1

When visa-free travel becomes difficult to achieve and easy to lose: the EU Visa

Free Dialogues after the EU’s experience with the Western Balkans

Florian Trauner (University of Vienna; florian.trauner@univie.ac.at) and Emanuele

Manigrassi (College of Europe; emanuele.manigrassi@coleurope.eu)1

ECPR conference paper; already published in: European Journal for Migration and Law, 16

(2014), 123-143.

ABSTRACT In the wake of the visa liberalisation for Western Balkan states, the sudden

increase of Balkan asylum seekers has become a salient issue in the EU. This article

elaborates on how this issue has made the EU alter its instruments of Visa Free Travel. With

regard to the pre-visa liberalisation phase, the EU now places more emphasis on issues

relating to the fundamental rights and social inclusion of marginalised groups, in particular

Roma. Also, the ongoing Visa Free Dialogues with countries such as Ukraine and Russia

have become more political and include more instances of decision-making where member

states can slow down the process. The most significant modification to the EU’s approach is

probably the fact that the EU has developed a structured post-visa liberalisation phase. With

its post-visa liberalisation monitoring and the visa safeguard clause, the EU has established

new (lower level) instruments to keep track of and push for further reforms post-visa

liberalisation.

KEYWORDS: EU; Visa Policy; Visa Liberalisation; Western Balkans; Eastern Europe;

Policy Instruments; Conditionality;

1 We would like to thank Adam Fagan, Elspeth Guild, Sarah Wolff and the participants of the workshop at

Queens Mary University, 2-3 October 2013, for constructive and useful comments on earlier versions of the

article.

2

1. Introduction

“This is a small step for the EU, but a giant leap for Macedonia.” In a play on Neil

Armstrong’s famous words, the Macedonian Prime Minister Nikola Gruevski welcomed the

EU’s decision of 16 July 2009 to grant visa-free travel to his country, together with Serbia

and Montenegro.2 Albania and Bosnia and Herzegovina had to wait one more year to be

finally provided with visa-free travel into the EU in mid-December 2010. The words of the

Macedonian Prime Minister reflect the relief with which the long-anticipated objective of

visa-free travel was received in the countries concerned. For several years, the visa issue has

been a dominant issue, for many citizens in the region actually the dominant issue of the EU-

Western Balkan relations.

After a brief phase of euphoria when Western Balkan travellers enjoyed their enhanced

mobility rights and EU politicians sang their own praises that they were willing and able to

advance the region’s integration into the EU, things sobered up. Some Western European

states, notably Belgium, Germany, and Sweden, faced substantially increased numbers of

asylum seekers from the Balkan region. In the first year after visa liberalisation, the asylum

applications from Serbian citizens in the EU rose by 76%, and the ones of Macedonian

nationals even seven fold.3 The asylum seekers mainly belonged to these countries’ ethnic

minorities (Roma and ethnic Albanians) and had a very low recognition rate. This increase

of asylum applications was not anticipated in the capitals of EU member states and caused

EU politicians to call for new safeguards and emergency measures.

This article investigates the ways in which the EU’s instrument of Visa Free Dialogues has

been altered in view of the post-visa liberalisation experiences with the Western Balkans.

The modifications of the EU’s approach on how to grant visa-free travel are of relevance for

2 EurActiv (2009) 'Balkan EU visa deal hailed as 'giant step for Macedonia''', 16 July 2009, available at:

www.euractiv.com 3 Frontex (2011). Western Balkan Annual Risk Analysis 2011, Warsaw, at p. 23-30.

3

two groups of countries. The first are the Western Balkan states themselves. Not only is

Kosovo the last existing candidate for visa-free travel in this Southeastern European region,

but the EU has also sought to establish a safeguard measure allowing for a temporary

reintroduction of visa restrictions in emergency situations. Visa-free travel for citizens of the

Western Balkans may therefore be withdrawn. The second group of states are all those third

countries that currently conduct Visa Free Dialogues with the EU including Turkey, Eastern

European Partnership countries and Russia.

The article starts by introducing the leverage that the EU may exert through the incentive of

visa free travel. This is followed by an elaboration of the post-visa liberalisation dynamics

that evolved in the EU-Western Balkans relations. The third section investigates how the

EU’s instrument of visa dialogues has been affected by this experience. The analysis applies

a methodological triangulation, gathering insights not only from official documents and

secondary literature but also from a series of expert interviews with Commission and

Council officials as well as Members of the European Parliament. In total, ten semi-

structured interviews were conducted between February and July 2013 in Brussels.

2. Visa Free Dialogues: a powerful instrument reluctantly used by the EU

Visa Free Dialogues are powerful instruments in terms of making third countries comply

with a range of EU-set conditions in the realm of Justice and Home Affairs (JHA). However,

this migration policy instrument is only reluctantly used by the EU – more precisely, by EU

Ministries of the Interior. These actors perceive themselves as “guardians” of EU internal

security and consider visa requirements as an important element of an effective and

comprehensive border management. For them, the first line of border control starts directly

in third-countries, whereas the second line is the border itself. Visas therefore take an

4

important role in what scholars called “policing at a distance’4. Viewed from the research

perspective of the present volume, certain EU actors hence oppose Visa Free Dialogues due

to the security rationale that underpins EU border and migration control policies at large.5

Whereas EU Ministers of the Interior tend to take a critical stance towards the relaxation of

EU visa requirements, the instrument of Visa Free Dialogues is more favourably viewed by

EU Foreign Ministers.6 This latter group of actors seeks to promote good relations with

neighbouring countries and is aware that a restrictive EU visa policy is an obstacle in the

pursuit of this objective. As Nico Popescu and Andrew Wilson note, “nothing undermines

the EU’s soft power in the neighbourhood more than the restrictive nature of its visa

policies.”7

In legal terms, a third country enters a Visa Free Dialogue with the EU to be removed from

the list of countries whose nationals must be in possession of visas when crossing the

external EU borders. Referred to as “black visa list”, this list is established in Annex 1 of the

Council Regulation (EC) No 539/2001 of 15 March 2001 (Annex 2 lists the countries that

are exempt from that requirement). The regulation is a key legislation of the EU’s visa

policy. It is applicable to all EU member states except the UK and Ireland and the four states

associated to Schengen (Norway, Iceland, Switzerland and Liechtenstein). When it was

adopted in 2001, all Eastern, South-eastern and Southern neighbours of the EU, with the

exception of Israel and Croatia, were put on the black visa list.

