EU TFEU: Border checks, asylum and immigration

The EU’s common external borders are meant to lead to an integrated management system in the long run, according to the Treaty of Lisbon. Legislation is envisaged for visas and external border checks.

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Article 77 of the Treaty on the Functioning of the European Union (TFEU), starts Chapter 2 with provisions on border checks, asylum and immigration. The Article is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), then renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; pages 99–100), with the location of the provision added from the table of equivalences (page 460 to 463):

Part Three ‘Policies and internal actions of the Union’

Title V TFEU ‘Area of freedom, security and justice’

Chapter 2 ‘Policies on border checks, asylum and immigration’

Article 77 TFEU
(ex Article 62 TEC)

1. The Union shall develop a policy with a view to:

(a) ensuring the absence of any controls on persons, whatever their nationality, when crossing internal borders;

(b) carrying out checks on persons and efficient monitoring of the crossing of external borders;

(c) the gradual introduction of an integrated management system for external borders.

2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures concerning:

(a) the common policy on visas and other short-stay residence permits;

(b) the checks to which persons crossing external borders are subject;

(c) the conditions under which nationals of third countries shall have the freedom to travel within the Union for a short period;

(d) any measure necessary for the gradual establishment of an integrated management system for external borders;

(e) the absence of any controls on persons, whatever their nationality, when crossing internal borders.

3. If action by the Union should prove necessary to facilitate the exercise of the right referred to in Article 20(2)(a) [originally, Article 17(2)(a) TFEU (ToL)], and if the Treaties have not provided the necessary powers, the Council, acting in accordance with a special legislative procedure, may adopt provisions concerning passports, identity cards, residence permits or any other such document. The Council shall act unanimously after consulting the European Parliament.

4. This Article shall not affect the competence of the Member States concerning the geographical demarcation of their borders, in accordance with international law.

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In Article 2, point 65, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) agreed on the wording (as above) of the new Article 62 TFEU (ToL), which became Article 77 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 306/58–59).

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The current Article 62 TEC, to be replaced, is found in the latest consolidated version of the treaties (OJ 29.12.2006 C 321 E/66–67):

Article 62 TEC

The Council, acting in accordance with the procedure referred to in Article 67, shall, within a period of five years after the entry into force of the Treaty of Amsterdam, adopt:

1. measures with a view to ensuring, in compliance with Article 14, the absence of any controls on persons, be they citizens of the Union or nationals of third countries, when crossing internal borders;

2. measures on the crossing of the external borders of the Member States which shall establish:

(a) standards and procedures to be followed by Member States in carrying out checks on persons at such borders;

(b) rules on visas for intended stays of no more than three months, including:

(i) the list of third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement;

(ii) the procedures and conditions for issuing visas by Member States;

(iii) a uniform format for visas;

(iv) rules on a uniform visa;

3. measures setting out the conditions under which nationals of third countries shall have the freedom to travel within the territory of the Member States during a period of no more than three months.

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The European Convention proposed the following Article III-166 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/58):

SECTION 2
Policies on border checks, asylum and immigration

Article III-166 Draft Constitution

1. The Union shall develop a policy with a view to:

(a) ensuring the absence of any controls on persons, whatever their nationality, when crossing internal borders;

(b) carrying out checks on persons and efficient monitoring of the crossing of external borders;

(c) the gradual introduction of an integrated management system for external borders.

2. For this purpose, European laws or framework laws shall establish measures concerning:

(a) the common policy on visas and other short-stay residence permits;

(b) the controls to which persons crossing external borders are subject;

(c) the conditions under which nationals of third countries shall have the freedom to travel within the Union for a short period;

(d) any measure necessary for the gradual establishment of an integrated management system for external borders;

(e) the absence of any controls on persons, whatever their nationality, when crossing internal borders.

3. This Article shall not affect the competence of the Member States concerning the geographical demarcation of their borders, in accordance with international law.

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Article III-265 of the Treaty establishing a Constitution for Europe was almost identical to the draft (OJ 16.12.2004 C 310/114–115).

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Parts of the current Article 62 TEC had become redundant when five years had passed from the May 1999 entry into force of the Treaty of Amsterdam.

In essence, the IGC 2007 took over the text of the draft Treaty and the Constitutional Treaty including the ordinary legislative procedure, with one exception:

The new third paragraph of Article 77 TFEU on the special legislative procedure, requiring unanimity in the Council, with regard to identity cards, residence permits and other documents of the kind is a novelty, since the current Article 18(3) TEC excludes action in this area. This followed from the IGC 2007 Mandate (Council document 11218/07, point 19(d), page 7).

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The House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I, published 13 March 2008) discussed ‘Borders, asylum, immigration and visas’ on pages 133 to 137. The report is accessible at:

http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf




Ralf Grahn


Consolidated EU Treaties:

If you want to read or download the Council’s consolidated Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) as amended by the Lisbon Treaty, the original Treaty of Lisbon, the current TEU and TEC, the Draft Constitution, the Constitutional Treaty, or other consolidated language versions of the Lisbon Treaty TEU and TFEU, you find the needed information and links in the blawg post ‘Consolidated Treaty of Lisbon and other EU materials’ of 21 April 2008:

http://grahnlaw.blogspot.com/2008/04/consolidated-treaty-of-lisbon-and-other.html


In addition, two ‘private’ annotated and consolidated versions including the Treaty of Lisbon amendments can be pointed out.

Peadar ó Broin, of the Institute of International and European Affairs (Dublin), has edited a consolidated and annotated version of the EU treaties as amended by the Treaty of Lisbon. The highlighted IIEA shows the differences between different stages. It is available through the web page of the European Policy Institutes Netword (EPIN):

http://www.epin.org/new/files/AnnotatedTreaties.pdf


Jens-Peter Bonde has issued a ‘Consolidated Reader-Friendly Edition’ of the TEU and the TFEU as amended by the Treaty of Lisbon. There are remarks about changes are in the margin and symbols are used to show amendments. The consolidation is available at:

http://www.j.dk/exp/images/bondes/Consolidated_LISBON_TREATY_3.pdf

The Irish Referendum Commission is gathering speed in its campaign to inform the public ahead of the 12 June 2008 Lisbon Treaty referendum. At this point in time it is possible to find information about the essential treaty changes boiled down to a few pages for the busy reader:

http://www.lisbontreaty2008.ie