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European Scientific Journal

European Scientific Journal


2011/March European Scientific Institute
with support from ,,Egalite Society for gender equality and antidiscrimination

Reviewed by the ,,European Scientific Institute editorial board

2011, March,vol. 10 The contents of this journal do not necessarily reflect the opinion or position of the European Scientific Institute. Neither the European Scientific Institute nor any person acting on its behalf is responsible for the use which may be made of the information in this publication.

European Scientific Journal

Contents

European Common Foreign and Security Policy .................................................................................... 3


Jos Noronha Rodrigues

The international expansion of Russian enterprises. Looking at Italian targets ..................... 27


Francesca Spigarelli

Social and cultural dimension of the transformation of the higher education in Albania ................ 54
Kseanela Sotirofski Mit`hat Mema Ulpian Hoti

The European Constitution and the Space of Freedom, Security and Justice .................... 65
Jos Noronha Rodrigues

Contribution in the company (According to the Macedonian Company Law).......................... 98


Jovan Shopovski

The Changes of population in Gjirokastra region ............................................................................... 105


Albina Sinani

The role of the Albanian Diaspora (in the U.S.) on the Declaration of Independence of Albania ................................................................................................................................................................... 127
Rudina Mita

Educational and cultural traditions in Elbasan during the nineteenth century 1912 ....... 136
Sokol Gjevori

European Scientific Journal


UDC No. 327.36(4-672EU)

European Common Foreign and Security Policy Jos Noronha Rodrigues M.A (**)

(*)

Assistant Professor of Law at the University of the Azores, Portugal

1. - Abstract. - 2. Introduction. - 3. Background of the Common Foreign and Security Policy (CFSP). 4. The Second Pillar of the Maastricht Treaty. - 5. The development of the CFSP from Amsterdam to Nice. - 6. The CFSP in the EU Constitutional Treaty. - 7. Conclusion Abstract: The twenty first century will be remembered in the history of mankind as the century of change, constant danger, clash of civilisations, collective insecurity, mistrust towards the other, injustices caused by the Iraq war and by the terrorist attacks of September 11 th 2001, in the United States, March 11th 2004, in Spain, and July 7th 2005, in London, respectively. We should not, however, neglect all the other terrorist attacks to the most elementary human rights perpetrated every day around the world. Indeed, the insecurity epidemic proliferates around the globe. Therefore, it is urgent for the European Union (EU) to adopt and implement a reinforced Common Foreign and Security Policy (CFSP). Keywords: CFSP, Maastricht, Amsterdam, Nice, European Constitution Introduction: The twenty-first century will be remembered in the history of mankind as the century of change, constant danger, clash of civilisations, collective insecurity, mistrust towards the other, injustice, Iraq war and mainly as the century of the tragic terrorist attacks of September 11 th 2001, in the United States, March 11th 2004, in Spain, and July 7th 2005, in London. However, we should also not forget the most elementary human rights violations perpetrated every day around the world. We should not continue to neglect these matters and to persist in the constant incrimination

This paper was presented at the University of Santiago de Compostela (Spain)-Doctoral Programme in "Public Law and Integration Processes: The European Union and Mercosur"-course on "Common Security and Foreign Policy-European Defence and Security Policy", taught by Professor Dr. Rafael Garcia Prez and Julio Jorge Urbina, of the University of Santiago de Compostela (Spain). (**) Director of the Centre of Juridical-Economical Studies of the University of the Azores, Coordinator of the discipline of Law at the Department of Economics and Management of the University of the Azores, Doctoral student of Law at the University of Santiago de Compostela (Spain), M.A in International Relations, DEA in Law of the European Union and Assistant Professor of Law at the University of the Azores,
(*)

European Scientific Journal

of the other. We have an obligation to analyse that which lies before us and formulate conjectures about what is wrong in the relationship between the western and eastern worlds and between the north and the south. Indeed, we have a duty to understand that the other is us. The world has changed. If we grasp this fact, we ought to understand also that a Common Foreign and Security Policy (CFSP) is a necessity and that, therefore, it is imperative for the European Union to stop being a political pigmy and begin speaking with one voice in the world in bilateral, regional and international forums. The process of European integration was initiated in 1951 with the signing of the Treaty of Paris, which brought into place the European Coal and Steel Community (ECSC). In addition to the economic concerns that were central to its establishment, security considerations also played a decisive role: Considering that world peace may be safeguarded only by creative efforts equal to the dangers which menace it; Convinced that the contribution which an organized and vital Europe can bring to civilization is indispensable to the maintenance of peaceful relations;(...) Desirous of assisting through the expansion of their basic production in raising the standard of living and in furthering the works of peace; Resolved to substitute for historic rivalries a fusion of their essential interests; to establish, by creating an economic community, the foundation of a broad and independent community among peoples long divided by bloody conflicts; and to lay the bases of institutions capable of giving direction to their future common destiny; (...) 1 The purpose of this paper is to trace the historical evolution of the Common Foreign and Security Policy (CFSP) in the process of European integration (from the Hague Summit to the Treaty of Nice) as well as underlining the merits and faults of the of EU Constitutional Treaty (2004) with regard to such matters. We know from the outset that this Constitutional Treaty will probably never come into place, at least in its present form, given that France (29 th May of 2006) and the Netherlands (1st June of 2006) have refused to ratify it. Background of the CFSP The European Communities2, in their first decade of existence, prioritised economic integration and, as a consequence, relegated political integration to a secondary role. In reality, external political co-operation (EPC)3 begins timidly in the 1970s, in great part due to the efforts of

See Preamble of the Treaty of Paris, in Tratado de la Unin Europea, Tratados constitutivos de las Comunidades Europeas y otros actos bsicos de Derecho Comunitrio, Madrid, ed. Tecnos, sptima edicin, 1999, p. 261. 2 There were three European Communities: E.C.S.C (Treaty of Paris-1951); E.A.E.C (Treaty of Rome-1957) and E.E.C (Treaty of Rome-1957) 3 FERNANDES, Lus Lobo: A Cooperao Poltica Europeia, course text on the discipline of European Security, Defence and Political Cooperation, VI edition of the Masters programme in European Studies, University of Minho, Braga, 2000.
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French President George Pompidou. Indeed, foreign policy, common security and defence were born from several European summits: A) in 1969, at the Hague European Summit 4, President George Pompidou proposed the creation of an institutional platform for foreign policy co-operation. He outlined a programme of European construction for the future, in which the political goals of the founding members of the Community were to be re-addressed (...) in accordance with the renowned triadic formula completing, deepening and enlarging. After the Hague European Summit, Europe had, once again, a political objective, in spite of continuing to pursue economic integration.(...) [Europe] can stand only if it aims at a political union (...) [whose] immediate objective is the economical but whose final objective is (and must be) a political goal (...)5; B) One year later, at the Luxembourg European Summit6, the Belgian tienne Davignon, inspired by the ideas of George Pompidou, outlined, in the so-called Davignon Report, the embryonic institutional mechanisms of a not merely informal European intergovernmental co-operation. Hence, he proposed (a) at least once every six months, a meeting of Ministers of Foreign Affairs that could be substituted by a Conference of Heads of State or Government; (b) at least four times a year, a political Committee comprising heads of the political departments of the Ministries of Foreign Affairs to prepare the groundwork for ministerial decisions; (c) a Committee of High Representatives to study the diverse questions that would arise; (d) [and attributes to the] President of the Council of Ministers [the task of reporting] once a year to the European Parliament on the state of Political Co-operation7; C) At the Paris European Summit8 of 1972, the term European Union is invoked for the first time as a political objective and the procedures for foreign policy consultation are reinforced in accordance with the schema previously proposed by Davignon. In this manner, the Paris European Summit institutionalises four annual meetings of European Ministers of Foreign Affairs, thus replacing the previous two annual gatherings; D) in the following year9, the Copenhagen European Summit10 aimed at a Europe speaking with one voice in world affairs.
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As a consequence, meetings and/or consultations with the Heads of State are

This Summit took place on the 1 st and 2nd of December of 1969. For an elaboration of this point, see http://maltez.info/cosmopolis/anode1969/eurobalanca.htm See Bulletin EU, 1970-11, p.9-15. This Summit took place in October of 1970.

5 6

BUSTAMANTE, Rogelio Prez, COLSA, Juan Manuel Uruburu: Histria da Unio Europeia, Coimbra, Coimbra Editora, 2004, p. 106. This summit took place on the 19 th and 20th of October of 1972.

BUSTAMANTE, op. cit. p. 106: "(on) the 23rd of July of 1973 a second "Davignon Report" was drafted that also addressed the subject of foreign policy cooperation and the formulation of a common policy: "each state shall commit itself to not fixing definitely its own position without having consulted the remaining members on political cooperation." 10 See Bulletin EU, 1973-9, p. 13-21. This summit took place on the 14 th and 15th of December of 1973. 11 For a more profound elaboration on this topic, vide http://maltez.info/cosmopolis/anode1973/eurobalanca.htm
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intensified, emergency gatherings are set in place, guidelines for the implementation of a concerted foreign policy are reiterated and the institutional mechanisms for a common European policy are established12; E) At the Paris European Summit13 of 1974, the Heads of State and Government established the European Council14 and stipulated that there should be three annual meetings to promote political cooperation, despite the fact that such an institution was not enshrined in any of the Treaties of the European Community, and created the Marjolin-Tindemans Reflection Group to address matters of political union. This Summit was, without a doubt, the precursor of the European Councils, the first of which took place in Dublin on the 10th and 11th of March of 1975; F) In the year of 1975, following the Councils of Dublin, Brussels and Rome 15, the Belgian Prime Minister Leon Tindemans16 presented the so-called Tindemans Report on the European Union. In this report, he defended the reinforcement of the institutions of the European Community and recommended that a common foreign policy be developed, one in which there is an obligation to adopt common decisions and, therefore, abandon the principle of voluntary decision that underlies political co-operation17; G) In 1976, the Hague European Council18, after analysing and approving the general guidelines of the Tindemans Report, issued a statement: The European Union will be built progressively by consolidating and expanding the Communitys achievements. The existing treaties could serve as the basis for new policies[]Co-operation in the domain of foreign policy should necessarily lead to the adoption of a Common Foreign

MACHADO, Tiago Pedro Fernandes Fonseca, Onde est a PESC? working-paper n s/n-2004, Faculty of Law, Universidade Nova de Lisboa, p.5: "(...) It is in the Copenhagen Report that the true foundational charter of European Political Cooperation (EPC) is articulated in its triple dimension. In the first place, it supposed the express linkage of EPC with the objective of the European Union. In second place, the Report clarified the nature of the relations between EPC and and the EU in a paradoxical manner, since it addressed the existing differences between both. Finally, the Report succeeded in deepening those aspects related to the institutional and procedural organisation of EPC through the increase of the frequency of "Ministerial Meetings" and of the Political Committee, the Institutionalisation of the EUCOR (European Correspondents) group and of the workgroups, and by addressing the specific functions of the Presidency, which had become one of the major concerns in the ambit of EPC."
12 13

This Summit took place on the 9 th and 10th of December of 1974.

BUSTAMANTE, op. cit., p.110 "(...) At the Summit of Paris of the 10th of December of 1974, the most important protagonist of the reforms, President Giscard D'Estaing, closed the meeting with the following statement: "the Summit is dead, long live the European Council."
14

Ibid., p.112 "(...) fundamentally, it has been decided that the EEC shall be represented by a single delegation at the Paris Conference on International Economic Cooperation -North-South dialogue."
15

For a more profound elaboration of this point see http://maltez.info/cosmopolis/anode1975/total.htm "(the) European Union implies that we present ourselves as a united front in the world. Our actions should be common in all of the essential domains of our external relations, whether it be foreign policy, security, economic relations or cooperation."
16 17

MORENO, Fernando Dez.: Manual de Derecho de la Unin Europea, Madrid, 3 Ed. Thomson, Civitas, 2005, p. 831. This European Council took place on the 29th and 30th of November of 1976.

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Policy19; H) At the London European Council20 of 1981, the Ministers of Foreign Affairs of Germany and Italy, Hans Dietrich Genscher and Emilio Colombo respectively, proposed the European Act, a series of procedures and mutual consultations in such areas as political cooperation, culture, fundamental rights, harmonisation of the legislation not yet enshrined in the Treaties of the European Communities, the fight against terrorism, violence and criminality 21, as well as flexible and pragmatic endeavours towards the objective of political co-operation and security; I) At the Stuttgart European Council22 of 1983, Heads of State and Governments, inspired by the proposal of 1981 submitted by the German and Italian Foreign Affairs Ministers, adopted the Solemn Declaration of Stuttgart on the European Union. 23 This declaration24 (...) introduced the prediction that States would co-ordinate their positions on matters of political and economical aspects of security and (...) at the institutional level, it introduced the explicit configuration of the European Council as an essential institution with its own functions in the ambit of European Political Co-operation (EPC)25; J) The Single European Act of 198626, in addition to undertaking the first revision of the Treaties of the European Community (Paris/Rome) 27, also institutionalised the European Councils, conferring them with oversight and control powers over
19 20

BUSTAMANTE, op. cit., p. 114. See Bulletin EU, Supplement 3/1981, p.14-18 For a more profound elaboration of this subject, see http://www.europarl.europa.eu/factsheets/1_1_2_pt.htm This European Council took place on the 17th and 19th of June of 1983.

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22

BUSTAMANTE, op. cit., p 126. "(in) the Preamble, he manifests his interest in proceeding with the European project: to continue with this undertaking on the basis of the Treaties of Paris and Rome; to extend the purview of European activities: the advances that have been made in the fields of economic integration and political cooperation as well as the need for new developments (...); to promote democracy, intensify its cohesion, deepen its polices, grant priority to social progress and to employment and to speak with one voice in foreign policy, to construct a European Union." 24 Ibid., "(the Stuttgart Solemn Declaration on the European Union had the following objectives: a) to reinforce and proceed with the development of the Communities, the nucleus of the European Union; b) to develop European political cooperation in the domain of foreign policy and the political and economic aspects of security; c) to promote closer cooperation in cultural affairs as well as initiating concerted actions to deal with the international problems of public order, violence, criminality and delinquency; d) to modify the Institutions, emphasising the role of the Commission in favour of a delegation of competencies and reinforcing the attributes of the European Council, indicating its functions and relations with Parliament, to which an essential role is attributed (...)." 25 MACHADO, op. cit., p.5. 26 SOARES, Antnio Goucha: A Unio Europeia, Coimbra, ed. Almedina, 2006, p. 21-22: "(the) Single European Act constitutes the first general reform of the Treaties undertaken since the establishment of the three Communities. It is designated as a "single act" because, in the same normative act, the Member-States proceeded with the revision of the three Treaties of the different European Communities and agreed, also, to institutionalise the so-called European Political Cooperation. European Political Cooperation between the Member-States was a practice developed with the adoption of the Davignon Report, in 1970, by the Ministers for Foreign Affairs. It consisted in the establishment of a process of regular consultation and information between the Member-States on the great questions of international politics so as to promote the coordination of positions. The practice of Political Cooperation between the Member-States was intensified throughout the decade and, at the Summit of Copenhagen of 1973, it was decided that this would be the framework for the formulation of the principles of foreign policy that should be applied to third-party states and thus express the position of Europe on the most important themes of world politics. However, Political Cooperation remained outside of the Community-system. With the institutionalisation of European Political Cooperation by the Single European Act, the Member-States affirmed their intention not to confine the integration process to the economic sphere and to extend it to the domain of foreign policy." It was approved on the 17th of February of 1986 and was adopted in July of 1987. Published in OFL 169 of 29.06.1987. 27 See article 1 of the SEA: "the European Communities and European Political Cooperation are guided by the objective to jointly contribute to the concrete progress of the European Union."
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the Communities28, Moved by the will to continue the work undertaken on the basis of the Treaties establishing the European Communities and to transform relations as a whole among their States into a European Union, in accordance with the Solemn Declaration of Stuttgart of the 19 June of 1983; Resolved to implement this European Union on the basis, firstly, of the Communities operating in accordance with their own rules and, secondly, of European Cooperation among the Signatory States in the sphere of Foreign Policy and to invest this Union with the necessary means of action."29 The European Political Cooperation envisaged in the Single European Act aims at promoting the joint progression of the European Union (Article 1, SEA) and is founded on the procedures adopted and outlined in the Reports of Luxembourg (1970), Copenhagen (1973), London (1981), the Solemn Declaration on the European Union (1983), and the practices gradually established among the Member States.30 The Political Cooperation is regulated by Title III (Treaty Provisions on European Cooperation in the Sphere of Foreign Policy), article 3031: "although the obligations of States in matters of foreign policy preserved their voluntary nature, the Member-states - The High Contracting Parties - (...) agreed to inform and consult each other in foreign policy matters before making final decisions. However, such matters as security and defence became a sort of "taboo" in European integration, given the failures of previous endeavours (European Defence Community and Fouchet Plan) but

See Tratado de Roma y Acta nica Europea, Madrid, ed. Tecnos, 1988, p. 171, article 2 of the SEA: "(the) European Council shall be composed by the Heads of State of the Member-States as well as by the President of the Commission of the European Communities. They will be assisted by the Ministers of Foreign Affairs and by a member of the Commission. The European Council shall meet at least twice per year." 29 Ibid., see Preamble, p.169.
28 30

Ibid., p.171, see paragraph 4 of article 1 of SEA.