The EU’s visa policy became a particularly controversial topic in context of the Eastern (and

Schengen) enlargements, which made countries such as Poland reintroduce visa

4 Bigo, D. and Guild, E. (2005a). Introduction: Policing in the Name of Freedom, in: D. Bigo and E. Guild

(eds.) Controlling Frontiers. Free Movement Into and Within Europe, Aldershot, Ashgate Publishing Limited,

pp 1-14, at p. 1. 5 See the editorial (Trauner and Wolff) of this Special Issue.

6 Trauner, F. (2011) The Europeanisation of the Western Balkans: EU justice and home affairs in Croatia and

Macedonia, Manchester, Manchester University Press, at p. 167. 7 Popescu, N. and Wilson, A. (2009). The limits of enlargement-lite: European and Russian Power in the

troubled neighbourhood, European Council on Foreign Relations, London, at p. 3.

5

requirements for its eastern neighbours Russia, Belarus and Ukraine8. Eventually, the EU

promoted visa facilitation agreements in exchange for the signing of an EU readmission

agreement to mitigate the negative side-effects of the EU’s enlargements. These agreements

were seen to be beneficial to both sides. “They provide the EU with a strong lever to make

third countries sign a readmission agreement and increase the reform efforts in their

domestic justice and home affairs sector, while they also meet major grievances of the

neighbouring countries by easing the tight visa regime and fostering facilitated travel

opportunities for bona fide travellers”.9

2.1. From visa facilitation to visa liberalisation

Facilitated visa-travel regimes with the EU were considered an improvement by the third

countries concerned, yet they usually sought to achieve the complete abolishment of EU visa

requirements. In particular Western Balkans’ governments and civil society organisations

continued to lobby for a quick visa liberalisation scheme with the EU, pinpointing the

negative consequences of creating any kind of “Schengen ghetto” in the EU’s backyard.10

The EU also realised the leverage it could exert through the incentive of visa-free travel in

terms of encouraging reforms in justice and home affairs. According to an interviewee of the

Commission’s DG Home Affairs,

the visa liberalisation process can indeed be considered stronger than enlargement. It has a

powerful political meaning for the benefiting country: if you get free travel to Europe for your

8 See e.g. Grabbe, H. (2002). Stabilising the East While Keeping Out the Easterners: Internal and External

Security Logics in Conflict, in: S. Lavenex and E. M. Ucarer (eds.) Migration and the Externalities of

European Integration, Lanham, MD, Lexington Books, pp 91 - 104; O'Connel, K. (2008). EU Visa Policy:

Squaring the Circle of Neighbourhood and JHA Objectives, in: D. Mahncke and S. Gstöhl (eds.) Europe's Near

Abroad - Promises and Prospects of the EU's Neigbhourhood Policy, Brussels Peter Lang. 9 Trauner, F. and Kruse, I. (2008). EC Visa Facilitation and Readmission Agreements: A New Standard EU

Foreign Policy Tool? European Journal of Migration and Law 10(4): 411-38, at p. 412. 10

See, for instance, the “Schengen White List Project” of the European Stability Initiative (ESI), a think-tank

for Southeast Europe and enlargement, at: http://www.esiweb.org/index.php?lang=en&id=483 (accessed 06

June 2013)

6

citizens, you can win elections. Comparing it with the offer of Stabilisation and Association

Agreements [...] visa free travel has proven to be more efficient.11

What has this process looked like? After the visa facilitation and readmission agreements

entered into force, the EU provided each target Western Balkan country with a roadmap

specifying the exact conditions to be met to achieve visa abolishment. In January 2008,

Serbia was the first country which received a Roadmap, followed by Macedonia, Albania,

Montenegro, and Bosnia and Herzegovina. Lagging strongly behind, Kosovo was the last

one to enter a Visa Liberalisation Dialogue in January 2012. The roadmaps were tailor-made

for each country, covering four broad areas of cooperation: document security (Block 1);

illegal migration and readmission (Block 2); public order and security (Block 3); and

external relations and fundamental rights (Block 4). Their implementation has been

supervised in “Visa Liberalisation-” or “Visa Free Dialogues”. The progress made by each of

the countries in fulfilling the conditions was assessed in a series of special expert missions

involving officials from the Commission and individual member states. The whole process

therefore required substantial adaptation and reforms on the side of the target third country

and intense monitoring on the side of the EU.

2.2.Visa Free Dialogues: the state of play

Following the Western Balkans, the linkage between visa facilitation and readmission

became a standard pattern of cooperation with Eastern Partnership countries (EaP) and

Russia.12

Regardless of the fact that these countries have no membership perspective and are

less closely affiliated with the EU compared to the Western Balkans, they now all strive for

full visa liberalisation. Moldova and Ukraine are the most advanced and have opened Visa

Free Dialogues in 2008 and 2010, respectively. Georgia is next in line, with the Commission

11

Interview with European Commission official, Brussels, 9 April 2013. 12

Hernández i Sagrera, R. (2010). The EU-Russia readmission-visa facilitation nexus: an exportable migration

model for Eastern Europe? European Security 19(4): 569-84.

