Sources of Law, Regulatory Processes and Enforcement Mechanisms in EU Migration Policy: The Slow Decline of National Sovereignty
| Date | 01 September 2013 |
| Published date | 01 September 2013 |
| DOI | 10.1177/1023263X1302000306 |
| Author | Anja Wiesbrock |
| Subject Matter | Article |
20 MJ 3 (2013) 423
SOURCES OF LAW, REGULATORY PROCESSES
AND ENFORCEMENT MECHANISMS
IN EU MIGRATION POLICY: THE SLOW
DECLINE OF NATIONAL SOVEREIGNTY
A W*
ABSTRAC T
As a relatively new area of EU law, the governance and enforcem ent of EU migration policies
continues to dier in many respec ts from other EU policy areas. e quasi- absence of rights
of third country nationals unde r EU primary law as well a s the previously intergover nmental
nature of the area of migration policies have led to a cr ucial importance of general pr inciples
of law, in particular the principle of e ectiveness. Governance processes a re characterized
by a favouring of non-binding so law mechanisms, the exible application of common
policy decisions and by eorts to ‘externalize’ migration management and control
functions. Finally, challenges in the application of the preliminary ruling procedure have
accentuated the importanc e of Commission infringement proceedings and the princ iple of
eectiveness for the ee ctive enforcement of EU migration law.
Keywords: EU migration law; externalization of migration control; exible integration;
principle of eectiveness; th ird country nationals
§1. INTRODUCTION
In comparison with ot her policy areas discus sed in this special i ssue, such as competition
and environmental law, migration is a relat ively new EU policy area. It was only in 1999
with the Treaty of Amsterda m that the Member States agreed to put in place a common
immigration polic y and to transfer competences on the entr y and residence of third
country nationals (TCNs) to the Union. Previously, common European initiatives on
* University of Oslo.
Anja Wiesbrock
424 20 MJ 3 (2013)
migration and asylu m policies were conned to intergovernmental cooperation, placing
only margina l limitations on state discretion.1 Even aer the incorporat ion of the policy
eld of asylum and immig ration into the EU legal framework with the 1992 Maas tricht
Treaty, decisions under the third, intergovernmental pi llar on ‘Justice and Home Aairs’
continued to be taken una nimously by the Council, with litt le or no parliamentar y and
judicial control, and no direc t eect of EU legal provisions in national law.2
It was only with the Treaty of Amsterda m that matters on visas, immigration and
asylum were incorporated into Title IV of t he EC Treaty, creating an ‘area of freedom,
security and justice’. e Community became responsible for the development of a
common EU immigration polic y and acquired the competence to dra legislation wit h
regard to the position of third country nationals.3 Nonetheless , for several years, Title
IV EC continued to feature a number of par ticularities , leaving greater discretion to
the Member States than t he remaining Community pilla r. e style of decision-making
remained for some time part ly intergovernmental, with the Council ta king decisions in
unanimit y and the Member States having the possibility to initiate legi slation during a
transitional period and thereaer mainta ining the right to submit requests for policy
initiatives to the Com mission.4 In addition, some aspects of Title IV were excluded from
the preliminar y ruling jur isdiction5 of the Cour t of Justice, which in any case cou ld
only be sought by national court s of last instance. e Lisbon Treaty nally put an end
to the so-cal led pillar structure, bringing a lmost all policy a reas of Justice and Home
Aairs under t he supranational method of decision-making. With the exception of a
few areas, such as police cooperation, the ordinary legislative procedure became the
general decision-making procedu re in migration policies. Moreover, the Court of Justice
received full jur isdiction in respect of migrat ion policies and all national cour ts acquired
the right to submit questions for a prelimi nary ruling.
Over the last 14 years, the EU ins titutions have adopted a vast body of secondary law
in the area of migrat ion policy. Along with measures on visas and a sylum, which will not
be discussed i n this article, the EU has adopted direc tives on the entry and residence of
certain categorie s of third country nationa ls, measures to combat illega l immigration,
as well as measures reg ulating the return and expulsion of non-EU nationals. e EU
migration law instr uments are characterized by the signi cant discretion that has be en
granted to the Member States. is is not surprising considering the intergovernmental
legacy of the area of migrat ion law and the fact that the great majorit y of existing lega l
1 Prominent example s of such intergovernmenta l cooperation were t he 1985 Schengen Agreement,
which included co operation on matters of vis a policy, and the 1990 Dubli n Convention on the process
of asylum applica tions.
2 Several non-bind ing acts were adopte d under the thi rd pillar, such as re solutions on fami ly reunicat ion
and long-term residence .
3 Ex Article63 E C.
4 Ex Article67(2) EC.
5 Excluded were measu res related to the maintena nce of law and order and the safeg uarding of interna l
security (ex Ar ticle68(2) EC).
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