Ibid., p.178-181, see, "(article) 30 - European Cooperation in the sphere of foreign policy shall be governed by the following provisions: 1- The High Contracting Parties, being members of the European Communities, shall endeavour jointly to formulate and implement a European foreign policy; 2- a) The High Contracting Parties undertake to inform and consult each other on any foreign policy matters of general interest so as to ensure that their combined influence is exercised as effiectively as possible through the coordination, the convergence of their positions and the implementation of joint action. b) Consultation shall take place before the High Contracting Parties decide on their final positions; c) In adopting its positions and its national measures each High Contracting Party shall take full account of the positions of other partners and shall givedue consideration to the desirability of adopting and implementing common European positions. In order to increase their capacity for joint action in the foreign policy field, the High Contracting Parties shall ensure that common principles and objectives are gradually developed and defined. The determination of common positions shall constitute a point of reference for the policies of the High Contracting Parties. D) The High Contracting Parties shall endeavour to avoid any action or position which impairs their effectiveness as a cohesive force in international relations or within international organisations. 3-(a) The Ministers for Foreign Affairs and a member of the Commission shall meet at least four times a year within the framework of European Political Co-operation. They may also discuss foreign policy matters within the framework of Political Cooperation on the occasion of meetings of the Council of the European Communities; b)The Commission shall be fully associated with the proceedings of Political Co-operation; c) In order to ensure the swift adoption of common positions and the implementation of joint action, the High Contracting Parties shall, as far as possible, refrain from impeding the formation of a consensus and the joint action which this could produce; 4) The High Contracting Parties shall ensure that the European Parliament is closely associated with European Political Co-operation. To that end, the Presidency shall regularly inform the European Parliament of the foreign policy issues which are being examined within the framework of Political Co-operation and shall ensure that the views of the European Parliament are duly taken into consideration; 5) The external policies of the European Community and the policies agreed in European Political Co-operation must be consistent (...)"
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mainly because of the refusal of national governments in abdicating of, or even sharing, powers that are quintessential attributes of sovereignty."32 The Second Pillar of the Treaty of Maastricht On the 7th of February of 1992, the second reform of the Treaty of Rome is undertaken with the signing of the Treaty of Maastricht and/or of the European Union 33 "(...) Resolved to mark a new stage in the process of European integration undertaken with the establishment of the European Communities; (...) Resolved to establish a citizenship common to nationals of their countries; Resolved to implement a common foreign and security policy including the eventual framing of a common defence policy, which might in time lead to a common defence, thereby reinforcing the European identity and its independence in order to promote peace, security and progress in Europe and in the world; Reaffirming their objective to facilitate the free movement of persons, while ensuring the safety and security of their peoples, by including provisions on justice and home affairs in this Treaty; Resolved to continue the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as closely as possible to the citizen in accordance with the principle of subsidiarity; (...) Have decided to establish a European Union (...).34 This is a revolutionary treaty35, with a sui generis structure and a "common architrave"36 Art. A to F of the TEU; a Pillar of the Community (art.1 to 240 ECT); and two intergovernmental

CAMISO, Isabel, FERNANDES, Lus Lobo.: Construir a Europa O processo de integrao entre a teoria e a histria, Cascais, 1ed. Principia, 2005, p. 91. 33 SOARES, p. 29: () (The) Treaty on European Union adopted a normative structure that rests on three pillars (...) [this structure] constitutes a clear demarcation of the national governments regarding supra-national developments that arise from the process of European integration. The States demonstrated that they accepted the goal of deepening dialogue and cooperation in the domains of foreign policy, justice and internal affairs. However, the States did not want that decisions in the sphere of "high politics" could be taken in accordance with the decisionmaking processes of the Community and they did not accept that measures adopted in the new policy domains could emanate from the juridical system of the European Community, thus establishing two parallel normative pillars. Foreign policy, justice and internal affairs were henceforth integrated in the ambit of the Union, yet, the functioning of the new pillars was not subjected to the so-called communitarian method, given that Member-States preferred to keep decision-making in these domains within the inter-governmental sphere. " This Treaty was adopted on the 1st of November of 1993. Published in OJ C 191 of 29.07.1992.
32

ENTERRA, Eduardo Garcia de, TIZZANO, Antonio, GARCA, Ricardo Alonso.: Codigo de la Union Europea, Madrid, editorial Civitas, 1996, p. 21.
34

CAMISO, op. cit., p. 96: "[The Treaty of Maastricht] contributed to advancing in the direction of a neo-federal model, not only because of what it enshrined, but, above all, for the possibilities that it opened: the conclusion of the process of economic integration opened the door to the process of political integration; the establishment of CFSP made possible the creation of an identity for the Union; the pillar of Justice and Internal Affairs created a real Freedom, Security and Justice Space; the new European citizenship created a Union that is closer to the citizen; the adoption of the principle of subsidiarity introduced a de-centralised governing and, lastly, the process of co-decision enshrined a more productive participation of the European Parliament." 36 See article B, 2nd paragraph of TEU: "The Union shall set itself the following objectives: to assert its identity on the international scene, in particular through the implementation of a common foreign and security policy including the eventual framing of a common defence policy, which might in time lead to a common defence.
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pillars that reveal the lack of courage37 of member-states to transfer powers to the European Union that are culturally and intrinsically linked to state sovereignty, for instance, see Title V "Treaty Provisions on European Cooperation in the Sphere of Common Foreign and Security Policy
38

(art. J to J-11 of the TEU); and Title IV Treaty Provisions on European Cooperation in

the Sphere of Justice and Internal Affairs" (art. K to K.9 of the TEU). This paper only considers Title V, which concerns Common Foreign and Security Policy (CFSP). This policy is the continuation of (a timid progress of) the provisions of article 30 of Title III of the SEA, which addresses the Provisions on European Co-operation in the Sphere of Foreign Policy". Not only in the SEA but also in the Treaty on European Union the CFSP, as the corresponding Title attests, is understood to be a matter to be co-operatively regulated by the member-states and is, therefore, not subject to the customary community procedures, thus remaining outside the judicial purview of the European Court of Justice - Title VII, art. L" 39 The number 2 of article J-1 of the TEU delineates the CFSP objectives. This measure concerns a) the preservation of common values, fundamental interests and the independence of the Union; B) the reinforcement of the security of the Union and that of its Member-States in all its forms; c) the preservation of peace and the reinforcement of international security, in accordance with the principles outlined in the Charter of the United Nations, the Helsinki Final Act and with the objectives set out in the Paris Charter; d) to foment international cooperation; e) the development and reinforcement of democracy, the Rule of Law and the safeguarding of human rights and fundamental freedoms. In order to achieve these objectives in an intergovernmental context, the Treaty on European Union established the following juridical mechanisms: a) Systematic cooperation between Member-States in the management of their common foreign and security policy. 40 In essence, the Treaty of Maastricht adopted, as a juridical mechanism, a practice that was proposed with the Single European Act (paragraph a, n 2, article 3 of the SEA), which consisted of the agreement, undertaken by the High Contracting Parties, that they should inform and consult with each other

CAMISO, op. cit., p. 92-93: [the] agreement reached by the Member-States regarding this matter was enshrined in the second pillar of the Treaty of Maastricht. By joining in one single policy two dimensions previously separated (foreign policy and security), European leaders took a very important step toward political union. However, the inclusion of a third dimension of vital importance to the survival of the European project was postponed sine die: defence. Although the Treaty considers the definition of a common defence policy as a sort of corollary to the CFSP, there were no recommendations concerning a deadline for its implementation." 38 Ibid., p.92: "[the] negotiations for the establishment of a CFSP by the TEU had the following precise objectives: (...) - Europe was striving to provide itself with a mechanism suitable to promote the security of the continent in a period of profound uncertainty (...); - the CFSP would also contribute to the emergence of a scenario of political and economic stability throughout the European continent (...); the aims of the new common policy, the consolidation of the market democracies and economies emerging in the countries of Western and Eastern Europe so that, one day, it would be possible to realise the dream of a united Europe at the continental level." 39 BUSTAMANTE , op. cit., p. 178. 40 See article J.1, n 3, Paragraph 1 of the TEU.
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on any matter of foreign policy that is of common interest

41

so as to ensure that their combined

influence could be exercised more effectively through concerted action, the convergence of positions and the undertaking of common actions; b) Common positions in the policy domains mentioned in the n2 of article J-1 of the Treaty on European Union. This juridical instrument "corresponds to what was already practised in the ambit of European Political Co-operation (EPC). It is, in truth, a higher form of the already established systematic cooperation, through which states inform and consult each other at the Council on matters that are deemed of general interest. The objective is the adoption of converging positions, which may not be necessarily common, but that nonetheless enable them to reinforce their capacity to influence international politics (whenever the Council deems necessary a higher level of cohesion, it will define a common position); (...) [ c) Common Action42 in domains in which the Member-States have important interests in common.43 This juridical mechanism coordinates the Member-States when making and implementing policy decisions. In effect, when the Council adopts a common position 44, it sets out its scope, its objectives and the means of its implementation whilst control is exercised by the Presidency which, according to article J.5 - 2 "shall be responsible for the implementation of common measures"; d) Lastly, there is another element of significant importance which, although it is not a juridical mechanism, it is nonetheless the necessary lever for the implementation of CFSP]: the representation of the Union by the Presidency. Indeed, the Treaty of Maastricht, by conferring upon the Presidency of the Council of Ministers the responsibility to implement common policies, converts it into the representative of all Member-States. The Presidency represents them in the matters of CFSP at international organisations and conferences." 45 With regard to the CFSP institutions46, it should be emphasised that the CFSP, notwithstanding its intergovernmental nature, is a Pillar of the Community and that its institutional
41

See n4 of article J.1 and art. J. 2 of the TEU

See paragraph 2 of n 1 of article J.3: Whenever the Council decides on the principle of joint action, it shall lay down the specific scope, the Union's general and specific objectives in carrying out such action, if necessary its duration, and the means, procedures and conditions for its implementation."
42

See article J.1, n 3, paragraph 2 of the TEU. MICHEL, Denis y RENOU, Dominique: Cdigo Comentado de la Unin Europea, Barcelona, editorial de VECCHI, 2001, p. 263: "Common Action - this term refers to a co-ordinated action undertaken by the Member-States with the objective of setting in motion resources of any type (human resources, experiences, financing, goods, etc.) to attain the concrete objectives of the Council. Common action results from a common posture." 45 45 CAMISO, op. cit., p. 94. 46 Ibid., p.95 "(...) the CFSP still remains, to a large extent, in the hands of the States, as the marginal role, in this domain, attributed to the Commission and to the European Parliament proves. In spite of its obvious inter-governmental character, the CFSP was, nonetheless, a noticeable step forward insofar as it institutionalises more ambitious exigencies for the integration of the policies of Member-States in this matter. As a result, notwithstanding the aforementioned limitations, the coherence and efficacy of the Union in this sphere increased. We are convinced that the Community will be able to affirm its influence as an important actor in international relations only by speaking with one voice, therefore opposing the unipolar logic arose with the end of the Cold War.
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configuration is the same as that of the European Union. Hence, its institutions are: a) The Council, which is the driving force of the CFSP (art.J-8 of the TEU), while its Presidency represents the Union in this domain (n 1, art. J-5 of the TEU); b) The Commission, which can partake in the CFSP decision-making process, present proposals and request extraordinary meetings of the Council when prompt decisions need to be made jointly with the Member-States (n 3 and 4 of art. J-8 and art. J-9 of the TEU); c) The Political Committee, which is an institution specifically created to ensure the implementation of the CFSP; it consists of Political Directors [who] shall monitor the international situation in the areas covered by common foreign and security policy and contribute to the definition of policies by delivering opinions to the Council at the request of the Council or on its own initiative. It shall also monitor the implementation of agreed policies, without prejudice to the responsibility of the Presidency and the Commission."47; d) lastly, the Parliament, which is consulted by the Presidency regarding the fundamental aspects and options of the CFSP, is regularly informed about the evolution of this policy and may even direct questions and/or put forth recommendations to the Council (art. J.7 of the TEU). With regard to the decision-making process48, the voting rule applied at the Council is that of unanimity, except on procedural questions and on common policy practical measures, in which a decision can be reached through a majority vote (paragraph 2 of N 2, art. J.8 and n 2 of art. J.3). Developments in the CFSP from Amsterdam to Nice On the 2nd of October of 1997, a third revision of the Treaty of Rome is undertaken, with the signing of the Treaty of Amsterdam.49 "(...) Determined to initiate a new phase in the European integration process, which was initiated with the establishment of the European Communities; Wishing to reinforce the democratic character and the efficacy of the Institutions so as to enable them to better perform, in a unique institutional framework, the tasks that are entrusted to them;
47

See n 5, article J-8 of the TEU.