7

presenting an Action Plan on Visa Liberalisation in February 2013. In terms of content, the

Action Plans for EaP countries are similar to the ones of the Western Balkans and include a

range of benchmarks to be met under four headings: (1) security of documents, including

biometrics; (2) migration including readmission; (3) public security and order; and (4)

external relations and fundamental rights. In terms of methodology, however, a novelty of

the EU’s approach in Eastern Europe is that the Action Plans contain “two tiers of

benchmarks” – first, benchmarks concerning planning and legislative alignment and second,

benchmarks concerning these measures’ implementation13

.

At the summit in December 2011, the EU and Russia jointly agreed on a “List of Common

Steps towards visa free short-term travel of Russian and EU citizens”. This decision was

taken not only due to the persistent lobbying efforts of the Russian government, but also due

to the fact that several EU member states such as Finland, Spain and Italy have increasingly

become interested in Russian tourists and business contacts.14

The List of Common Steps

resembles the Action Plans for the EaP countries, albeit using a different terminology.

Turkey has also negotiated a visa-free regime with the EU since June 2012. In Turkey’s

case, the member states initially sought to negotiate visa facilitation only after a readmission

agreement would be signed.15

For almost a decade, Turkey refused to negotiate under these

conditions and argued, among others, that the Additional Protocol to the Ankara Agreement

and the Customs Union agreement would actually imply rights for Turkish citizens to travel

visa-free into the EU – a claim that gained legitimacy by the important Soysal judgment of

the European Court of Justice on 19 February 2009. A coalition of the European

Commission and the Danish Presidency finally managed to make reluctant member states

13

See e.g. Council of the European Union (2010a). EU-Ukraine Visa Dialogue - Action Plan on Visa

Liberalisation17883/10, 14 December 2010. 14

Popescu, Nicu (2011). On EU-Russia visa free travel (Part 1). In: euobserver.com, 15 September 2011. 15

Bürgin, A. (2013). Salience, path dependency and the coalition between the European Commission and the

Danish Council Presidency: Why the EU opened a visa liberalisation process with Turkey. European

Integration online Papers 17(9), at p. 7.

8

agree on the launch of a visa liberalization process.16

In procedural terms, Turkey first

accepted the readmission agreement with the EU but was given the right to simultaneously

start a Visa Free Dialogue. As the Council highlighted in June 2012, progress towards visa

liberalization is “conditioned on an effective and consistent implementation” of the

readmission agreement and “effective cooperation in JHA matters with all Member States”.17

Table 1: The EU’s visa (and readmission) policy vis-á-vis Eastern Partnership countries,

Russia and Turkey (as of November 2013)

Negotiating mandate

Agreements

signed

Mobility

Partnerships

Start of visa-

free dialogue

Action Plan

on Visa

Liberalisation

Readmission

Agreement

Visa

Facilitation

Agreement

Belarus Feb 2011 Feb 2011

Ukraine Feb 2002 Nov 2005 Jun 2007 Oct 2008 Nov 2010

Moldova Dec 2006 Dec 2006 Oct 2007 May 2008 Jun 2010 Jan 2011

Georgia Nov 2008 Nov 2008 Nov 2010 June 2009 June 2012 Feb 2013

Armenia Dec 2011 Dec 2011 Dec 2012 October 2011

Azerbaijan Dec 2011 Dec 2011 Nov 2013

Russia Sept 2000 July 2004 May 2006 April 2007 Dec 2011

Turkey Nov 2002 Feb 2011 Jun 2012* Jun 2012

Source: European Commission, DG Home Affairs

*Only the readmission agreement was signed.

2.3. The EU’s visa liberalisation policy towards other countries/regions

The instrument of Visa Free Dialogues concerns first and foremost countries in the EU’s

Eastern and Southeastern neighbourhood. Thus far, it has not been employed in the EU’s

16

Bürgin, A. (2013). op.cit. 17

Council of the European Union (2012). Council conclusions on developing cooperation with Turkey in the

areas of Justice and Home Affairs, Luxembourg, 21 June 2012.

9

relations with southern Mediterranean countries. This may change in the wake of the Arab

Spring. In the renewed “Global Approach to Migration and Mobility”, the Commission

proposed to promote people-to-people contacts through a more flexible handling of the EU

visa policy also with southern neighbours.18

Migration and Mobility Dialogues might

become a component of wider cooperation frameworks such as strategic partnerships. The

Commission even envisaged the prospect of full visa liberalization for certain Mediterranean

countries if “conditions for well-managed and secure mobility are in place”.19

The EU signed a visa-waiver agreement without a demanding visa liberalisation process with

countries much further away, including Brazil (in 2010) and small islands such as the

Seychelles (in 2009). Only few pre-conditions were set - usually in the area of document

security. Since November 2012, the Council and the Parliament have also negotiated a

Commission proposal to transfer a whole list of Caribbean and Pacific island nations from

the negative to the positive visa list of Council Regulation No. 539/2001.20

In these cases,

the central argument of the Commission is that “none of those countries is a source of

irregular migration to the EU”.21

3. The EU’s post-visa liberalisation experience in the Western Balkans

In its 2012 Western Balkans Annual Risk Report, Frontex analyzed the impact that the

installation of visa-free regime has had on irregular migration patterns. Frontex maintains

that the process primarily benefited bona fide travellers that saw cost reductions for

travelling to the EU, both in terms of time planning and financially. “It opened up legal

channels to groups that could not travel before and it reduced the local demand for

18

European Commission (2011). The Global Approach to Migration and Mobility, Brussels, COM(2011) 743

final, 18 November 2011. 19

Ibid, at p. 7. 20

European Commission (2012). Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND

