Visa lists 160 5.1.1 Regulation 539/2001 161 5.1.2 Airport transit visas 174 5.2 Conditions and procedures for issuing visas 175 5 5.3 The uniform format for visas 178 5.4 Rules on a uniform visas 181 Measures under development 183 Conclusion 184 VISA POLICY IN THE THREE-PILLAR STRUCTURE 187 Managing the three-pillar structure: the EU as a unity 187 Consistency of Union activity under the Maastricht Treaty 195 2.1 Disputes over competence 195 2.2 Cross-pillar measures 196 Consistency of Union activity under the Amsterdam Treaty 200 3.1 Nature of the common visa policy: mutual recognition of the conditions of entry and cooperation under the intergovernmental Pillars 200 3.1.1 Recognition of States and governments 201 3.1.2 Harmonization of criminal laws under the Third Pillar 203 3.1.3 Harmonization of foreign policy positions and implementation of visa bans 205 3.1.4 The Member States’ international obligations to grant access into their territories 208 3.1.5 The role of the Community institutions 210 3.2 Local consular cooperation 214 The ‘area of freedom, security and justice’: consistency and maximization of Union activity 220 4.1 The European Council: formulating Union overall policy 221 4.1.1 Conclusions of the European Council 222 4.1.2 Common strategies 225 4.1.3 Implications of the role and approach of the European Council 227 4.2 The Council and the Commission 229 4.2.1 The Vienna Action Plan 229 4.2.2 Comprehensive Plan to combat illegal immigration and trafficking in human beings 229 6 4.2.3 Integration of justice and home affairs concerns into the EU external policies 230 4.2.4 Coordination of treaty objectives 234 5.

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