Unlike what happens in the remaining common policies, the CFSP rests on a double network of decision-making: in the first place, the Council of Ministers is called upon to decide unanimously on the possibility of the inclusion of a certain domain in the CFSP. If unanimity is reached, a decision can then be made if a qualified majority is reached at the Council. This second phase of the decision-making process should address only the question of how to put into practice the policies that are necessary to fulfil the objectives that were put forth and to transpose them to the CFSP framework that had been proposed in the first instance.
48

SOARES, op. cit., p. 36-38: "[unlike] the previous alterations to the Treaties of the European Communities - Single European Act and Treaty of Maastricht - that followed from the political aim of the Member-States in introducing new specific objectives in the European integration process, the internal market and the single currency, respectively, the Treaty of Amsterdam did not result from the original political aim of giving a new impetus to European construction (...) The European political situation that preceded the opening of the conference that elaborated the Treaty of Amsterdam dictated the emergence of two aspects that dominated the negotiations: an institutional reform to prepare the European Union for the challenges resulting from enlargement to the East; and the difficult and fragile relationship between European integration and the citizens of the Member-States." This Treaty was adopted on the 1st of May of 1999. Published in OJC 340 of 10.11.1997
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Resolved to institute a common citizenship for the peoples of their countries; Resolved to implement a common foreign and security policy including the progressive framing of a common defence policy, which might lead to a common defence in accordance with the provisions of Article J.7, thereby reinforcing the European identity and its independence in order to promote peace, security and progress in Europe and in the world; Resolved to facilitate the free movement of persons, while ensuring the safety and security of their peoples, by establishing an area of freedom, security and justice, in accordance with the provisions of this Treaty; Determined to continue the process of the creation of an ever close union between the peoples of Europe, one in which decisions are taken close to citizens, in accordance with the principle of subsidiarity; It has been decided to establish a European Union (...)50. This Treaty has, in a manner of speaking, resolved some of the "leftovers" bequeathed by Maastricht related to the affirmation of the European Union in the international sphere as well as those that concern a Common Foreign and Security Policy. In this manner, the "Provisions relating to the Common Foreign and Security Policy" continue to be regulated by Title V, numerically ordered (article 11 to 28 of the TEU), unlike before (Title V, art. J to J-11 of the TEU). In this context, some substantial alterations were introduced51, such as: a) if we compare N 1 of art. J-1 of the TEU, which states [the] Union and its Member-States shall formulate and implement the Common Foreign and Security Policy (...), with the new provision n 1 of art.11 as established by the Treaty of Amsterdam "[the] Union shall formulate and implement a Common Foreign and Security Policy", we will notice that the CFSP will henceforth be under the exclusive purview of the Union, and that the Member-States should actively support each other in a spirit of loyalty and mutual solidarity (n 2 of art.11 of the TEU); b) the CFSP's objectives remain essentially identical to what was stipulated in n 2 of art. J-1 of the TEU. However, some significant nuances were introduced, such as: 1) instead of "safeguarding the common values, the fundamental interests and the independence of the Union, just as established - the first paragraph of n2 of art. 1 of the TEU - the Treaty of Amsterdam introduces some new elements, such as paragraph n 1 of art.11 of the TEU, "safeguarding the common fundamental values and interests, the independence and integrity of the Union, in accordance with the principles of the United
See, Tratado de Amesterdo, Lisboa, ed. Assembleia da Repblica, 1998 and Tratado de Amesterdo y versiones consolidadas de los Tratados de la Unin Europea y de la Comunidad Europea, Biblioteca de Legislacin srie Menor, Madrid, primera edicion, editorial Civitas, 1998. 51 VITORINO, Antnio.: () Did Amsterdam bring something new? It made the decision-making process more flexible by introducing the possibility of positive abstention, an institutional innovation, the results of which are yet to be thoroughly evaluated, the creation of a so-called Mr. CFSP, that is, of a persona that centralises the visibility of the Common Foreign and Security Policy and which is, simultaneously, the Secretary General of the Council of the European Union and, in third place, and this seems to be the most important aspect, it added to foreign policy a structured component of Security and Defence. In http://ec.europa.eu/archives/commission_1999_2004/votorino/speeches/230701_pt.pdf.
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Nations Charter; 2) instead of "the reinforcement of the security of the Union and its MemberStates, in all its forms, just as established in paragraph two, n2, art. J-1 of the TEU, the Amsterdam Treaty contemplates only "the reinforcement of the security of the Union, in all its forms paragraph 2 of n 1 art. 11 of the TEU. The Union is thus regarded as an ensemble and not as an entity at the margin of Member-States that are now comprised by the Union itself; 3) the third paragraph of n 1 of art.11 of the TEU did not bring about a substantial alteration if we bear in mind the third paragraph of n 2, art. J-1 of the TEU, which states that "the maintenance of peace and the reinforcement of international security should be pursued in accordance with the principles of the United Nations Charter (...) including those principles that concern the delineation of frontiers." Only those policies that concern the delineation of frontiers were integrated into the CFSP policy orientations; c) these add new juridical mechanisms 52 to the CFSP, whilst preserving preceding arrangements. We thus have: I) Joint actions Joint actions shall address specific situations where operational action by the Union is deemed to be required. They shall lay down their objectives, scope, the means to be made available to the Union, if necessary their duration, and the conditions for their implementation."53 II) Common positions Common positions shall define the approach of the Union to a particular matter of a geographical or thematic nature. Member States shall ensure that their national policies conform to the common positions.54 and; III) Common strategies: this is the new juridical mechanism that was introduced by the Amsterdam Treaty and which applies when "The European Council shall decide on common strategies to be implemented by the Union in areas where the Member States have important interests in common; Common strategies shall set out their objectives, duration and the means to be made available by the Union and the Member States.55 The Amsterdam Treaty introduced, in a similar manner, new provisions to the voting rules of the Council. Despite the fact that Council decisions continue to be made in accordance with the unanimity rule, the Amsterdam Treaty introduced a new exception clause based on the principle of "constructive abstention": (...) any member of the Council may qualify its abstention by making a formal declaration under the present subparagraph. In that case, it shall not be obliged to apply the decision, but shall accept that the decision commits the Union. In a spirit of mutual solidarity, the Member State concerned shall refrain from any action likely to conflict with or impede Union
See article 12 of the TEU: "(the) Union shall proceed with the objectives enunciated in article 11: (a) to define the principles and general orientations of Common foreign and security policy;(b) deciding on common strategies; (c) adopting common action; (d) adopting common positions; (d) reinforcing the systematic cooperation among Member-States in the formulation of policies."
52 53

See n 1 of article 14 of TEU. See. art. 15 of the TEU. See . n 2 of article 13 of the TEU.

54 55

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action based on that decision and the other Member States shall respect its position." 56 On the other hand, the Amsterdam Treaty also contemplates the possibility that the Council deliberate by qualified majority voting "when adopting joint actions, common positions or taking any other decision on the basis of a common strategy; [and/or] when adopting any decision implementing a joint action or a common position."57, except when a member of the Council manifests its opposition to the decision for important reasons that have to do with its national policy. In such cases, voting will not be undertaken and the matter under evaluation may be submitted to the European Council; d) with the adoption of the Amsterdam Treaty, the establishment of the role of "Mr. CFSP and/or High Representative for Common Foreign and Security Policy" was, unquestionably, the measure proposed by the Amsterdam Treaty that was most noticed by the European public. "(The) Presidency shall represent the Union in matters pertaining to Common Foreign and Security Policy [being, therefore] responsible for the implementation of the decisions that have been made [as well as] expressing in principle the position of the Union at international organisations and conferences [and, in such endeavours, assisted by] the Secretary-General of the Council, which shall exercise the duties of High Representative 58 for the Common and Foreign Security Policy."59 The Secretary shall assist the Council in matters coming within the scope of the common foreign and security policy, in particular through contributing to the formulation, preparation and implementation of policy decisions, and, when appropriate and acting on behalf of the Council at the request of the Presidency, through conducting political dialogue with third parties."
60

; e) the possibility of the Union undertaking, when necessary, CFSP agreements with

third party states or international organisations is one of the innovations introduced by the Amsterdam Treaty. (...) the Council, acting unanimously, may authorise the Presidency, assisted by the Commission as appropriate, to open negotiations to that effect. Such agreements shall be concluded by the Council acting unanimously on a recommendation from the Presidency. No agreement shall be binding on a Member State whose representative in the Council states that it has to comply with the requirements of its own constitutional procedure; the other members of the Council may agree that the agreement shall apply provisionally to them." 61

56 57

See n 1 of article 23 of the TEU. See n 1 and 2 of article. 23 of the TEU.

On the 18th of October of 1999, the first High Representative of the Union for Foreign Affairs and Security, Mr. Javier Solana Madariaga, takes office. 59 See n 1 and 3 of article 18 of the TEU.
58 60 61

See article 26 of the TEU. See article 24 of the TEU.

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On the 26th of February of 2001, a fourth revision of the Treaty of Rome62 is undertaken with the signing of the Treaty of Nice63 (...) Desiring to complete the process started by the Treaty of Amsterdam of preparing the institutions of the European Union to function in an enlarged Union; Determined on this basis to press ahead with the accession negotiations in order to bring them to a successful conclusion, in accordance with the procedure laid down in the Treaty on European Union, Have resolved to amend the Treaty on European Union, the Treaties establishing the European Communities and certain related acts (...).
64

In practice, the Treaty of Nice did not

significantly alter provisos relating to the CFSP. However, it introduced three substantial alterations in what concerns: 1) International Agreements in the domain of the CFSP. Hence, instead of the rule of unanimity demanded by article 24 of the TEU, which concerns the signing of international agreements: When it is necessary to conclude an agreement with one or more States or international organisations (...) the Council, acting unanimously, may authorise the Presidency, assisted by the Commission as appropriate, to open negotiations to that effect. Such agreements shall be concluded by the Council acting unanimously on a recommendation from the Presidency (...)." The Treaty of Nice, more specifically paragraphs n 2 and n 3 of art.24 of the TEU, made it possible that, in certain circumstances, agreements be undertaken and adopted through qualified majority. The Council shall act unanimously when the agreement covers an issue for which unanimity is required for the adoption of internal decisions; When the agreement is envisaged in order to implement a joint action or common position, the Council shall act by a qualified majority in accordance with Article 23(2); 2) The Political Committee, as stated in article 25 of the TEU. This committee will henceforth be known as Political and Security Committee and, in essence, it retains the same functions65. However, within the scope of this title, this Committee shall exercise, under the responsibility of the Council, political control and strategic direction of crisis management operations. The Council may authorise the Committee, for the purpose and for the duration of a crisis management operation, as determined by the Council, to take the relevant decisions concerning the political control and strategic direction of the operation (...)";

This Treaty was adopted on the 1st of February of 2003. Published on OJC 80 of 10.03.2001 SOARES, op. cit., p. 43-44: [the] intergovernmental conference that led to the adoption of the Treaty of Nice had, in comparative terms, the most limited political agenda. In truth, the objective of this intergovernmental conference was to deal with matters that the Member-States had not been capable of resolving at the time of the conclusion of the Treaty of Amsterdam, but which they deemed pertinent to the forthcoming negotiations concerning the institutional reforms that had to be implemented prior to the enlargement of the EU, the so-called "Amsterdam leftovers" (...) [in practice, Nice prepared the European Union, at the institutional level, for future enlargements]. 64 See Tratado de Nice Reviso dos Tratados Europeus Apresentao Comparada, Lisboa, ed. Assembleia da Repblica, 2001, and also http://www.fd.uc.pt/CI/CEE/pm/Tratados/Nice/tratadonice-f.htm. 65 See article 25 of the TEU: "Without prejudice to Article 207 of the Treaty establishing the European Community, a Political and Security Committee shall monitor the international situation in the areas covered by the common foreign and security policy and contribute to the definition of policies by delivering opinions to the Council at the request of the Council or on its own initiative. It shall also monitor the implementation of agreed policies, without prejudice to the responsibility of the Presidency and the Commission.
62 63

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3) Reinforced Cooperation shall henceforth be included in the CFSP's scope and (...) shall be aimed at safeguarding the values and serving the interests of the Union as a whole by asserting its identity as a coherent force on the international scene. It shall respect: the principles, objectives, general guidelines and consistency of the common foreign and security policy and the decisions taken within the framework of that policy; the powers of the European Community, and the consistency between all the Union's policies and its external activities." 66 However, this capacity for reinforced cooperation can only be applied in the implementation of a common policy or position and never upon questions that have military or defence implications.67 The CFSP in the Constitutional Treaty On the 20th of June of 2003, at the European Council of Salonika,68 the Treaty Project that instituted a Constitution for Europe was presented. On the 29 th of October of 2004, it is signed, in Rome, the Treaty that establishes a Constitution for Europe.69 It should be emphasised that this treaty is neither a revision of the Treaty of Rome nor a revision of any other treaty. It is an autonomous Treaty conceived ad inicio to be applied in Europe with an unlimited validity (art.IV-

66

See article 27-A and 27 of the TEU.

MARTINS, Ana Maria Guerra. Curso de Direito Constitucional da Unio Europeia, Coimbra, ed. Almedina, 2004, p.177 () [the] main innovations concerning the CFSP are not mentioned in the Treaty of Nice since they were undertaken at its margins. In truth, the European Council of Nice approved the establishment of operational structures for crisis-management the Political and Security Committee, the Military Committee and the European Union Military Committee, which, in practice, function since the year 2000. 68 See Preface of the Treaty Project that institutes a Constitution for Europe, published by the Publications Office of the European Communities, 2003: [having] realised that the European Union found itself at a crucial juncture of its existence, the European Council met in Laeken (Belgium) on the 14th and 15th of December of 2001 convoked the Convention on the Future of Europe [for the second time in the History of Europe, Europeans are called upon to deliberate on their future. The first time this happened, as noted earlier, was at the Congress of Hague, in 1947]. This Convention was entrusted the responsibility of formulating proposals on three subject-matters: to approximate citizens to the European project and institutions; to structure political life and transform the European political space into an enlarged Union; to transform the Union into a stabilising factor and reference point in the new world order () The Declaration of Laeken raised the question of knowing whether the simplification and re-structuring of the Treaties should not open the way for the adoption of a constitutional text. The Proceedings of the Convention led to the elaboration of a project Treaty that institutes a Constitution for Europe that was consensually accepted in the plenary session of the 13th of June of 2003. (This was the text that was presented at the European Council of Salonika) 69 See Preamble of the Treaty that establishes a Constitution for Europe, Luxembourg, Published by the Publications Office of the European Communities, 2005, p.10: Drawing inspiration from the cultural, religious and humanist inheritance of Europe, from which have developed the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law, Believing that Europe, reunited after bitter experiences, intends to continue along the path of civilisation, progress and prosperity, for the good of all its inhabitants, including the weakest and most deprived; that it wishes to remain a continent open to culture, learning and social progress; and that it wishes to deepen the democratic and transparent nature of its public life, and to strive for peace, justice and solidarity throughout the world, Convinced that, while remaining proud of their own national identities and history, the peoples of Europe are determined to transcend their former divisions and, united ever more closely, to forge a common destiny; Convinced that, thus United in diversity, Europe offers them the best chance of pursuing, with due regard for the rights of each individual and in awareness of their responsibilities towards future generations and the Earth, the great venture which makes of it a special area of human hope; Determined to continue the work accomplished within the framework of the Treaties establishing the European Communities and the Treaty on European Union, by ensuring the continuity of the Community acquis; Grateful to the members of the European Convention for having prepared the draft of this Constitution on behalf of the citizens and States of Europe (...).
67