OF THE COUNCIL amending Regulation (EC) No 539/2001 listing the third countries whose nationals must

be in possession of visas when crossing the external borders of Member States and those whose nationals are

exempt from that requirement. COM(2012) 650 final, 7 November 2012. 21

Ibid, at p. 5

10

smuggling and facilitation services”.22

Another aspect of the visa liberalisation process not

only stressed by Frontex but also by other proponents of visa-free travel concerns the “strong

positive psychological dimension of the process”23

: the visa restrictions have negatively

affected the EU’s image in the Western Balkans and fostered scepticism that the EU is not

serious in its declarations about the region’s future in Europe. “The risk of falling prey of

nationalism, xenophobia and populism was particularly present in the young generations

which contrary to their parents had lived up in isolation from Europe”.24

These aspects, however, have not been in the centre of media coverage post-visa

liberalisation. The European public debate focused on the issue of the rise of manifestly

unfounded asylum applications in the EU. They have risen sharply after visa-free travel was

introduced for Macedonia, Montenegro and Serbia in 2010.

Table 2: Applications for asylum in EU Member States by Western Balkan nationals

2009

(no visa free

travel)

2010

(visa free travel for

Serbia, Macedonia,

Montenegro)

2011

(all five WB states visa

free)

2012

(all five WB

states visa

free)

Serbia 5.290 17.715 13.980 15.940*

Macedonia 940 7.550 5.545 7.084

Bosnia and

Herzegovina

1.320 2.105 2.595 4.781

Albania 2060 1.905 3.060 4.270

Montenegro 205 405 630 811

Total of the 5 WB

countries

9.860 29.680 25.810 32.886**

All asylum seekers in

EU

266.395 260.835 303.105 335,380

Share of WB citizens 3.7% 11.4% 8.5% 9.8%**

Source: 2009-2011 data: European Stability Initiative25

; 2012 data: Frontex26

and Eurostat asylum statistics

* includes only persons reported as Serbian and not the ones reported as Kosovo

22

Frontex (2012). Western Balkan Annual Risk Analysis 2012, Warsaw, at p. 16. 23

Garaiova, A. and Merja, A. (2012) Kosovo and Visa Free Travel Regime: The increasing EU Member States’

scepticism and regional experiences. Policy Report 05/2012. Group for Legal and Political Studies, November

2012. 24

Ibid. 25

ESI (2013a). Statistical update: asylum seekers from the Western Balkans. Berlin, Brussels, Istanbul,

European Stability Initiative, at p. 4. 26

Frontex (2013). Western Balkan Annual Risk Analysis 2013, Warsaw, at p. 43.

11

** does not include persons from Kosovo

According to the European Commission, the increased flow of unfounded asylum seekers is,

to an important extent, related to a lack of minority integration and politics in Western

Balkans. “The large majority of persons are of Roma origin with extremely poor living

conditions and no prospect of improvement in the near future. Their main reason for leaving

their country of origin is economic, based on false perceptions of financial advantages that

they will acquire by requesting asylum in certain Member States”.27

The asylum seekers

seemed to be informed about the existing asylum systems in Europe. Contradictory to heated

media discussions throughout Europe, asylum seekers from the Western Balkans have not

increased everywhere in the EU – several member states including Austria noticed

decreasing asylum applications from the Western Balkans post visa-liberalisation.28

The differences in asylum procedures and the type of care afforded to asylum seekers have

had an impact on where an application for asylum was submitted. The increase is hence

related to the “pull factors” that countries such as Germany have exerted. According to a

2012 judgement of the German Constitutional Court, the benefits for a family of four

lodging an asylum claim in Germany had to be raised from € 120 to € 420.29

Given that the

average salary in Serbia is around € 360, there is a certain economic rationale for members

of underprivileged groups to come to Germany to lodge an asylum application. Indeed, the

effect was instant. “Since raising the monthly benefit in July, the number of asylum seekers

from Serbia and Macedonia jumped from about 1,000 a month to 4,000 in September”.30

27

European Commission (2011). Commission staff working paper on the post-visa liberalisation monitoring for

the Western Balkan countries in accordance with the Commission Statement of 8 November 2010, Brussels,

SEC(2011) 695 final, 30 May 2011, at p. 17. 28

ESI (2013b). Saving visa-free travel. Visa, Asylum and the EU roadmap policy, Berlin, Brussels, European

Stability Initiative. 29

Stojanovic, D. (2012). Balkan asylum seekers come under suspicion. Associated Press. 9 November 2012. 30

Ibid.

12

4. Changing the EU’s approach towards visa liberalisation

This section elaborates the changes which the post-visa liberalisation experience with the

Western Balkans triggered in the EU’s approach to granting visa-free travel. It draws a

distinction between the EU’s approach on how to achieve visa-free travel (pre-visa

liberalisation) and how to maintain visa-free travel (post-visa liberalisation).

4.1. Pre-visa liberalisation: more or less rights for marginalised groups?

A first dimension of change concerns how much emphasis is placed on fundamental rights

and the social inclusion of marginalised groups. The Visa Free Dialogues – similar to EU

migration policy at large31

– have had a security-driven focus. The EU was primarily

interested in an effective cooperation on readmission and border control as well as in more

document security. While being formally included, issues relating to a social inclusion,

human rights and comprehensive migration management have received less attention.

