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December 1999, Volume 6, Number 12

Tampere Summit

The European Council (the EU Member States' Heads of States and Governments) held a special meeting on 15 and 16 October 1999 in Tampere (Finland) to foster the creation of the area of freedom, security and justice as envisaged by Title IV of the Treaty establishing the European Community. The Council issued a declaration aimed at forging a third common pillar by harmonizing policies on immigration, crime-fighting and judicial affairs, but implementation is expected to take at least five years.

The Presidency Conclusions comprise policy statements related to all aspects of the emerging area of freedom, security and justice and further develop the Action Plan of the Council and the Commission (OJ 1999 C 19/1). The basic premise of the Presidency Conclusions is that there is a link between freedom of movement for citizens of the EU and the need to adopt a common framework for managing migration at the European level.

Freedom of movement: "should not ... be regarded as the exclusive preserve of the Union's own citizens. Its very existence acts as a draw to many others world-wide... It would be in contradiction with Europe's traditions to deny such freedom to those whose circumstances lead them justifiably to seek access to our territory. This in turn requires the Union to develop common policies on asylum and immigration, while taking into account the need for a consistent control of external borders to stop illegal immigration and to combat those who organize it and commit related international crimes." (Point 3)

Asylum. Policy-making shall respect the obligations of the Geneva Refugee Convention and other relevant human rights instruments, thus enabling the European Union "to respond to humanitarian needs on the basis of solidarity" and "to ensure the integration ... of those third country nationals who are lawfully resident in the Union." (Point 4) Improvement of compatibility and convergence between the legal systems of Member States, and common efforts to prevent and fight crime and criminal organizations throughout the EU, shall supplement these policy aims. (Points 5 and 6)

The European Council treats asylum and migration policies as "separate but closely related issues" (Point 10) which require "a comprehensive approach ... addressing political, human rights and development issues in countries and regions of origin and transit." (Point 11) The cornerstone of the prospective Common European Asylum System shall be "the full and inclusive application of the Geneva Convention, thus ensuring that nobody is sent back to persecution, i.e. maintaining the principle of non-refoulement." (Point 13)

The Council called for EU legislation that provides for "a clear and workable determination of the State responsible for the examination of an asylum application, common standards for a fair and efficient asylum procedure, common minimum conditions of reception of asylum seekers, and the approximation of rules on the recognition and content of the refugee status [as wells as convergence on] measures on subsidiary forms of protection offering an appropriate status to any person in need of such protection." (Point 14) Within one year the Commission shall prepare a communication on "a common asylum procedure and a uniform status for those who are granted asylum valid throughout the Union" with a view to eventually taking the necessary action at Community level. (Point 15)

Point 16 asks the Commission to explore the possibilities for "making some form of financial reserve available in situations of mass influx of refugees for temporary protection...the Council ... [should] step up its efforts to reach agreement on the issue of temporary protection for displaced persons on the basis of solidarity between Member States;" an emergency fund of $268 million was proposed. [It was later reported that about $26 million would be set put into a European Refugee Fund for 2000, and that the ERF would be devoted to reception centers, facilitating voluntary returns, and integration.] Point 17 urges the Council to establish the system for the identification of asylum seekers (Eurodac).

Lawful Permanent Residents. The European Council plans to eventually give lawful permanent resident third-country nationals " rights and obligations comparable to those of EU citizens." It urged policies to "[enhance] non-discrimination in economic, social and cultural life and [to develop] measures against racism and xenophobia." (Point 18) The European Union is instructed to build on the Action Plan against Racism in co-operation with the European Monitoring Centre on Racism and Xenophobia and the Council of Europe, and the fight against racism and xenophobia shall be stepped up both at Community level under Article 13 ECT and by way of national programs of Member States. (Point 19)

Point 20 includes an acknowledgement of the need for harmonization of national law regulating the conditions for admission and residence of third-country nationals, taking into account both: (1) the reception capacity of Member States; and (2) their historical and cultural links with the countries of origin. Point 21 deals with the status of long-time lawful resident third-country nationals vis-à-vis nationals of their respective host Member State. Equality of treatment shall comprise "the right to reside, receive education, and work as an employee or self-employed person, as well as the principle of non-discrimination vis-à-vis the citizens of the State of residence." The European Council endorsed the goal of expediting naturalization for third-country nationals who wish to naturalize.

Control. The European Council stressed "the need for more efficient management of migration flows" (Point 22), using information campaigns in the countries of origin and the prevention of all forms of trafficking in human beings. The Council requested that the "common active policy on visas and false documents should be further developed, including closer co-operation between EU consulates in third countries and, where necessary, the establishment of common EU visa issuing offices." In order to combat illegal immigration, Point 23 calls for severe sanctions against trafficking in human beings, focusing specifically on women and children, and against the economic exploitation of migrants, with Europol playing an active role in the fight against smuggling (Points 43, 45 and 48).

The common European effort to prevent illegal immigration is to include closer co-operation and mutual technical assistance between the Member States' border control services (Point 24), the ability to establish effective controls over the EU's future external borders after accession of the Central Eastern European States, Cyprus and Malta (Point 25) and joint efforts to facilitate voluntary returns to countries of origin and transit, to combat trafficking, and to get countries to fulfil readmission obligations. (Point 26) Readmission of nationals shall continue to be included in future international agreements between the European Community and third countries or groups of countries (Point 27), and Justice and Home Affairs ministries are encouraged to be more active EU policy-making (Points 58-62). The Presidency Conclusions also call for a genuine European Area of Justice (Points 28-39) and EU-wide measures against crime (Points 40-58).

The Tampere Summit laid out an ambitious program that focuses on implementing agreements on immigration and asylum reached before the adoption of the Amsterdam Treaty in 1997. Policy on disputed issues--such as burden-sharing in the context of temporary protection—remain phrased in rather vague terms. In other words, government policies on TPS have not changed since the Kosovo war.

The European Council moved far ahead of national governments in certain areas, including the integration of lawful resident third-country nationals in society, not just into the labor force. In this case, the Council may have gone beyond the Amsterdam Treaty, since the call for the integration of third-country nationals cannot be based on Article 63(4) ECT, which outlines "measures defining the rights and conditions under which nationals of third countries who are legally resident in a Member State may reside in other Member States" (emphasis added). Rules for naturalization (i.e. formal integration of third-country nationals) is reserved for national governments, not the EU. It remains to be seen whether the European Community will be able to solve the urgent problems deriving from continuous migration pressure.

Ulf Häußler, Center for International and European Law on Immigration Asylum, University of Konstanz, or //