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446 of the CT). However, it has not yet come into place 70, due to the fact that the period of ratification, by the member states71, is ongoing, notwithstanding the fact that it may not be ratified in its current form, as the refusals of France and the Netherlands show. The Constitutional Treaty eliminated the structure of the three pillars enshrined by the Treaty of Maastricht and which proceeded, with slight alterations, to Amsterdam and Nice. In what specifically concerns the Common Foreign Policy and Security72 (CFSP), the Constitutional Treaty maintained a policy of continuity, without great ruptures, lacking courage and with few substantial alterations. Hence, the Foreign Policy of the Union is regulated in Part I, Title III (Union Competences), article I-16 (Common Foreign and Security Policy), Title V (Exercise of Union Competence), Chapter II (Specific Provisions), art. I-40 and in Part III (Policies and Functioning of the Union), Title V (The Unions External Action), Chapter I (Provisions Having General Application), articles III-292 and article III-293 and Chapter II (Common Foreign and Security Policy), section 1 (Common Provisions), of articles III-294 until article III-308 and section 3 (Financial Provisions), article III-313. It is with this legal mechanism, now unified, that the European Union reiterates the postulate that its foreign policy in the international sphere has as its fundamental pillars the principles that presided " its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law. 73 In addition, it reinforces/amplifies its objectives, especially if we compare them with the previously announced principles of Maastricht (n 2 of article J-1 of the TEU) and with those enshrined at Amsterdam and Nice (n 1 of art.11 of the TEU). Hence, it is competence of the Union to "define and pursue common policies and actions, and shall work for a high degree of cooperation in all fields of international relations, in order to: (a) safeguard its values, fundamental interests, security, independence and integrity; (b) consolidate
See n 2 of article IV-447 of the CT: This Treaty shall enter into force on 1 November 2006, provided that all the instruments of ratification have been deposited, or, failing that, on the first day of the second month following the deposit of the instrument of ratification by the last signatory State to take this step. 71 This Treaty, which establishes a Constitution for Europe, in order to enter into force, must be ratified by all Member-States. Until the present time, only fifteen states have ratified it (Germany, Austria, Belgium, Cyprus, Estonia, Greece, Hungary, Italy, Lithonia, Lithuania, Luxembourg, Malta, Slovakia, Slovenia, and Spain) whilst two Member-States (France on the 29th of May of 2006 and the Netherlands on the 1 st of June of 2006) have voted no in their respective referendums. 72 MORENO, op. cit., p. 829-830: [The] CFSP had and has preserved a very peculiar nature due to the fact that foreign policy is a delicate matter for Member-States. Even though the Constitution has formally eliminated the three-pillared structure instituted at Maastricht, which made the CFSP an intergovernmental pillar, the decision-making process is still characterised by the primacy of states that have preserved their veto powers in most policy deliberations whilst the supranational institutions the Commission, the Court of Justice and Parliament have remained in the margins with regard to their usual competencies. 73 See n 1 of article.III-292 of the CT.
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and support democracy, the rule of law, human rights and the principles of international law; (c) preserve peace, prevent conflicts and strengthen international security, in accordance with the purposes and principles of the United Nations Charter, with the principles of the Helsinki Final Act and with the aims of the Charter of Paris, including those relating to external borders; (d) foster the sustainable economic, social and environmental development of developing countries, with the primary aim of eradicating poverty [we should underline that this new aim is laudable. However, we shall see if it was not included with the sole purpose of closing the borders of the Union]; (e) encourage the integration of all countries into the world economy, including through the progressive abolition of restrictions on international trade; (f) help develop international measures to preserve and improve the quality of the environment and the sustainable management of global natural resources, in order to ensure sustainable development; (g) assist populations, countries and regions confronting natural or man-made disasters; and (h) promote an international system based on stronger multilateral cooperation and good global governance."74 In order to rigorously implement these aims, the Union75 shall: a) strive for the coherence of the diverse policy domains in its external actions and between these and other policies of the Union (n 3 and n 4 of art.I-40 and n 3 of the art.III-292); b) to formulate and implement a common foreign and security policy that extends to all domains of foreign policy and security (n 1 of the art.III-294); c) to identify76 interests and strategic objectives of the Union, consulting, for that end, regularly with the European Parliament on the principal aspects and fundamental options of a common foreign and security policy (n 2 of art.I-40, n 8 of art.I-40 and n 1 of art.III-293); and d) to support actively and without reservations a common foreign and security policy, in a spirit of loyalty and mutual solidarity (n 2 of art.III-294) (among Member-States, in the identification of matters of general interest and in achieving a growing degree of policy convergence among them77 (n1 of art. I-40), As we mentioned, the treaty that establishes a Constitution for Europe did not bring about, in reality, noticeable progress in the domain of the CFSP, although it introduced some "innovative" measures and others that, in our view, are regressive. We shall endeavour here to present some

74

See n 2 of article III-292 of the CT.

Council, Commission, European Parliament, Ministers for Foreign Affairs and Member-States. The European Council. 77 See n 5 and 6 of article I-40 of the CT: Member States shall consult one another within the European Council and the Council on any foreign and security policy issue which is of general interest in order to determine a common approach. Before undertaking any action on the international scene or any commitment which could affect the Union's interests, each Member State shall consult the others within the European Council or the Council. Member States shall ensure, through the convergence of their actions, that the Union is able to assert its interests and values on the international scene. Member States shall show mutual solidarity. European decisions relating to the common foreign and security policy shall be adopted by the European Council and the Council unanimously, except in the cases referred to in Part III (...).
75 76

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of them in synthetic form: 1) number 4 of art. 1-3 of the Constitutional Treaty mentions that in its relations with the wider world, the Union shall uphold and promote its values and interests." We agree fully that the Union should divulge throughout the world its values "of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail." 78 However, we disagree completely that the Union should follow the same steps as its "American counterpart" in divulging and promoting its interests throughout the world. We embrace the thesis that this factor is the direct and most significant cause of insecurity in the World. Some states constantly seek to expand their interests, sometimes completely forgetting the interests of other States. In effect, we share the position that all state interests supported by the values of the Union are legitimate; 2) art. I-7 of the CT confers on the Union a juridical status equal to that of States. This European Union becomes then a subject of international law and probably "one day it [may] have a seat on the Security Council of the United Nations, side by side with the other States"79. In addition, the European Union has the exclusive competence to undertake international agreements when a legislative act of the Union requires it and when it is necessary, in order to grant it the possibility of exercising its internal competence, that is, liable of affecting common rules or altering their scope80; 3) the European Union shall henceforth have competence in every domain of foreign policy, in matters pertaining to security and in the gradual formulation of a common defence policy. In this ambit, Member-States, in addition to supporting actively and without reservations the common foreign and security policy, should refrain from any undertaking that is contrary to the interests of the Union or that is likely to undermine them. 81 This is not an innovative measure; however it expands the purview of the European Union to other domains, such as the gradual formulation of a common defence policy, which may lead to an effective common defence. The common security and defence policy (CSDP) shall be developed within the scope of the CFSP82, thus being its corollary; 4) the flexibility clause, addressed in n 1
78 79

See article I-2 of the CT.

ANTUNES, Manuel Lobo. Notas sobre a poltica externa e de segurana comum no projecto de tratado constitucional, in Europa Novas Fronteiras A Constituio Europeia: que novas perspectivas para a Unio Europeia?, n 13/14, Cascais, ed. Principia Centro de Informao Europeia Jacques Delors, 2003, p. 110.
80

See n2 of art.I-13 of the CT. See n 1 and 2 of article I-16 of the CT.

81

See n1 of article I-41 of the CT: (Specific provisions relating to the common security and defence policy) The common security and defence policy shall be an integral part of the common foreign and security policy.
82

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of art. 18 of the CT is one of the other revolutionary measures; it states that If action by the Union should prove necessary, within the framework of the policies defined in Part III [it should be noted that the Common Foreign and Security Policy is addressed in Chapter II, Title V, Part III of the CT] to attain one of the objectives [n2 of the art.III-292 of the CT] set out in the Constitution, and the Constitution has not provided the necessary powers, the Council of Ministers, acting unanimously on a proposal from the European Commission and after obtaining the consent of the European Parliament, shall adopt the appropriate measures." The inclusion of the "flexibility clause is, undoubtedly, the lever that the European Union needed to autonomously foment new policies within the scope of common foreign and security policies; 5) the establishment of the Union Minister for Foreign Affairs83 is, unarguably, the most significant measure introduced by the Constitutional Treaty (CT) to the CFSP. The Union Minister for Foreign Affairs is one of the VicePresidents of the Commission and is appointed by the European Council by qualified majority, with the agreement of the President of the Commission. This minister is responsible for the implementation of the Common Foreign and Security Policy (CFSP), as well as of the Common Security and Defence Policy (CSDP); he/she may present proposals for the formulation of these policies (CFSP and CSDP), to ensure the coherence of the external action of the Union, implementing these policies on behalf of the Council84, utilising the national and Union policy for these purposes.85 In addition, the Union Minister for Foreign Affairs represents the Union in matters pertaining to Common Foreign Policy and Security (CFSP) as well as engages in political dialogue with third parties on behalf of the Union and, moreover, expresses the position of the Union in international organisations and conferences.86 The Common Security and Defence Policy provides the Union with an operational capacity based on civilian and military means, which may be employed in foreign missions with the aim of insuring peace-keeping, the prevention of conflicts and the reinforcement of international security, in accordance with the principles of the United Nations Charter87; 6) the "typification of the juridical measures adopted in the ambit of CFSP and bestowing upon them a status equal to that of measures adopted in other policy domains"88 is another innovative measure introduced with the adoption of the Constitutional

83

See article I-28 of the CT. See article I-28 of the CT. n4 of article I-40 of the C.T Specific provisions relating to common foreign and security policy. See. n3 of article III-296 do CT. See n1 of article I-41 of the CT. ANTUNES, op. cit., p.110.

84

85See 86

87 88

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Treaty. Thus, "[in order to] exercise the competences of the Union, the institutions use juridical mechanisms in accordance with Part III (Union Policies and Internal Actions), European law 89, European framework-law90, European regulation91, European decision92, recommendations93 and reports"94; 7) the inclusion, in the Constitutional Treaty, of the "solidarity clause" 95 is another measure that should be commended given that it will contribute to the real cohesion of efforts and means in the combat against insecurity and/or in the case of a natural or man-made disaster; 8) the possibility of Member-States instituting reinforced cooperation96 among themselves in the domain of CFSP is another noteworthy measure. Notwithstanding the aforementioned, the Union could progress further in this domain, namely, in the application of this practice in military and defence affairs (art.I-44 and n 1 and 2 of art. 419 and n 3 of art. III-422 of the CT); 9) the inclusion of the "good neighbourhood rule" in the Constitutional Treaty (CT) is another measure that must be lauded given that threats to security often emanate from neighbouring countries 97; 10) the adoption of new juridical instruments for the CFSP given that the Union shall conduct the common foreign and security policy by: (a) defining the general guidelines; (b) adopting European decisions defining: (i) actions to be undertaken by the Union; (ii) positions to be taken by the Union; (iii) arrangements for the implementation of the European decisions referred to in points (i) and (ii); (c) strengthening systematic cooperation between Member States in the conduct of policy."98. In practical terms, the preceding juridical mechanisms (common positions, common actions and common strategies) are reformulated in more "European" terms thus instituting six
89

European Law - is a legislative act of general character. It is obligatory in all its aspects and directly applicable to all Member-States.

European framework law - is a legislative act that binds the Member-State to which it is applied with regard to the objective to be attained leaving, however, to the national governments the choice of the form and means of its implementation. 91 European regulation - is a non-legislative act of general character intended to implement legislative acts and certain provisions of the Constitution. It can either be obligatory in all its aspects and directly applicable to all Member-States or it can bind the state to which it is applied as to a particular objective leaving, however, to the national states the choice of the form and of the means of its implementation. 92 European decision - is a non-legislative act that is obligatory in all its aspects. It is only obligatory to its addressees.
90 93

Recommendations and reports are not binding.

See n1 of article I-33 of the CT. See paragraphs a) and b) of n1 of article I-43 of the CT: The Union and its Member States shall act jointly in a spirit of solidarity if a Member State is the object of a terrorist attack or the victim of a natural or man-made disaster. The Union shall mobilise all the instruments at its disposal, including the military resources made available by the Member States, to: (a) prevent the terrorist threat in the territory of the Member States; protect democratic institutions and the civilian population from any terrorist attack; assist a Member State in its territory, at the request of its political authorities, in the event of a terrorist attack; (b) assist a Member State in its territory, at the request of its political authorities, in the event of a natural or man-made disaster. 96 See Paragraph 2 of n1 of article I-44 of the CT: Enhanced cooperation shall aim to further the objectives of the Union, protect its interests and reinforce its integration process. Such cooperation shall be open at any time to all Member States, in accordance with Article III-418. 97 See 1 and 2 of article I-57 (The Union and its neighbours): The Union shall develop a special relationship with neighbouring countries, aiming to establish an area of prosperity and good neighbourliness, founded on the values of the Union and characterised by close and peaceful relations based on cooperation. (...) the Union may conclude specific agreements with the countries concerned. These agreements may contain reciprocal rights and obligations as well as the possibility of undertaking activities jointly. Their implementation shall be the subject of periodic consultation. 98 See n 3 of article III-294 of the CT.
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new juridical mechanisms: I) General Orientations99; II) European Decision100 on Action101 to be implemented by the Union; III) European Decision on a Position 102 to be adopted by the Union; IV) Rules of Implementation of a European Decision on an Action to be implemented on the position to be adopted. European decisions are adopted by the Council, deliberating in accordance with the rule of unanimity, except in the four situations established from paragraph a) to d) of n 2 of the article III-300103 of the Constitutional Treaty. However, any member of the Council that refrains from the voting procedure can qualify its abstention with a formal declaration. In this case, the abstaining Member-State is not obliged to apply the European decision but should nonetheless recognise that it is binding upon the Union. As a consequence, this Member-State must not act in a manner that contradicts or hinders the action of the Union. The other Member-States shall respect its position.104 V) Systematic cooperation105 among Member-States; and, VI) International Agreements The Union may conclude agreements with one or more States or international

See n1 of article III-295 of the CT: The European Council shall define the general guidelines for the common foreign and security policy, including for matters with defence implications. If international developments so require, the President of the European Council shall convene an extraordinary meeting of the European Council in order to define the strategic lines of the Union's policy in the face of such developments. This is the procedure that replaced the common strategies. 100 In this regard, the European Council and the Council of Ministers have, as a rule, adopted European decisions by unanimity (n1 of article III300 of the CT), expressing their views when solicited by a Member-State or by a proposal of the Union Minister for Foreign Affairs or of the latter with the support of the Commission (article I-40, n6); European decisions of the European Council on the strategic interests and objectives of the Union shall relate to the common foreign and security policy and to other areas of the external action of the Union. Such decisions may concern the relations of the Union with a specific country or region or may be thematic in approach. They shall define their duration, and the means to be made available by the Union and the Member States. (Paragraph 2 of n1 of article III-293 of the C.T.); In essence, the three modalities of European decisions have replaced the previous common positions and actions. 101 See n 1 and 2 of article III-297 of the CT. Where the international situation requires operational action by the Union, the Council shall adopt the necessary European decisions. Such decisions shall lay down the objectives, the scope, the means to be made available to the Union, if necessary the duration (...). The European decisions referred to in paragraph 1 shall commit the Member States in the positions they adopt and in the conduct of their activity. 102 See article III-298 of the CT: The Council shall adopt European decisions which shall define the approach of the Union to a particular matter of a geographical or thematic nature. Member States shall ensure that their national policies conform to the positions of the Union. 103 By way of derogation from paragraph 1, the Council shall act by a qualified majority: (a) when adopting European decisions defining a Union action or position on the basis of a European decision of the European Council relating to the Union's strategic interests and objectives, as referred to in Article III-293(1); (b) when adopting a European decision defining a Union action or position, on a proposal which the Union Minister for Foreign Affairs has presented following a specific request to him or her from the European Council, made on its own initiative or that of the Minister; (c) when adopting a European decision implementing a European decision defining a Union action or position; (d) when adopting a European decision concerning the appointment of a special representative in accordance with Article III-302. [However, note that] If a member of the Council declares that, for vital and stated reasons of national policy, it intends to oppose the adoption of a European decision to be adopted by a qualified majority, a vote shall not be taken (...).
99 104 105

See n1 of article III-300 of the CT.