According to a Commission interviewee, the different “blocks” of the Visa Dialogues were

not equally monitored. The Commission focused on document security and border

management.32

Block 4, dealing with external relations and fundamental rights, was the only

one not covered in the assessment missions. The conditions listed in this block were verified

only on paper and through one-day meetings discussing matters of anti-discrimination.33

No

external examiner ever visited a Roma settlement to see their living conditions. It therefore

comes as no surprise that “at the national level stakeholders involved in the process

considered the block irrelevant for the outcome of the Visa Liberalisation process”.34

This

31

See e.g. Bigo, D. and Guild, E. (eds.) (2005). op. cit.; Geddes, A. (2008) Immigration and European

Integration: Beyond Fortress Europe?, Manchester, Manchester University Press. 32

Interview with European Commission official, 9 April 2013. 33

Kacarska, S. (2012). Europeanisation through mobility: visa liberalisation and citizenship regimes in the

Western Balkans, CITSEE Working Paper Series 2012/21, Edinburgh, at p. 8. 34

Interview with European Commission official, 9 April 2013.

13

process was one-dimensional, establishing a conditionality relationship in particular between

visa-free travel and security.

A reason why the visa liberalisation process was conducted with this security-oriented focus

related to the Commission’s role in the Western Balkans. The Commission’s DG Home

Affairs had the lead in the visa liberalisation process, thereby sidelining DG Enlargement

usually in charge of all enlargement-related aspects in the Western Balkans. According to a

Commission’s official from DG Home Affairs,

it is mainly a matter of credibility towards the member states; DG Enlargement has become

softer when drafting its country reports. This is why at the moment the Council trusts more the

work of DG Home which focuses on security issues. Its main concern is not to promote a wider

Union but rather to ensure the proper implementation and sustainability of the reforms.35

While the Commission’s internal distribution of competences has not changed, the

implementation of non-security related measures has gained importance. The Visa Roadmap

presented for Kosovo contains new benchmarks and requirements in Block 4 entitled

“Fundamental Rights related to the Freedom of Movement”. Kosovar authorities are required

to implement a whole range of measures in relation to “the respect for and protection of

minorities” such as the Kosovo Serbs, Roma, Ashkali, and other minorities.36

Since the

beginning of the Visa Dialogue with Kosovo on 19 January 2012, the Commission has

launched information campaigns with the aim to clarify the rights and obligations deriving

from visa free travel, paid attention on these integration and discrimination policies and

provided financial assistance for measures targeting the most marginalised communities.37

One benchmark of this block 4 maintains that Kosovo should ensure that

the freedom of movement of Kosovo citizens is not subject to unjustified restrictions, including

measures of a discriminatory nature, based on any ground such as sex, race, colour, ethnic or social

35

Same interview. 36

EU Office in Kosovo (2012). Visa liberalisation with Kosovo. Roadmap. European External Action Service. 37

Interview with European Commission official, 9 April 2013.

14

origin, genetic features, language, religion or belief, political or any other opinion, belonging to a

minority, property, birth, disability, age or sexual orientation.38

The detailed wording of this benchmark reflects that the EU is aware of the dilemma

between the (long-term) nature of any policy dealing with the better integration of

marginalised groups and the (short-term) nature of the measures undertaken by other

Western Balkan governments to stop the abuse of asylum systems in EU member states.

Many of the latter measures have included stricter border controls, the

revocation/annihilation of travel documents and other forms of policing measures.39

Macedonia passed a law introducing the possibility to temporary suspend the right to travel

on only the suspicion of being a potential “failed asylum seeker” as well as carrying on

border checks based on ethnic profiling.40

As a matter of fact, these policies have further

marginalised and penalised already marginalised groups, notably Roma. Thomas

Hammarberg, the Council of Europe’s Commissioner of Human Rights, expressed his

concern that these new exit procedures would constitute a violation of the right of the

individual to leave his or her country as enshrined in Protocol 4, Article 2 of the European

Convention on Human Rights. “This right is also protected in the constitutions of states in

the Balkans”, asserted the Commissioner for Human Rights.41

In brief, the first consequence of the post-visa liberalisation experience is somehow

contradictory: although the Commission has stepped up its efforts to improve anti-

discrimination and integration policies of marginalised groups, target third countries have

understood that EU member states are primarily interested in an end of the abuse of

European asylum systems through their citizens. The policies adopted thus far in the Western

38

EU Office in Kosovo (2012). op. cit. at p. 14. 39

See e.g. European Commission (2012). Third Report on the Post-Visa Liberalisation Monitoring for the

Western Balkan Countries in accordance with the Commission Statement of 8 November 2010, Brussels,

COM(2012) 472 final, 28 August 2012. 40

Chachipe (2012) 'Roma pay the price of visa liberalisation, NGO survey says', Luxembourg; Kacarska, S.

(2012). op. cit., at p. 22. 41

Council of Europe (2011). The right to leave one’s country should be applied without discrimination,

Strasbourg, Press release - CommDH037.

15

Balkans have primarily had the effect of curtailing the mobility rights of marginalised groups

and therefore achieved quite the opposite of what the Commission seeks to realise in its

official declarations and ongoing Visa Free Dialogues.

4.2. Pre-visa liberalisation: politics hit in

The EU visa liberalisation process for the Western Balkans has always been political in the

sense that its objective of enhanced mobility has been linked to the EU’s wider stabilisation

and transformation objectives for the region. Still, the EU managed to de-politicise the visa

issue to some extent by emphasising that the visa-free travel would be based on the merits of

each country and bringing technical adaptations and reforms to the forefront. It struggled,

however, to maintain this approach once it started to grant visa liberalisation to three out of

the five countries. Regional interdependencies and political concerns hit in and undermined

the EU’s discourse on individual merits and technical requirements.

When the EU granted the visa waiver to Serbia, Montenegro and Macedonia in December

2009, the non-inclusion of Albania and Bosnia and Herzegovina was met with fierce

criticism. Since ethnic Serbs can hold two passports in Bosnia and Herzegovina, the

preferential treatment of Serbia was seen to put the already fragile stability of Bosnia and

Herzegovina further at risk. Dnevni Avaz, Bosnia’s most important newspaper, wrote that

“the exclusion of Bosnia from the process was the result of EU’s Srebrenica II attitude”.42

The EU was presented as being “anti-Muslim” given that Albania and Bosnia and

Herzegovina have bigger Muslim populations.43

This debate politicised the visa liberalisation process and made it more difficult for the EU to

focus only on the (technical) performance of the two countries. The European Parliament,

traditionally a strong advocate for visa free travel in the Balkans, issued its positive opinion

42

Interview with an Official, European Commission, Brussels, 4 April 2013. 43

Knaus, G. (2009). Is the EU Visa Proposal anti-Muslim?, European Stability Initiative. Sarajevo.

16

on Albania and Bosnia and Herzegovina already in October 2010, putting further pressure on

the Council and the Commission to come up with a decision. The JHA Council finally

adopted the visa waiver in November 2010 “despite the reluctance of certain Member States

due to the rapid increase of asylum applications in some Member States after the granting of

visa liberalization to some Western Balkan states”.44

In a way, the member states were

“rhetorically entrapped”45

and had only the option of maintaining visa requirements at the

risk of losing credibility and reputation. The Commission’s proposal for a post-monitoring

mechanism and a suspension clause (see next section) alleviated these concerns and provided

a face-saving solution for all actors involved.

The case of the Western Balkans therefore demonstrates that a gradual installation of a

regional visa-free zone creates all kinds of regional implications and a politicisation of the

process. This is an important lesson to keep in mind for the EU’s approach in Eastern Europe

– a region with similar pitfalls. When the EU signed a visa facilitation agreement with

Russia in May 2006, Georgia maintained that this would have negative effect on the

territorial reintegration of the breakaway provinces of Georgia, as it provides Georgian

citizens living in South-Ossetia and Abkhazia with an extra incentive to apply for a Russian

passport. After the August 2008 armed conflict between Russian and the separatist

governments of South-Ossetia and Abkhazia, on the one hand, and Georgia, on the other, the

EU quickly sought to remedy this shortcoming and provided the Commission with a

negotiating mandate for a visa facilitation and readmission agreement with Georgia (in

November 2008). Should the EU move forward with a visa-liberalization for only few

Eastern European countries, it can be expected that challenges similar to the Western

Balkans in terms of regional interdependencies will come up again.

44

COM(2011) 290 final (op. cit.), at p 3. 45

Schimmelfennig, F. (2001). The Community Trap: Liberal Norms, Rhetorical Action, and the Eastern

Enlargement of the European Union. International Organization 55(1): 47-80.

17

The Visa Free Dialogues with Eastern Partnership countries and Russia have been politically

sensitive from the very start. The concept of granting full visa liberalization for these Eastern

neighbors has remained contested in some member states, notably Germany, Austria and the

Netherlands. The EU therefore applies a very cautious wording and avoids strong rhetorical

commitments.46

The introduction of a two-stage approach towards visa liberalization (see

previous section) has provided the skeptical member states with another instance of decision-

making where they can slow down the visa liberalization process. The procedural set-up of

the Visa Free Dialogues that requires more discussions in and approvals of the Council has

contributed to making the Visa Free Dialogues “political”.47

According to the Commission

interviewee, the member states and the European External Action Service (EEAS) generally

have a “bigger say” in Eastern Europe, whereas the Commission has been considered to “run

the show” in the Western Balkans under EU enlargement policy.48

Due to this set-up and the

member states’ dissatisfaction with the Western Balkans post-visa liberalization experience,

the EU currently tends to focus more on political considerations than on the actual

(technical) adaptation performance of the target third country. Member states indicated to the

Commission that they will not accept a visa liberalisation for any third country if the

negotiations on a safeguard mechanism (see next section) are not concluded.49

This

announcement did not only refer to the Eastern European countries, Turkey and Kosovo, but

also to the ongoing negotiations on visa-free travel with Caribbean and Pacific island

nations.50

4.3. Post-Visa Liberalisation: the monitoring regime

46

See e.g. Council of the European Union (2009). Joint Declaration of the Prague Eastern Partnership Summit.

8435/09, 7 May 2009. 47

Interview with European Commission official, 10. July 2013, Brussels. 48

Ibid. 49

Interview with European Commission official, 10 August 2013. 50

Ibid, also interview with MEP Tanja Falon, 10 August 2013.

18

Bulgaria and Romania were the first two countries removed from the “black visa list” in

April 2001 and January 2002, respectively. Whereas Bulgaria’s visa-free regime was

installed smoothly, the effect of Romania’s inclusion onto the EU’s positive visa list

“appears to have been a mass illegal migration for work within the Schengen zone, allegedly

reaching over a million temporary migrants per year”.51

Yet, even if some member states

considered the experience with Romania as problematic, the EU’s visa policy at that time did

not include any instruments to react to unexpected developments post-visa liberalisation. For

Bulgaria and Romania, the “visa issue” lost salience as soon as their citizens enjoyed the

enhanced mobility rights. This has changed in the wake of the post-visa liberalisation

experience with the Western Balkans. The EU has created new instruments which allow for

keeping track of and pushing for further policy reforms post-visa liberalisation. The first of

these is a monitoring regime.

In November 2010, EU Home Affairs Commissioner Cecilia Malström presented a new

follow-up mechanism to prevent an abuse of the visa liberalisation process to the JHA

Council.52

The “post-visa liberalisation monitoring mechanism” foresees the continued

monitoring of reforms which countries subject to Visa Free Dialogues were expected to

carry out. Most importantly, the mechanism introduces “emergency consultation

arrangements" with which the EU should become capable of quickly reacting to perceived

difficulties and crises situations. If deemed necessary, the Commission might propose the

suspension of the visa free travel for a third country benefiting from a free visa regime (ibid).