See n 2 of article III-294 of the CT: The Member States shall support the common foreign and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity. The Member States shall work together to enhance and develop their mutual political solidarity. They shall refrain from any action which is contrary to the interests of the Union or likely to impair its effectiveness as a cohesive force in international relations. N 1 and 2 of art. III-305: Member States shall coordinate their action in international organisations and at international conferences. They shall uphold the Union's positions in such forums. The Union Minister for Foreign Affairs shall organise this coordination. In international organisations and at international conferences where not all the Member States participate, those which do take part shall uphold the Union's positions. (...) Member States represented in international organisations or international conferences where not all the Member States participate shall keep the latter, as well as the Union Minister for Foreign Affairs, informed of any matter of common interest.

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organisations in areas covered by this Chapter106 because the Union already benefits from the status of a juridical entity107; 11) the establishment of a European External Action Service (EEAS) is another innovative measure introduced by the Constitutional Treaty. The inclusion of this service will, in the short term, enable the European Union to develop a diplomatic corps service similar to those of sovereign states. The Union Ministry for Foreign Affairs is assisted by this service in the exercise of its competences. The EEAS works in collaboration with the diplomatic services of the Member-States and is composed of functionaries from the General-Secretariat, the European Council, the European Commission and by personnel from the national diplomatic services that is appointed to serve at the European level108; 12) institutional cooperation between the diplomatic missions of the Member-States and the delegations of the Union in other countries and at international organisations109 is an established practice that, in our view, will lead, in the shortterm, to the establishment of a EU diplomatic corps; 13) the financing of CFSP110 by the operational and administrative expenses and by the European Union budget is another measure that should be commended. Indeed, a Common Foreign and Security Policy that lacks budgetary support and satisfactory means is not viable.111 However, all expenses related to operations that have military or defence implications are left out of the budget, as well as those that the Council decides to exclude. Conclusion: Member-States must definitely become aware of the fact that their progress in the European Union is not and will never be uniform because "[each] state, like any other state, is a sovereign political entity. However, differences between states, from Costa Rica to the [ex] Soviet Union, from Gambia to the United States [from Portugal to Cyprus] are immense. States are similar but they are also different, much like corporations, apples, universities and persons. When we compare two or more objects of the same category, we presume that they are not similar in all

106

See article III-303 of the CT. See article I-7 of the CT.

107

See n3 of article III-296 of the CT. See n1 of article III-301 of the CT. 110 See n1 and 2 of article III-313 of the CT. 111 MACHADO, op. cit., p.19: (this) situation reminds me of what a German diplomat said in 1998 about the CFSP: Much diplomacy, considerable sums of money but no soldiers, in, Wolfgang Ischinger, Die Gemeinsame AuBen und sicherheitspolitik nach Amesterdam Praxis und Perspektiven, 1998, p. 4.
108 109

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respects but only in some. It is not possible to find two identical objects in the world and, yet, this does not mean that objects cannot be compared and combined in a useful manner." 112 Thus, "united in diversity", we can all move forward effectively in the midst of the European Union, combining efforts, policies and/or means or, should this be the interest of some MemberStates, to move towards a "Europe la Carte" and/or "of variable geometry", in some societal sectors, for instance, CDSP, European Constitution, and/or in other uniformed specific policies in detriment of harmonised policies. The European Union should provide the legal mechanisms that will enable such reinforced cooperation(s) to be implemented and extended in the midst of the European Union. The virtues of these policies will become evident in the European Union due to their own merit and not by legislative decree. The Member-States and the European population must identify with these new policies. Today, it is evident that we are part of the European Union and there is not a single European State that has doubts concerning the usefulness of its adhesion. However, we cannot forget that in 1951 there were only six Member-States embracing the European project. Today we are twenty-seven Member-States and it is possible that this number increases as a consequence of the several adhesion requests. What has changed? Nothing, we suppose, except that the European project has succeeded and consolidated itself on account of its own merit and virtues. Thus, we also hope that the same will happen with regard to the domains of the Common Foreign and Security Policy and the Common Security and Defence Policy. Presently, it is evident that the "incapacity of the EU to speak with one voice in important international matters is not only a political problem but also a security problem. The EU may have succeeded in modifying some of the foreign policy decisions of the Bush administration had it been able to speak with one voice. The Americans succeeded in their objective of dividing [into "new" and "old" Europe, as stated by the American Secretary of Defence, Donald Rumsfeld, in accordance with the old strategy "divide and rule"] the European Nations into opposing camps. Yet, in the final analysis, this strategy proved to be a defeat for both the United States and Europe."113 Therefore, in the current geopolitical context, in which new threats (natural and/or human) proliferate throughout the world, a weak Common Foreign and Security Policy (CFSP), and/or an "inexistent" Common Security and Defence Policy (CSDP), is not only a problem of the Member-States and/or of the European Union. It is a global problem with tremendous repercussions for citizens. As Samuel P. Huntington wrote "[in this] new world, local politics is
112

WALTZ, Kenneth N.: Teoria das Relaes Internacionais, Lisboa, 1 ed. Gradiva, 2002, p. 136.

PEHE, Jir: A Poltica Externa e a Poltica de Defesa da Unio Europeia vistas pelos Pases da Europa Central, in As Novas Fronteiras da Europa, Fundao Calouste Gulbenkian, Lisboa, ed. Dom Quixote, 2005, p. 114-118.
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characterised by ethnicity and global politics is that of civilisations. Superpower rivalry is thus replaced by the clash of civilisations. In the new world, the most generalised, important and dangerous conflicts will not take place between social classes, rich and poor and other economically defined groups, but rather between peoples that belong to different cultural entities. Tribal wars and ethnic conflicts will take place within the civilisations." 114 To understand this reality is to safeguard the archetype of international security.

114

HUNTINGTON, Samuel P.: O Choque das Civilizaes e a mudana na Ordem Mundial, Lisboa, 3 ed. Gradiva, 2006, p.28-29.

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UDC No. 658.016.1(470:100)

The international expansion of Russian enterprises. Looking at Italian targets Francesca Spigarelli, PhD
Assistant Professor at the University of Macerata, Italy

Introduction: Investment activity by Russian enterprises is a relatively recent phenomenon that is meeting with mounting interest among analysts and researchers, as has occurred for the other emerging economies. Brazil, Russia, India and China - the so-called "BRIC" nations - are affirming themselves at the international level for their ability to invest considerable resources in both developing countries and industrialized economies (Sauvant, 2005; 2008; Ramamurti R., Singh, 2009; Goldstein, 2009). For these nations, foreign direct investment (FDI)115 represents a fundamental means of achieving economic growth as well as political affirmation at the global level. FDI allows highly accelerated, and often unbalanced, growth processes to be adjusted at the national level. At the same time, individual enterprises, particularly through acquisitions, enjoy access to energy sources and commodities, advanced technologies, brands, skills, know-how and distribution channels to be used to expand and conquer new markets, including in the West (Sauvant, 2005; Spigarelli, 2009). Some aspects make the case of Russia wholly dissimilar to the experiences of the other BRIC nations (Panibratov, Kalotay, 2009). Investors are limited in number and belong to large groups that are either state-owned or the result of privatization after the fall of the Empire. Each transaction involves enormous financial resources. In addition, the main area of interest is the primary sector, and specifically oil, natural gas, metallurgy and electricity (Kalotay, 2008). This paper aims to analyze the primary characteristics of the phenomenon, with a specific focus on the Italian scenario. The goal is to investigate the intensity of Russian FDI, the main players and the underlying motivations. The work is part of a larger research project aimed at comparing the investment activity of BRIC nations in the West and identifying their distinctive traits so as to

The author thanks Invitalia (in particular Dr. E. Muscolo) and the Statistical Information Services Division of the Bank of Italy for data and information provided. 115 Foreign direct investment is defined as the purchase of physical assets (plant and machinery, in particular), or business in a foreign country, run by a parent company resident in another country. These are investments with a typical medium-/long-term holding period. They aim at achieving industrial rather than financial profits. The control over the capital (through voting rights) of the foreign firms must be more than 10%. Cf. OECD, 1996; IMF, 1993.

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arrive at a possible key to interpreting the phenomenon in the context of international investment theory (Buckley, 2002) and to understand its consequences in the fields of economics and industrial policy (Spigarelli, 2009). As mentioned above, special attention is devoted to the Italian economy116: the passive internationalization generated by emerging economies creates interesting research opportunities and raises questions, some of which relate to the possible impact on its avenues of development, the ongoing transformation of industrial districts and the processes of reconfiguring knowledge and allocating value at the local level. This study represents an initial exploratory analysis of the case of Russia that aims to answer several questions that in turn ought to provide further stimulus for research activity: what are the aspects, critical issues and prospects currently associated with the investment flows and transactions undertaken by Russian enterprises at the global level? As compared to global trends, do the initiatives in Italy show any peculiarities in terms of the sectors involved, the underlying motivations and the modes of entry? Is their impact on the Italian economy relevant, particularly in prospective terms, and in which sectors is it most critical? The methodology of analysis employed is of the descriptive type owing to the limited availability of up-to-date, reliable data series. The foreign investment phenomenon is new and statistical surveying systems have only recently been revamped by the Federation. Accordingly, sophisticated, broad analyses are not possible. The first part of the study places Russian investment activity in the context of foreign direct investment theories. The second part initially examines the main channels of Russian FDI at the global level through a review of both flow and stock figures and the most significant greenfield and non-greenfield transactions undertaken. In addition, the strategic goals pursued by Federation operators are then analyzed. Finally, the paper discusses the Italian scenario, commenting on FDI trends at the sector and regional level, followed by an examination of specific cases of investment through the acquisition or incorporation of new business assets. The analysis ends with some general considerations. 1. Russian investment activity: a theoretical overview The theme of Russian foreign direct investment has only recently become the subject of analysis by scholars. The available contributions involve studies of Russian enterprises' international expansion activities in general terms (Bulatov, 1998, 2001; Liuhto, 2001a,b; 2005;
The research activities have focused, thus far, on the case of China. We have analyzed the characteristics of the Go Global policy developed by the government to encourage the globalization of its companies (Bellabona and Spigarelli, 2007), as well as the peculiarities of the investment of Chinese MNEs (Bellabona and Spigarelli, 2006, Boffa et al., 2008), with a focus on the Italian case (Spigarelli, 2009).
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Liuhto, Jumpponen, 2003; Vahtra, Liuhto, 2005; Filippov, 2010) or with a focus on specific sectors and segments (Elenkov, 1995a,b; Heinrich, 2001, 2003, 2005), the problems inherent in measuring flows and stocks (Gusev, 2004) and comparisons of Russian investment trends with their global counterparts (Andreff, 2002, 2003). Other interesting contributions are devoted to management and business issues (Kets de Vries et al., 2004; Shekshnia, 2001). Another highly interesting area of analysis involves placing the Federation's trans-national activity in the context of foreign direct investment theories (Bevan, Estrin, 2004; Kalotay, 2003, 2005, 2008). The entire question is part of the ongoing intense scientific debate concerning the need to adapt and re-read such theories to reflect the typical situation of many emerging economies (Buckley et al., 2006; 2007). At the macroeconomic level, the presence of considerable capital flows towards industrialized nations, as well as, in more microeconomic terms, the internationalization strategies pursued by companies (timing, entry strategy and goals) seem to run counter to the expectations deriving from the application of the principal classical and international business theories of economics117. As regards the specific case of Russia in particular (Kalotay, 2008), doubt is cast on the HeckscherOhlinSamuelson (HOS) paradigm (Heckscher, 1919; Ohlin, 1933; Samuelson, 1948, 1949), Dunning's Investment Development Path (IDP) (Dunning, 1981, 1986), the Upssala School's Stage Theory (Johansson, 1975; Johansson, Vahlne, 1977, 1990) and Dunning's eclectic paradigm (Dunning, 1977, 1993). As an emerging economy, Russia should be characterized by a scarcity of foreign currency and capital and attract resources from developed nations with a wealth of competitive advantages in complex sectors with high capital requirements (Kalotay, 2008). The Federation ought to find itself in the position of receiving foreign investment (Sauvant, 2005). On the contrary, the available data show that it is establishing itself as a net investor, owing in part to extensive access to currency resources provided by high export flows118. As will also be observed in this paper, that position, according to the data source used119, has already been reached or will be reached in the

For an analytical overview of theories related to the economic determinants of FDI, see Valdani, Bertoli, 2006, pp. 45-69. For a review of the main theories on internationalization that could serve as a background for the recent literature on MNEs from emerging countries, refer to Spigarelli, 2009. As for the strategic management literature related to MNEs from emerging economies, refer to the work of Yamakawa, Peng, Deeds, 2008. 118 The trend for the Russian economy is similar to that of many emerging economies that often have imbalances due to an excess availability of foreign exchange produced by high export flows. The case of China, in this sense, is emblematic (Bellabona, Spigarelli, 2006, 2007). Governments are often promoters of corrective measures in response to such unbalanced growth paths. Those measures tend to support foreign investment, not only through tax incentives, financial and administrative incentives, but also through the creation of specific public investment vehicles. 119 According to UNCTAD data, the value of annual flows and their growth rates should quickly allow the country to become a net investor. In 2008, the inflows into Russia totaled 70,320 billion dollars, while outflows were 52,390 billion dollars. Accordingly, the investment stocks held abroad have already reached values similar to those held by foreign investors in Russia. They amounted to 202,837 billion dollars and 213,734 billion dollars in 2008 (UNCTAD, 2009 b). According to data from the Bank of Russia, the position of net investor has already been reached. See Kalotay, 2008.
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very near future. In this light, the weakness of the classical approach to explaining Russian trade and international investment flows appears evident. The IDP approach correlates the level and type of economic development in a country, usually approximated by pro-capita GDP, with its position as an international investor (Dunning, 1981, 1986), measured as the differential between foreign and domestic investment stocks. It is assumed that an economy's development follows a predefined process consisting of structural changes corresponding to modifications in the country's ability to attract/undertake investments 120. During the initial phases of economic growth, international investment activity is limited to inflows. Outflows begin to occur in a later phase of greater economic maturity when competitive advantages have developed to justify the expansion of national enterprises abroad. It is only during the subsequent steps, with economic growth and the strengthening of distinctive advantages, that international activity intensifies to the point that the country becomes a net investor. The case of Russia, as seen for other emerging economies (UNCTAD, 2006; Bonaglia et al., 2007; Goldstein, Pusterla, 2008), does not seem to match the typical phases identified by the IDP (Kalotay, 2008). This is a result, first and foremost, of the "premature" internationalization of domestic enterprises, which expand rapidly and face global competition. Another aspect that interferes with the process identified by the IDP is the more or less formal action by the government, which seeks to establish itself, and not only in economic terms, on the global stage. The available studies indicate that adopting the schemes developed by the Uppsala School and Dunning requires adjusting, and sometimes some straining, the theories in order to interpret the Federation's situation (Kalotay, 2008). The Swedish school views internationalization as a gradual process of extending business activity in a process of gradual, predefined steps. This interpretation provides a partial explanation for the behaviour of several of the protagonists of Russian internationalization. As will also be seen below, following the collapse of the Empire, large primary-sector public or privatized companies, faced with the consolidation of their exportation activity, embarked upon strategic processes aimed at acquiring both production bases and high-value assets in distribution and logistics abroad. The choice of target countries initially favoured culturally similar geographical areas such as the CIS nations, to then gradually shift towards more evolved Western countries. The most significant anomalies with respect to the theories posited by the Uppsala School involve, on the one hand, the prevalent use of non-greenfield investments right from the initial phases of such processes. Acquisitions represent an instrument that is difficult to control.
120

For further information on IDP and its applicability to the case of emerging countries, see Goldstein, Pusterla, 2008, pp. 14-15.