The new safeguard system, albeit introduced for Bosnia and Herzegovina and Albania,

became applicable for Serbia, Montenegro and Macedonia as well, which already benefited

from visa-free travel at that time.

51

Baldwin-Edwards, M. (2006). Visa Policies in South Eastern Europe. A Hindrance or a Stepping Stone to

European Integration?, EWI Policy Brief, November 2006, Brussels, New York and Moscow, at p. 1. 52

Council of the European Union (2010). Visa liberalisation for Albania and Bosnia and Herzegovina,

Brussels, 15957/10, Press Release, 8 November 2010.

19

In practice, the post-visa liberalisation monitoring has taken place trough a “Steering

Committee” chaired by the Commission and involving representatives of Frontex, Europol,

the current and incoming Council Presidency, as well as the Secretariat of the Police

Cooperation Convention for South-East Europe. The monitoring of these countries should

not only ensure that the countries continue to meet their obligations of the visa liberalisation

dialogue but also act as an “alert and prevention mechanism” against abuses of the visa-free

regime.53

In addition to the Commission establishing regular evaluation reports, Frontex

developed a particular “tailored risk analysis” on the situation in the Western Balkans and

put together an operational Task Force involving also police officers of the Balkan source

countries. If deemed necessary, the Steering Committee could also decide on ad-hoc expert

visits on the ground. Many ad-hoc visits have also been carried out at bilateral level, when

EU member states mostly concerned by increasing numbers of asylum seekers discuss in the

relevant Western Balkan countries specific measures to tackle it.54

The three Commission reports adopted until June 2013 comprehensively monitor on a

country-by-country basis “the continued implementation of benchmarks undertaken during

the visa liberalisation dialogues” as well as the measures undertaken “against the abuse of

visa liberalisation by citizens from the Western Balkan countries”.55

They hence have a

double purpose: to allow the Commission to continue to assess the implementation of

measures taken during the Visa Dialogues and to monitor the developments of the

phenomenon of the abuse of the Visa Liberalisation system. These latter measures include

awareness raising campaigns, enhanced controls at border crossings, and operative controls

53

European Commission (2011). Commission staff working paper on the post-visa liberalisation monitoring for

the Western Balkan countries in accordance with the Commission Statement of 8 November 2010, Brussels,

SEC(2011) 695 final, 30 May 2011. 54

COM(2012) 472 final (op. cit.), at p. 3. 55

COM(2012) 472 final (op. cit.).

20

on tourist agencies accused by the authorities of “misinforming” the populations about the

alleged asylum benefits in the EU.56

In brief, the EU’s objective of the post-visa monitoring regime has been to understand the

unexpected side-effects – in the EU’s terminology, the “abuse” - of the visa liberalisation

process and to convince reluctant member states to agree on the extension of the visa free

regime to Albania and Bosnia. From the very start, this regime was to be complemented with

a safeguard system that should allow for a “rapid suspension of Visa Liberalisation” in case

of an emergency situation.57

4.4. Post-visa liberalisation: the safeguard clause

In the wake of the visa liberalisation for the Western Balkans, the member states exerted

substantial pressure on the Commission. According to a Council official, member states

eagerly wanted a suspension mechanism “to maintain the credibility of the system” and “to

avoid future abuses” of visa-free travel.58

In May 2011, the Commission presented its proposal on how to amend Council Regulation

(EC) Nr. 539/2001.59

It suggested not only the creation of a safeguard clause for suspending

temporarily the visa waiver but also some other modifications to the EU visa list legislation,

the most important of which concerned the rules governing “visa reciprocity”. The

reciprocity mechanism should assure a common response in case a third country included in

the EU’s white visa list decides to re-impose visas on EU citizens. This happened in 2009

when Canada re-imposed visas for citizens of the Czech Republic (a full member of the

Schengen cooperation) due to an increasing number of asylum seekers with Czech

citizenship, mainly of Roma origin. Despite the Czech government “call[ing] for EU

56

SEC(2011) 695 final (op. cit.), at p. 9. 57

COM(2011)290 final (op. cit.), at p. 3. 58

Interview with European Council official, 8 April, 2013. 59

COM(2011)290 final (op. cit.).

21

solidarity”60

, the Commission did not manage to convince Canada to reverse its decision.

The amendment to the reciprocity mechanism was therefore designed to allow the

Commission a fast-track procedure to re-impose a visa requirement in such a situation.61

Regarding the safeguard clause, the Commission underlined that it “should be applied only

as a temporary measure in clearly defined emergency situations”.62

The clause can be

prolonged once; however, if the Commission does not see any progress after six months, its

evaluation might be accompanied by a legislative proposal to return the third country

concerned onto the EU’s black visa list.63

According to the Commission’s proposal, the

mechanism will be triggered in case of

a) a sudden increase of at least 50% over a six month period in the number of nationals of a third

country listed in Annex II found to be illegally staying in the Member State's territory, in

comparison with the previous six month period;

(b) a sudden increase of at least 50% over a six month period in comparison with the previous six

month period, in the number of asylum applications from the nationals of a third country listed in

Annex II for which the recognition rate of asylum applications was less than 3% over that previous

six month period;

(c) a sudden increase of at least 50% over a six month period in the number of rejected

readmission applications submitted by a Member State to a third country listed in Annex II for its

own nationals, in comparison with the previous six month period.64

The trialogue negotiations were difficult for three reasons. First, the European Parliament

linked the safeguard clause with the reciprocity mechanism. The Parliament’s reasoning was

that only a strong safeguard regime and a strong reciprocity mechanism ensures the

coherence and consistency of the Union’s external relations. The EU should not strengthen

its conditionality approach towards the Western Balkans (and, in the future, other third

60

Kubosova, L. (2009) 'Czechs want EU response after Canada imposes visas', euobserver.com. 15 July 2009. 61

Peers, S. (2012). Amending the EU's visa list legislation, Statewatch analysis, London. 62

COM(2011)290 final (op. cit.), at p. 4. 63

Interview with European Commission official, 11 August 2013.

64

COM(2011)290 final. (op. cit.), at p. 16..

22

countries) through the creation of the safeguard mechanism, unless it is not able or willing to

also exercise strong pressure on third countries that refrain from applying reciprocity in the

visa domain. The EP wanted to give the Commission a strong tool at its disposal to act in a

conflict such as the aforementioned one between Canada and the Czech Republic.65

Yet

member states were reluctant towards a mechanism that might imply an automatic

imposition of a visa requirement on US or Canadian citizens. “It would be a political bomb

which would have a deep impact on the international and trade relations of each Member

State”.66

Second, the European Parliament placed more emphasis on the political consequences of the

safeguard clause compared to the JHA Council.67

Traditionally a proponent of visa

liberalisation for the Western Balkans, the Parliament wanted to give Western Balkans more

time to react to the post-visa liberalisation context. According to an official of DG Home

Affairs, the 2012 data of asylum seekers from the Western Balkans were at a level that

would actually allow certain member states to call for the safeguard mechanism.68

The

European Parliament, in line with some member states, also wanted to introduce more

flexibility in terms of how the mechanism is triggered. The safeguard clause should not only

be triggered automatically once the 50% percentages are reached but only after the

Commission’s in-depth and “case-by-case” assessment. The Commission should also be able

to evaluate the data and statistics provided by Frontex, the European Asylum Support Office

or Europol and look at the “the overall impact that the increased migration would have for

the European Union”69

.

A final point of contestation concerned the EP’s claim to be involved in the comitology

procedure once the safeguard clause is to be activated. The EP sought to activate the

65

Ibid. 66

Interview with an Official, European Commission, Brussels, 27 February 2013. 67

European Parliament (2013). ReportA7-0139/2013, 19 April 2013. 68

Ibid. 69

Ibid.

23

suspension clause with “delegated acts” and not – as the Commission proposed – with

implementing decisions.70

With delegated acts, the Parliament could block any decision on

the re-imposition of the visa requirement towards a third state.

In late June 2013, the trialogue negotiations had a breakthrough. The flexibility asked for by

the Parliament and certain member states was introduced so that the Commission now has “a

lot of margin of manoeuvre” to decide whether or not to propose the activation of the

safeguard clause.71

The EP, however, gave up with regard to its procedural claim. Delegated

acts will be used only for the reciprocity mechanism while the safeguard clause will be

activated through implementing acts. This compromise, which was put forward by Agustín

Díaz de Mera, the responsible EP rapporteur from the conservative EPP group, was

controversial. According to MEP Tanja Fajon, the shadow rapporteur from the Socialist

group, “it is a bad compromise. [...] The EP will be out of the picture when it comes to the

suspension mechanism. This is worrying”.72

However, the very existence of this compromise

implies that certain member states will stop to opposing visa liberalisation at a general level.

The EU’s negotiations on visa free travel are now likely to resume in a more serious manner.

5. Conclusions

The article has analysed the development of the instrument of Visa Free Dialogues that has

gained importance in the EU’s external relations. The EU is currently using it with

neighbouring countries in the East and Southeast, including Russia, Eastern Partnership

countries and Turkey.

This article has shown that the very set-up of this instrument has undergone profound

changes due to the EU’s post-visa liberalisation experience in the Western Balkans. The

70

Ibid. 71

Interview with European Commission official, 11. July 2013 72

Authors’ interview with MEP Fajon, 8. July 2013.

24

EU’s approach has been changed in two dimensions, firstly, in how to negotiate visa-free

travel with a third country (pre-visa liberalisation) and, secondly, in how to maintain visa

free travel (post-visa liberalisation). With regard to the negotiation phase, the Commission

now puts more emphasis on issues relating to the fundamental rights and social inclusion of

marginalised groups, in particular Roma. However, the example of the Western Balkans

demonstrates that the situation of Roma risks getting worse in the context of an EU visa

liberalisation process. Local governments have curtailed the mobility rights of marginalised

groups and introduced border checks based on ethnic profiling. These (short-term) measures

undertaken to prevent any abuse of the asylum systems of EU member states may seriously

undermine the (long-term) nature of any policy seeking to improve the situation of

marginalised groups. A second change with regard to the pre-visa liberalisation negotiations

is that that the ongoing Visa Free Dialogues have become more political and include more

instances of decision-making in which member states are able to slow down the process. The

probably most significant change stemming from the EU’s experience in the Western

Balkans relates to the very fact that the EU has now a structured “post-visa liberalisation”

phase. With its “post-visa liberalisation monitoring” and the visa “safeguard clause”, the EU

has established new (lower level) instruments to keep track of and push for further reforms

post-visa liberalisation. Whereas the monitoring regime was installed smoothly, the inter-

institutional negotiations on the safeguard mechanisms have proven difficult. The EP and the

Council disagreed particularly on procedural issues, concretely on the level of involvement

of the EP in the activation of the clause. A compromise was only found after two years of

negotiations in June 2013.

Overall, the changes will transform the EU’s instrument of Visa Free Dialogues as initially

set up. The promise of visa-free travel is now complemented by the threat of temporarily

reinstalling visa requirements. In other words, the incentive of visa-free travel has turned

25

into a moving target not only used by the EU as a source of external influence pre-visa

liberalisation but also post-visa liberalisation.