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Accordingly, they should only be chosen in the presence of consolidated international experience. Nonetheless, they have been the preferred mode of entry of Russian operators since the outset. In addition, in the more recent past new enterprises have embarked upon internationalization processes, including in the manufacturing, service and telecommunication sectors, exposing themselves rapidly on the most mature Western markets and skipping the typical steps in the expansion process theorized by the Swedish school. One goal of this approach is to acquire competitive advantages on a global scale not possessed in their home countries, but rather established precisely through the internationalization process.121 On the other hand, according to Dunning's paradigm, the advantages of ownership, location and internalization theorized by the author explain the behaviour, in general terms, of Russian MNEs, albeit with a degree of strain. The most evident issue pertains to the advantages of the internal management of activities (I - Internalization). A significant number of initiatives are aimed precisely at the need for internal management of the broadest possible array of complementary activities linked to a core business. Control of upstream and downstream activities fits with Dunning's vision. The advantages of ownership (O Ownership) possessed by Russian enterprises, specifically those in the primary sector, justify the search for affirmation abroad through extended processes of acquisition and investment (Sauvant, 2005, p. 652). However, it is important to draw a distinction between "Oa" advantages relating to access to intangible assets (technological knowledge, patents, brands, etc.) and "Ot" transaction advantages deriving from management experience and organizational skills (Dunning, Lundan, 2007)122. The Federation's enterprises are considered less suited to possessing "Oa" advantages and better able to found their international competitiveness on management skill in the various activities in the value chain (Kalotay, 2008). In terms of the advantages of location (L Locational), the considerations that may be adapted to the case of Russia pertain to the need to also include the domestic context in the explanation for internationalization processes. Such processes are thought to be driven not only by the attractive qualities of the foreign host countries, but also by the domestic environment, which is sometimes "hostile" to business development (Kalotay, 2008), or by institutional factors that act as drivers of expansion. One should consider, in particular, the role of the government, which more or less openly supports initiatives, some of which may also pursue supra-economic aims. Accordingly, a reading of foreign investment trends must take into consideration the formal and informal rules of the game dictated by the institutional context of reference, as suggested by
This trend shown by Russian companies is similar to what MNEs from emerging countries in general are experiencing (Cfr. Bonaglia, Goldstein, Mathews, 2007; Guillen, Garca-Canal, 2009). 122 For a more thorough analysis of the Dunning paradigm and its connections to more recent theories on MNEs, see Li et al., 2005.
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the literature emerging from the institution-based view of strategy (North, 1990; Peng, 2002; Meyer, Nguyen, 2005; Wright et al., 2005). 2. The Russian Federation and global investments 2.1 The principal trends After having examined the principal characteristics of Russian trans-national activity as identified by scholars, the analysis will now focus on the most recent data regarding Russia's process of international openness. In recent years, the Federation has occupied a highly significant position among global investors: it is second only to Hong Kong of the other emerging economies. From 1995 to 2007, the stock of Russian investments showed the highest growth rate of the BRIC nations (Graph 1). Although in 2008 the financial crisis reduced that value significantly (Connolly, 2009), the trend remains positive (Graph 2): a peak flow of over USD 52 billion was reached this year. Analysts and international institutions emphasize that the considerable growth of investments may be attributed as much to new data surveying systems as to the actual expansion of initiatives. The Russian government has recently taken some important steps to improve the system for gathering and disseminating information regarding direct investments, which are thought to be extensively underestimated in historical series (Bulatov, 1998; Kalotay, 2005, 2008; Kuznetsov, 2008). Moreover, the reduced reliability of the data is exacerbated by the number of cases of round-tripping, which are especially high for Cyprus (Pelto et al., 2003), Holland and the British Virgin Islands (Kalotay, 2008; Connolly, 2009)123. Investments are channelled through companies based in third countries in order to benefit from the subsidies provided to foreign investors. The anomalies generated in surveying FDI are thus considerable. Rather than merely observing investment flow and stock figures, a better way of capturing the peculiarities of Russian trans-national activity could thus be to also examine some data concerning greenfield transactions and mergers and acquisitions undertaken in recent years. Compared to the other BRIC nations, Russia is in second place in terms of the opening of new production and commercial facilities abroad (Table 1) with significant growth rates in the 2004-2008 period (+72%). International expansion through M&A initiatives has been especially intense: from 2001 to 2006, the Federation increased the value of FDI through this mode of entry by more than 300% (Table 2). In 2009, the crisis reduced deals, as also seen in the cases of Brazil and India.
According to recent estimates, roundtripping totalled approximately USD 7 billion between January 1997 and June 2008, representing 10% of total Russian investments (Panibratov, Kalotay, 2009, p. 2).
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Concentrating the analysis specifically on merger and acquisition transactions124, it is useful to reflect on their distribution by sector (Table 3) and by target geographical area (Table 4). During the period from January 2005 to June 2008, the value of M&A deals increased significantly compared to previous years. In terms of the sectors affected, most transactions involved the primary sector, which represented more than 60% of resources invested between 1997 and 2008. In manufacturing, which attracted 20% of resources, the mechanics, metals and motor vehicles segments prevailed in the interests of Russian investors. Finally, telecommunications accounted for almost all M&A deals in the service sector, which remains highly penalized in terms of investment flows. In addition to the strong concentration of initiatives in the primary sector, a further peculiarity of Russian foreign investment activity that distinguishes it from the other BRIC nations emerges from an examination of the geographical distribution of initiatives (Table 4) via M&A deals. The most common targets are in industrialized Western nations rather than in developing areas in Africa, Asia or Latin America. Europe and the United States are the priority targets of M&A initiatives, after members of the Commonwealth of Independent States (CIS). In the former, Russian enterprises seek vast target markets as well as strategic assets fundamental to their global affirmation. On the other hand, CIS nations represent a "natural" target for internationalization processes (Liuhto, Jumpponen, 2003). These areas have highly similar cultural and social characteristics and are near in geographical terms. Consider, first and foremost, Ukraine, Kazakhstan e Byelorussia125. In these countries, commercial penetration strategies may be undertaken with the aim of achieving positions of leadership without excessive competition from Western enterprises or as testing ground for innovative products to be sold in the home country (Filippov, 2010, p. 318). In addition, there is access to natural resources: this makes the CIS the object of great interest for Russian investors, which are, as discussed above, especially active in the primary sector. Russia's extensive presence in the CIS may also be explained by economic and political reasons dating back of the period of transition to the capitalist model. The fall of the Empire was followed by a dispersion of ownership of publicly controlled enterprises in the various independent territories. In order to solve the problems of coordination between companies that had been formally separated, yet remained substantially linked by production and commercial dealings, Russian enterprises undertook numerous mergers and acquisitions aimed at re-establishing control of the fragmented "branches" in the various independent states (Kalotay, 2008, pp. 10-11).
This figure should be used with caution, considering that it refers to announced transactions that could result in financial disbursement only in the medium term, or may even never be finalized due to cancellation. 125 Analysing Russian investment outflows, Kuznetsov (2008, p. 4) states that 30% goes to the CIS. 80% of resources in the CIS goes to Ukraine, Kazakhstan, Byelorussia.
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2.2 Protagonists and strategic motivations The protagonists of Russian trans-national activities are public enterprises or larger privatized companies created through the privatization process that involved primarily domestic investors (Kalotay, 2001; Locatelli, 2006; Kets de Vries et al., 2004). They include Gazprom, Lukoil, Surgutneftegas, Rosfnet Oil, Sberbank, Rusal, Evraz, Norilsk Nickel, Russian Aluminium, Severstal, Youkos and GMZ (Kalotay, 2008)126. They operate in four main industries: oil and natural gas, metallurgy, finance and telecommunications (Kuznetsov, 2008), all of which are still characterized by strong government interests and interference (Liuhto, 2007). In parallel, new protagonists have also been establishing themselves both in the traditional sector of energy resources and commodities (ChTPZ Group, Koks, Metalloinvest and Magnitogorsk Iron & Steel Works) and in industries that have only recently embarked upon internationalization processes (Kuznetsov, 2008). These include machinery (Rostelmash and Transmash Holding), paper (Investlesprom), food (Russian Solod, SPI Group, Russian Vine Trust, Wimm-Bill-Dann, Mezhrespublikanskij Vinzavod and Natiusha) and perfumes (Kalina). In terms of the motivations that inspire the protagonists of Russian expansion, especially during the initial phases of the opening of the economy, FDI has been a tool for finding a safer and more favourable business environment than provided by the domestic market (Guillen, GarcaCanal, 2009), which features a high level of uncertainty and offers little protection of property (Sauvant, 2005, p. 662; Kalotay, 2002; Bulatov, 1998). Strengthening their domestic images and increasing their negotiating power in the motherland continue to represent relevant factors for many enterprises (Kuznetsov, 2008). However, more recently enterprises have begun to follow motivations symptomatic of "active" expansion aimed at obtaining the resources and strategic assets required to operate on Western markets (Liuhto, 2005; Kheifets, 2008). In particular, the investments pursue, first and foremost, goals relating to efficiency-seeking. The broadest possible control of the value chain is sought, typically in the primary sector. In the oil and natural gas industry, Russian companies engage in upstream acquisitions of refineries to process raw materials. At the same time, downstream acquisitions involve distribution chains, natural gas pipelines and crude oil distributions lines, storage networks and service stations. There thus tends to be access to a high level of the value generated in the production and distribution process, in addition to more extensive control of foreign demand (Sauvant, 2005, p. 662) by reaching the end consumer directly (Connolly, 2009, p. 7).
In the Fortune Global 500 ranking, there were 47 MNEs from BRIC countries at the end of 2008. Five of them are Russian (Gazprom, Lukoil, Surgutneftegas, Rosfnet Oil, Sberbank). Gazprom is 47th in the ranking and 4th among MNEs from the BRIC nations, behind three Chinese companies.
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Resource-seeking motivations also characterize the primary sector, in relation to access to natural resources such as oil, metals and minerals, through the acquisition of oil companies, aluminium refineries and gold producers. The need for further expansion of target markets and the achievement of additional market share represents another strategic goal pursued by Russian investments, especially in the service sector. The most significant cases involve the main mobile telephone operators, especially those active in CIS nations127, in addition to giants in the financial sector (Connolly, 2009). Another type of goal relates to strategic-asset seeking, which is aimed at, among other targets, foreign infrastructure services or the elimination of barriers to operation in protected markets 128, as well as the search for technological innovation, know-how and marketing and management skills. Russian enterprises are showing increasing interest in this latter area due to the strong international competition that places them in constant comparison with Western standards and practices. 3. Investments in Italy 3.1 Investment flows and stocks The study will now shift from a global analysis to the case of Italy. The goal is to understand whether the initiatives undertaken in the country show peculiarities in terms of the sectors involved, underlying motivations and modes of entry compared to global trends. An initial source of information that may be used relates to surveys conducted by the Bank of Italy according to the statistical logic of the balance of payments129. The available data show that the uptrend in Russian investments is considerable: it rose from approximately 3 million in 2005 to over 80 million in 2007. Even when the effects of the financial crisis are considered, the phenomenon is rapidly evolving and highly dynamic. Resources even reached a peak in 2009, with over 1 billion for an enormous investment in Sicily. In geographical terms, with the exception of an anomalous investment in Friuli Venezia Giulia in the Household sector in 2007 and the deal in Sicily of 2009 mentioned above, the regions most affected by investment transactions are Tuscany, Emilia Romagna, Veneto and Lombardy (Table 5). During the period 2004-2009, 75% of cumulative flows were intended for Sicily. At the sector
Relevant examples are the acquisitions by MTS of 74% of the main Uzbekistan operator (Uzdunorbita) and by VimpelCom of one of the largest operators in Kazakhstan (Kar-Tel).
127
128

The American steel market, for example, is characterized by import quotas. Through acquiring the U.S. company Rouge Industries, Severstal has succeeded in overcoming barriers to that market. 129 This figure, as emphasized in the literature (Mori and Rolli, 1998, Lipsey, 2001, Federico and Minerva, 2007), is not significant if considered in isolation, given the problems of timeliness and completeness inherent in this kind of survey. However, it may offer some interesting food for thought.

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level, there are considerable problems inherent in surveying and interpreting flows, also associated with the anomaly dictated by "Households." This class, which represents the greatest weight (Table 6), includes artisans, sole proprietorships and consumers. The item's contents, which are highly heterogeneous, do not permit a significant examination of the true target of investments. If this item is excluded, the main targets of investment flows are financial and commercial services, transportation and mechanics (80% of the resources invested by the Federation in 2008). However, energy attracted the greatest flows during the previous year. 3.2 Russian enterprises with investments in Italy An additional perspective to that afforded by the macro-view provided by the Bank of Italy's flow data involves an analysis of Russian-owned enterprises incorporated or acquired in Italy. This is a fundamental aspect in identifying the country's international expansion policy (Cantwell, Barnard, 2008). The available data show that there are 53 Italian enterprises with Russian investors employing approximately 11,000 and generating total turnover of 4.9 billion130. Of these enterprises, 45% are fully or majority-owned, whereas 30% are joint ventures and 25% minority investments. The prevalent mode of entry in Italy is acquisition, which accounts for 80% of the cases. The geographical distribution of these enterprises (Figure 1) shows that the presence of Russian investments is highly concentrated: as many as 38 companies are located in Lombardy, Emilia Romagna and Veneto. In any event, it is interesting to note that Russian initiatives also extend to areas not typically "industrialized" yet rich in natural resources (such as Sardinia or Puglia) or infrastructure, logistics and distribution networks (such as Sicily). More than one-half of enterprises with Russian capital are related to the machine tools and equipment industry and metallurgy. The interest in mechanics is strong, which is certainly justified by the strong competitive position enjoyed by national enterprises: the sector offers a wealth of companies with distinctive advantages founded upon knowledge and know-how, in addition to intense ties and relations with specialized suppliers and sub-suppliers at the local level. Metallurgy and steel in particular have attracted extensive capital in Italy as well, as also seen at the world level. This is a physiological phenomenon, given that Federation investors typically belong to the primary sector.
The analysis of Russian investment in Italy is based on Invitalia data drawn from the R&P-Politecnico Milano database. Data are updated to October 2010.
130

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The levels of investment in energy are equally high: many transactions involve renewable sources and the associated plant and equipment. Acquisitions involve in particular large Russian groups whose interest in this market niche appears singular: these are subsidized markets, in which an investor could seek to obtain the benefits of foreign support for demand. However, the expected impact on the profitability of such large groups might not justify direct investments in such specific business segments. Rather, the goal may be to seek strategic assets in the acquired enterprises in terms of specialist skills and know-how. Or the acquisitions could be part of a larger scheme of arrangements with Italian partners involved in the energy sector. Delving into the details of the protagonists of initiatives in Italy, Renova and Severstal are the largest investors: they control 35 enterprises and are characterized by a high degree of diversification in the areas of interest (Table 7). Renova Renova is one of the largest Russian conglomerate groups with interests primarily in metallurgy and aluminium, oil, energy, chemicals and nanotechnology, in addition to finance, telecommunications and real estate. In 2007 it acquired Energetic Source, a company based in the province of Brescia founded in 1999 following the liberalization of the national electricity market and currently one of Italy's main operators (Vegezzi, 2008 a). Through its Swiss subsidiary Avelar Energy, the group has also entered the solar energy segment in Italy by acquiring an interest in the Emilia Romagna-based group Kerself, a leader in the fields of engineering, designing, manufacturing, installing and distributing photovoltaic plants. In addition to supplying and installing panels and plants in Italy, Greece and Spain, the agreement reached with Kerself calls for the Italian firm to play a relevant role in researching and developing new manufacturing technologies for the photovoltaic sector. In this regard, the strategic-asset seeking aim of the Russian investment is clear: Italy is a fundamental point of access to the European and Mediterranean market, as well as a source of distinctive knowledge and skills in an area of strong interest such as that of renewable energy. In 2007 a 30% interest in the San Severo natural-gas power plant in Puglia, constructed as a joint venture with the Swiss firm Atel, was also acquired through Avelar (Vegezzi, 2008 a; Giliberto, 2007). Severstal Severstal is one of the largest Russian industrial groups and operates primarily in metallurgy and extraction. The main deal closed by the company in Italy involves the acquisition in 2005 of the Lucchini Group, a national leader in steel production with twenty establishments in

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Italy, France, Poland, Great Britain and Sweden (Festa, 2005; Scott, 2009) 131. In 2008, it acquired Redaelli Tecna, one of Italy's main iron cable manufacturers. The strategic goal pursued was to secure a position in the market for the production of steel cables for use in ski-lifts, industrial lifting and anchor cables for oil platforms, in which Radaelli is the European leader (Del Barba, 2008). In both cases there are clear market-seeking and efficiency-seeking goals involving the extension of control abroad of phases upstream and downstream from the acquirer's position in the production process. Rusal Another protagonist of Russian investment in Italy is Rusal, the world's largest producer of aluminium and aluminium products (Unctad, 2007, p. 64)132. In 2006 the group acquired 56.16% of Eurallumina, a company that extracts aluminium at the Portovesme facility in the province of Carbonia-Iglesias (Festa, 2006c). The resource-seeking aim of the initiative is evident. Evraz Important deals involved Evraz, one of the world's largest groups active in the steel and mining sector in general. Highly vertically integrated, the group owns both iron and coal mines and assets in metal distribution and logistics. In 2005 the international holding company acquired 75% of Palini & Bertoli, based in the province of Udine (Crivelli, 2005). The latter is one of the largest manufacturers of steel quarto plates for the carpentry, mechanics and naval construction industry133. The investor's desire to extend control of the production process abroad is evident in this case as well. Novolipetsk In 2006 Novolipetsk, the number-two Russian steel group, formed an alliance in the steel industry by creating a joint venture with the Italian multinational Duferco, one of the world's largest producers, with an output of over seven million tonnes (Festa, 2006a e b). It then further expanded its presence in Italy through acquisitions of foreign groups with Italian subsidiaries, acquiring control of Acciaierie Grigoli in the province of Verona134.

In 2005, Luccini had approximately 9,000 employees and produced over four million tons of steel per year, consisting of hot-rolled long plates, rail products, cast products, forged products, steel for high-quality tools, cold-processed articles and semi-finished goods. 132 In 2008, Rusal produced 4.4 million tons of aluminum and 11.2 million tons of alumina, respectively 11% and 13% of global output (http://www.rusal.ru/en/facts.aspx). 133 After the deal, the production line was enhanced, resulting in a production capacity of 500,000 ton / year. In 2007, Evraz obtained total control. 134 Following the transaction, 75% of Acciaierie was sold by the Grigoli family to Duferco and a new company was founded. Acciaierie are characterized by their ability to produce niche products, in particular special steel for tools, and by their high technological potential. An ambitious plan to upgrade the industrial plants was developed, including new facilities and an increase of the workforce in four years ( http://digilander.libero.it/campagnola894/_private/Polo_L 27Arena_del_2006-11-01.pdf). Given the type of transaction carried out, resulting in indirect control, Acciaierie do not appear in the map of the 41 companies shown in Table 7.
131

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Lukoil A relevant investment transaction in Italy involved Lukoil, one of the world's main players in the oil and natural gas sector135 and number-one in Russia in the oil industry. The company is characterized by strong vertical integration. The main business conducted include, in addition to exploration and extraction, the production and distribution of oil and petrochemical products. In 2008 Lukoil acquired 49% of the ISAB-ERG refinery in Priolo, one of the largest in the Mediterranean (DAscenzo, 2008; Giliberto, 2009), characterized by considerable flexibility in terms of the wide range of raw materials it is capable of processing. Its geographical location is strategic. The complex also has a power plant fuelled by the gasification of tar residue from the refining process. Lukoil thus gained access to an important distribution asset to strengthen its presence in Italy and the Mediterranean136. Gazprom As at the world level, Gazprom, the world's leading operator in the natural gas sector with 17% of global production in 2008, also has a significant presence in Italy 137. The strategy of controlling the entire production chain, from extraction to the sale of fossil fuel, is evident (Kheifets, 2008). In 2006 the partnership agreement signed with ENI allowed the company to enter the Italian natural gas distribution market through the direct sale of quotas. In return, ENI secured access to Russian methane gas and gas prospecting, exploration and production activity in Russia. The agreement extended to many different areas: from oil to natural gas, hydrocarbons and electricity. In this latter sector, the Russian group has plans to become involved in the generation of electrical power in Italy through its presence in Enipower (Giliberto, 2006) 138. In addition, Gazprom also has two strategic joint ventures in partnership with Edison S.p.A. (49% owned by Volta S.p.A.) and Eni itself (50% of Promgas). Sukhoi In 2007, Sukhoi Company and Alenia Aeronautica, a member of the Finmeccanica group, formed the joint venture Superjet International, in which the two companies hold 49% and 51% interests, respectively, to conduct, marketing, sales and post-sales support activity for the Superjet
According to the most recent data, Lukoil controls 1% of global oil reserves and 2.3% of global oil production. For more information on the company and its activities, see: http://www.lukoil.com/static_6_5id_29_.html. 136 The deal consisted of the establishment of a joint venture to manage the Erg Raffinerie Mediterranee. 51% of Erg Raffinerie remained in the possession of the Garrone family, with the possibility for the Russian group to acquire 100% of capital. In the early months of 2009 two new projects were announced. One is related to entering the Italian market for natural gas, in collaboration with Erg. The other is the establishment of a distribution network for Lukoil in Italy. See Gilbert, 2009. 137 Further information on Gazprom's international strategy can be found in Kuznetsov, 2008. 138 The agreement between Gazprom and Eni, signed in 2006, was based on the following key points: 1) Gazprom's commitment to extend the duration of existing contracts for the supply of gas to Eni until 2035 and the possibility to sell an increasing amount of gas directly on the Italian market (possibly with one or more Italian partners) starting in 2007, 2) the identification by Eni and Gazprom of some major projects (companies and assets), both in Russia and abroad, to develop in cooperation, and 3) the signing of strategic cooperation agreements in long-distance gas transportation and in gas liquefaction. See Giliberto, 2006.
135

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100, a regional transport aircraft, in Western markets (Pasqualetto, 2007)139. Market-seeing and strategic-asset seeking goals clearly emerge in this initiative. Other investors Other recent transactions have involved the tourism sector: the Russian tour operator Inturist Vao Oao acquired the Italian hotel operator Azzurro Italia, in addition to individual hotel facilities. Other acquisitions have involved the SPI Group in the wine-making field (Tenute di Toscana), Retal Zao in PET preform production (Tobacco S.p.A.) and ABC in logistics and transport (Gondrand). Finally, in 2007 Borodino GK Zao, an alcoholic beverage manufacturer, acquired an investment in Jobs S.p.A. and full ownership of SBC Bottling & Canning S.p.A., companies that produce packaging and bottling machines. Summary considerations: The study of the trans-national dimension of the Russian economy proposed in this paper has confirmed academic theory and the results of available empirical studies. Regardless of the area of observation adopted, there has been a rapid acceleration in investments in recent years and the concentration of those investments in terms of the resources invested, the promoting parties and the sectors involved. Priority motivations and targets are also common to the various initiatives. The primary mode of entry is acquisition. The analysis of the Italian scenario has shown strong analogies with global trends. Russian operators are demonstrating a sharp interest in metallurgy and energy, in terms of both extraction and production, as well as in logistics and distribution hubs and activities. The expansion of these operators upstream and downstream in the value chain is leading investment initiatives in Italy, partly in consideration of the country's strategic geographical position in the Mediterranean. At the same time, in recent months there have been acquisitions in the service and manufacturing sectors, and in mechanics in particular, and new investors have appeared. The trends examined lead to the prediction of a possible acceleration of investment transactions, also considering the intense political relations between the Italian and Russian governments (Pelosi, 2009; Picchio, 2009). The expansion of activity in Italy could also be driven by the gradual internationalization of medium-sized Russian manufacturing enterprises, which should increasingly tend to take their places on the global scene alongside the primary-sector giants. Such enterprises could privilege
Sukhoi is the largest Russian aviation group. With 28,000 employees, it controls design centers and aircraft factories and manages both engineering and distribution for military and civilian aircraft. Alenia Aeronautica is the Italian leader in aeronautics for the design, development and production of civilian and military aircraft, including unmanned aircraft, and airframes (http://www.disarmo.org/rete/a/23415.html).
139

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Italy in their expansion strategies due both to the affordability of the acquisition transactions, aimed at small and medium enterprises, and to the availability in Italy of resources fundamental to integration and growth abroad. These resources are the know-how, image and specialist skills and knowledge in the areas of production and management that abound in Italy. Much will depend on the Russian government's ability to organize forms of direct assistance and support for such operators, which suffer from the absence of an active policy of stimulating internationalization (Sauvant, 2005; Kheifets, 2008). In this regard, imitating the experience of other emerging nations, and China first and foremost, could represent a winning strategy, as also stated on several occasions by Russian leaders (Levy, 2009)140. The exploratory study conducted in this paper certainly paves the way for additional scientific inquiries, especially in regards to the case of Italy. In particular, it seems interesting to develop the analysis in reference to logistical and infrastructural assets, considering the strategic nature of those assets to the country's competitiveness and the strong interest shown by foreign investors from emerging economies. In this respect, the case of China is emblematic (Spigarelli, 2009). On the other hand, in the mechanics sector the growth of FDI flows and the number of Russian-owned enterprises justify further analysis to understand the impact that the Russian presence is now having and might prospectively have on the national economic fabric. The mechanics sector offers a wealth of companies with distinctive advantages founded on knowledge and know-how, in addition to formal and informal ties and partnerships within local networks. In this regard, it appears useful to conduct a further inquiry to understand whether and how Russian investors are influencing the development patterns of local systems and business districts by entering the production chain. The fact that these are large-scale enterprises that act primary through acquisitions makes the analysis of particular interest. This is in relation both to the bargaining power that such enterprises could exercise over suppliers and sub-suppliers and the possible ability to gradually extend control over the production chain. Another area of great interest is energy, in which numerous Russian acquisitions have been seen, as in logistics, alongside Chinese investments, which are becoming increasingly common in Italy. It will be interesting to monitor the trend of initiatives and examine the impact that they might have on the national energy sector in the event of further expansion.

In his first speech to the business community after his election, Medvedev stressed the centrality of support for the internationalization of Russian companies: Many of them [powerful countries] are very active, like China. And we should be active, too []. We should quietly and measurably forward our interests and convince people that investments from Russia are effective, transparent and necessary for the countries involved. Cf. Belton, 2008.
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Tables and graphs Graph 1 Stock of FDI (billions USD)

Source: Unctad, FDI/TNC

database (www.unctad.org/fdistatistics)

Graph 2 FDI flows (millions USD) Source: Unctad,

FDI/TNC database (www.unctad.org/fdistatistics). Table 1 Numb of greenfield deals completed Brasil China Hong Kong, China India Russian Federation 2003 2004 2005 2006 40 43 34 40 108 98 140 131 127 101 100 119 173 204 191 296 120 109 139 155 Source: Unctat, 2009, pp. 212-214 2007 66 202 120 218 134 2008 101 256 170 359 194 2009 63 303 133 260 150

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Table 2 Number of cross-border M&A purchases by region/economy of purchaser, 1990-2009 19902000 (av) 2001 2002 2003 2004 2005 2006 2007 2008 2009 Brazil 6 14 8 6 11 15 20 35 50 19 China 14 19 34 31 44 45 38 61 69 97 Hong Kong, China 48 67 83 65 84 117 118 116 110 88 India 8 20 27 50 56 98 134 175 163 56 Russian Federation 5 21 20 19 27 45 54 70 108 65 Table 3 Russian M&A deals, sectoral distribution, January 1992-June 2008 (mln USD) Sector 1992-1996 1997-2000 2001-2004 2005-2008 Primary 45 1.098 2.980 33.485 Secondary 451 146 661 13.430 Services 15 456 1.857 8.935 Total 511 1.700 5.498 55.850 Source: Panibratov, Kalotay, 2009, on Unctad, 2009 a, p. 6.

Table 4 Russian M&A deals, geographical distribution, January 1992-June 2008 (mln USD) Paese 1992-1996 1997-2000 2001-2004 2005-2008 Europe 311 1.749 2.766 30.575 North America 170 1.195 13.247 Other industrialized countrie 200 232 465 Africa 250 Asia and Oceania 2.945 Est Europe and CIS 61 1.536 9.297 Total 511 2.212 5.497 56.779 Source: Panibratov, Kalotay, 2009, p. 7.

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Table 5 FDI flows from Russia to Italy (thousands ) by Region of destination Region 2005 2006 2007 2008 Abruzzi 150 379 Calabria 15 260 381 Campania 95 120 20 Emilia Romagna 450 485 11.552 11.000 Friuli Venezia Giulia 90 50.250 300 Lazio 326 804 1.838 549 Liguria 600 906 980 Lombardy 632 4.909 6.877 6.612 Marche 30 Piedmont 41 4.075 120 Puglia 20 Sardinia 629 1.269 163 Sicily 1.170 Toscana 720 749 3.738 25.270 Trentino Alto Adige 15 20 422 Umbria 60 78 400 Valle DAosta 400 Veneto 83 1.023 905 20.757 Non classified area 516 3.832 66 56 Total 3.342 12.882 81.974 69.009 Table 6 FDI flows from Russia to Italy (thousands ) by sector Sectors 2005 2006 Other nonclassifiable sectors 160 3.412 Other industrial products 170 Other services for sales activities 390 1.439 Construction and public works 774 1.652 Family 214 2.015 Financial services 416 Agricultural and industrial machinery 300 Office machines, machines for processing Electrical equipment and supplies Transportation Minerals and ferrous and nonferrous metals 3.416 Minerals and other non metal products 357 Chemical products 516 Energy products Metal products, transportation excluded 600 Textile, shoes, leather, clothing 14 Services related to transportation Hotels and other pubblic services Services for commerce, recovery and repay 218 161 Total 3.342 12.882 Source: Banca dItalia

2009 290 915 1.758 42.000 783 200 2.414 140 20.029 24 200 852.706 1.217 2.846 2.153 19.968 947.643

2007 1.949 62 1.920 262 58.434 147 15.500 20 25 33 3.622 81.974

2008 112 4.325 2.534 3.850 23.125 20.316 2.355 56 795 11.541 69.009

2009 411 100 2.912 1.469 5.673 19.774 40.631 1.503 75 20.002 852.970 29 1.652 442 947.643

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Figure 1 Geographical distribution of Russian owened Italian compagnie (n.)

Source: own calculation on Reprint-ICE data base Table 7 Russian investments in Italy (at october 2010) Italian company Localizati on Sector Energy, gas, wather Processing of metals and alloys Metal products Wholesale Machinery and equipment Electromechanics Energy, gas, wather Energy, gas, wather Energy, gas, wather Foreign Investor Gazprom Jsc Severstal Llc Severstal Llc Gazprom Jsc Renova Renova Renova Renova Renova % share Equal Control Control Control First entry 2009 1999 2005 2008 Mode of entry A A A G A A A G G
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A2a Beta Spa Lombardy Bari Fonderie Meridionali Spa Puglia Bi Mec Srl Cea Centrex Italia Srl D.E.A. Srl Ecoware Spa Ecowatt Srl Energetic Source Green Power Spa Energetic Source Solar Energy Spa Lombardy Lombardy Lazio Veneto Lombardy Lombardy Lombardy

Minority 2008 Minority 2008 Control Control Control 2007 2009 2009

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Energetic Source Solar Investments Srl Energetic Source Solar Production Srl Energetic Source Spa Eurallumina Spa Evraz Palini & Bertoli Spa Flyenergia Spa Gazpromneft Lubricants Italia Geogastock Spa Glencore Italia Srl Gsi Lucchini Spa Helios Technology Srl Ircem Srl Isab Srl Jet Spa Jobs Automazione Spa

Lombardy Lombardy

Energy, gas, wather Energy, gas, wather Energy, gas, wather Processing of metal and alloys Processing of metal and alloys Energy, gas, wather Oil and other energy products Energy, gas, wather Wholesale Metal products Electromechanics Machinery and equipment Oil and other energy products Machinery and equipment Machinery and equipment Machinery and equipment Other professional services Processing of metal and alloys Wholesale Wholesale Logistics and transportation Wholesale Machinery and equipment Metal products

Renova Renova Renova Renova Evraz Group Renova Gazprom Jsc Renova Renova Severstal Llc Renova Renova Lukoil Renova Borodino Gk Zao Renova Severstal Llc Severstal Llc Lukoil Mak Mart Group Renova Nizh Yug Corp. Renova Renova

Control Control Control Control Control Control Control Control Control Control

2009 2009 2007 1968 2005 2007 1986 2007 1976 2005

G G A G A A G A G A A A A A A A A A G G A G A G
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Lombardy Lazio Friuli Venezia Giulia Lombardy Lazio Lombardy Lombardy Tuscany Veneto EmiliaRomagna Sicily EmiliaRomagna EmiliaRomagna EmiliaRomagna

Minority 2008 Minority 2008 Minority 2008 Minority 2008 Control 2007

Kerself Spa Lucchini Servizi Srl Lombardy Lucchini Spa Lukoil Italia Srl Mak Mart Italia Spa Lombardy Lazio

Minority 2008 Control Control Control Control Control Equal 2005 2005 2009 2000 2007 2005

Lombardy EmiliaMarina Blu Spa Romagna Nizh Yug Italia EmiliaSpa Romagna Nuova EmiliaThermosolar Srl Romagna Oerlikon Lombardy

Minority 2008 Control 1984

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Balzers Coatings Spa Oerlikon Graziano Spa Oerlikon Leybold Vacuum Italia Srl Oerlikon Neumag Italy Spa

Piedmont

Machinery and equipment

Renova

Control

1992

Lombardy Piedmont

Wholesale Machinery and equipment Processing of metal and alloys Wholesale Metal products Holding Plastic products Other professional services Paper and paper produtcs Machinery and equipment Machinery and equipment Logistics and transportation Mechanics instruments Logistics and transportation Wholesale Aerospace Energy, gas, wather Altri servizi sociali e personali

Renova Renova Renova Gazprom Jsc Severstal Llc Renova Kompanii Retal Russian Laboratory Investlespr om Group Renova Borodino Gk Zao Severstal Llc Borodino Gk Zao Sovtransau to Holding Stanko Import Sukhoi Company Jsc Renova Severstal Llc

Control Control Control Equal

1950 2005 1999 1993

G A A G A A A G A A A A A G

Portovesme Srl Sardegna Promgas Spa Redaelli Tecna Spa Religio Srl Retal Italia Spa Russian Laboratory Srl Sacchificio Tordera Spa Saem Srl Sbc Bottling & Canning Spa Setrans Srl Sitronic Srl SovtransavtoItalia Srl Stanutensili International Superjet International Spa Tecnoenergia Scpa Tecnologie Ambientali Pulite T.A.P. Srl Tenute Di Tuscany Srl Tmk Italia Srl Vento Energia V.Ener Srl Verona Steel Lombardy Lombardy Lombardy Veneto Veneto Lombardy Puglia EmiliaRomagna Lombardy EmiliaRomagna Piedmont Lombardy Veneto Lombardy Tuscany Tuscany Lombardy Lombardy Veneto

Control 1998 Minority 2007 Control Control Equal 2006 2001 1981

Minority 2008 Control Control 2007 2005

Minority 2007 Control Control 2002 1993

Minority 2008 Control Control 2007 2005

A A A A A A
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Holding Spi Group Minority 2006 Wholesale Oao Tmk Control 2000 Energy, gas, wather Renova Minority 2007 Processing of metal Novolipetsk Equal 2006

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Spa Vision International People Italia Srl Lombardy

and alloys Retail trade

Vision Int. People Group Ltd.

Control

1996

* A: acquisition; G: greenfield investment Source: own calculation on Reprint-ICE data base

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UDC No. 378.014.3(496.5)

Social and cultural dimension of the transformation of higher education in Albania


Kseanela Sotirofski, PhD, University Aleksander Moisiu, Durres, Albania 141 Mit`hat Mema, PhD, University Aleksander Moisiu, Durres, Albania142 Ulpian Hoti, MA, University Aleksander Moisiu, Durres, Albania 143 Abstract : The thesis of this article is that the main factors contributing to the need to rethink higher education institutions today are linked to the advent of the global age. Although Albania is not yet feeling the full force of the ensuing pressures, higher education here is likely to be affected very soon by globalization-related processes. Higher education all over the world, including Albania, is no longer the unique part of the public sector that it used to be, either in explicit political declarations, in public perceptions, or in practical terms. Higher education is doubly affected by the local post-1989 transformations and by more profound and more long-lasting global transformations . To neglect either of the two levels of analysis is to misunderstand a decade of failed attempts to reform higher education systems in the country. The main purpose of this study is to carry out the main issues related to the social and cultural dimensions of the transformation process of the Albanian Higher Education and their impact to the globalization process. The transformation of the higher education system consists on reflecting the changes that are taking place in our society, strengthening the values and practices of our new democracy, redressing the past inequalities, serving a new social order, meeting the national needs and responding to new realities and opportunities. Higher education plays a central role in the social, cultural and economic development of modern societies. In Albania today, the challenge is to redress past inequalities and to transform the higher education system to serve a new social order, to meet pressing national needs, and to respond to new realities and opportunities. A brief summary of related literature review will be presented. Among all traditional factors that determine social and cultural dimensions of transformation process and it`s positive impact, it is thought that government politics related to higher education, the students choice chance, the existence of a lot of universities that can be accessed, the changing curricula, the

141 142

Dr. Kseanela Sotirofski. Dean of Faculty of Professional Studies, University A. Moisiu, Durres, Albania Prof. As. Dr. Mit`hat Mema, Rector, University A. Moisiu, Durres, Albania 143 Ulpian Hoti, MA, Chancellor, University A. Moisiu, Durres, Albania

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students exchange, the openess to the word are important and all the factors above affect the social and cultural dimensions of higher education transformation process in in Albania. This paper also attempts to assess the likely evolution of Albanian higher education social and cultural transormation and it`s effects in the future, based on the thought that the tranformation process to a global world has not yet been completed and transitional dynamics and other global factors will influence further evolution of these dimensio Key Words: cultural, social, transformation, higher education, globalization. Introduction: The purpose of this article is to demonstrate the necessity of grounding current discussions about higher education reforms in Albania in a wider context of global social, economic, and cultural change. The article is builded on the thesis that any thinking about reforms in higher education in general, outside a particular context of reforming the whole public sector remains incomplete. Similarly, any thinking about the institution of the university in particular while disregarding the past context of its modern, nation-state-oriented, social role, place, and function, provided by the old model in the new post-national global age, remains incomplete. New Forces Versus Old Forces Regarding to higher education, several working assumptions can be made. First of all, the transformation of higher education seems inevitable worldwide, as much in the weal the OECD countries, including the countries of Central and Eastern Europe, as in the developing countries, the forces behind change being global in nature. These forces are similar, even though their current influence varies from country to country and from region to region 144. The main forces that are driving the transformation of higher education today are old forces (governmental and public pressure for transparency and accountability, the focus on costs, effectiveness, productivity, and quality assurance, etc.) and new ones (new providers of higher education, rapid advances in technology, and changing social demands for renewable skills in the global age). The old forces call only for the changing of policies, but the new forces may require new ways of thinking about policy scholarship and policy making as well. The forces of globalization are of primal importance, yet they appear to be under estimated in current higher education policy and research. These forces are undoubtedly
144

OECD. Education and the Economy in a Changing Society. Paris: Organization for Economic Cooperation and Development, 1989.

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bound to change the nature of the academic enterprise to a degree that today seems almost unimaginable. In order to demonstrate the power of the forces of globalization of higher education that are transforming higher education, it is important to evoke the political, economic, and social contexts of globalization-driven transformations in thinking about the nation-state and the welfare state.145 (Kwiek, 2000). In the American context, new forces for change mean new providers, new technologies, and a new society. Here the whole globalized underpinning of higher education transformations is already taken for granted (Newman, 1999).146 In the context of Central and Eastern Europe, however, these forces need to be supplemented with more basic ones, those of globalization and internationalization. In this context, an area that is much more dependent on the European political and economic scene, especially in the case of the countries about to enter the European Union, these issues in connection with higher education reforms may still seem irrelevant (Strange, 1996).
147

The point made in this article is that the most powerful forces to

affect higher education in the country are the new forces, not the old forces with which European higher education research and policy, at both national and European level, seem to be predominantly concerned Globally, we are on the threshold of a revolution in thinking about higher education. Higher education is asked to adapt to new societal needs, to be more responsive to the world around it, to be more market, performance, and student oriented, to be more cost effective, accountable to its stakeholders, as well as competitive with other providers. Traditional higher educational institutions seem challenged and under assault all over the world by new teaching and research institutions that claim to do the same job better and cheaper. The traditional basic structure of higher education seems unable to cope with growing and unprecedented workforce requires ments in the West, especially in America. Locally, i n the countries of Central and Eastern Europe, academics are not prepared for these global challenges (Altbach, 2001).148

145

KWIEK, M. The Nation- State, Globalization and the Modern Institution of the University, Theoria: A Journal of Social and Political Studies (December 2000). 146 NEWMAN, F. Intellectual Skills in the Information Age, The Futures Project: Policy for Higher Educa tion in a Changing World, A. Alfred Taubman Center for Public Policy and American Institutions, Providence, Rhode Island, Brown University, 1999, www.futuresproject.org . 147 STRANGE, S. The Retreat of the State: The Diffussion of Power in the World Economy. Cambridge: Cambridge University Press, 1996. 148 ALTBACH, P.G. Higher Education and the WTO: Globalization Run Amok, International HigherEducation 23 (Spring 2001).

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The Global Context The public policy of higher education needs to be especially aware of the global context of current worldwide transformation. It is certainly not sufcient to understand today that reformed institutions are certainly needed. The point is to percieve why it is that they need to be changed and what the role of the state, the public services it provides, including higher education, will become. The message of this article could also be that it is impossible to understand transformations in higher education today without understanding the concurrent transformations of the social world, including transformations of the state and of citizenship in the global age. As one of the most striking features of the new world is its increasingly global nature, neither policy makers nor policy scholars in higher education can ignore the huge social, economic, political, and cultural consequences of globalization.What is often recommended by public policy analysts today is the privatization of public higher education in Europe following the introduction of new laws on higher education. Privatization is understood as a gradual process where by higher education leaves the public sector of purely state-supported services and moves towards greater self-sustainability. The degree of privatization may, however, vary. In a new social and political environment introduced by theories and practices of globalization, it is not only the World Bank, OECD, and IMF, from among transnational organizations (see OECD, 1987, 1989, 1990, 1998; World Bank, 1994, 1997),149 that are extremely interested in stimulating new varieties of higher education on a global scale. As Philip G. Altbach
150

observes in his recent article in

International Higher Education (2001):`with the growing commercialization of higher


149

OECD. Universities Under Scrutiny. Paris: Organization for Economic Cooperation and Development, 1987. OECD. Education and the Economy in a Changing Society. Paris: Organization for Economic Cooperation and Development, 1989. OECD. Financing Higher Education: Current Patterns. Paris: Organization for Economic Cooperation and Development, 1990. OECD. Redening Tertiary Education. Paris: Organization for Economic Cooperation and Development, 1998. WORLD BANK. Higher Education: The Lessons of Experience . Washington, DC: The World Bank, 1994. WORLD BANK. The State in a Changing World: World Development Report. Washington, DC:The World Bank, 1997. 150 ALTBACH, P.G. Higher Education and the WTO: Globalization Run Amok, International HigherEducation 23 (Spring 2001).

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education, the values of the market place have intruded onto the campus`. The conclusion of the attitude Altbach summarizes, clearly favoured by transnational organizations, is the following: in this context a logical development is the privatization of public universities the selling of knowledge products, partnering with corporations, as well as increases in student fees. The main factors contributing to the need to rethink higher education institutions today are connected with the advent of the global age and with globalization pressures. Although the countries of Central and Eastern Europe are not yet feeling these pressures in higher education, they are soon likely to be affected by globalization-related processes. Also, there will be a clear shift from the question, what is it that higher education needs from society to the opposite question, what it that society needs from higher education is (Newman, 1999). 151 Globalization is the political and economic reality with which the countries of the region will have to cope. It will not go away; it will come to the region and stay, as Jan Sadlak (1998)152 rightly remarks (without, however, making reference to Central Europe): The frank acknowledge ment that globalization has become a permanent feature of our social, economic, and cultural space is essential in order to take advantage of what it can offer as well as to avoid the perils it may involve. Thus the re-invention of higher education in the region should be accompanied by both conceptualizations and activities of the academy itself. Otherwise unavoidable and necessary changes will most likely be imposed from the outside. The world is changing radically, and there are no indications that higher education institutions will be spared the consequences. They will most likely have to change radically too. The academy must start thinking about its future, drawing on its human resources. It would be useful for the academic community to have a comparative view of three legal, economic, and cultural contexts in which it used to operate, currently operates, and will operate: the first being the 1980s (the communist period), the second being the 1990s (the transition period),
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NEWMAN, F. Intellectual Skills in the Information Age, The Futures Project: Policy for Higher Educa tion in a Changing World, A. Alfred Taubman Center for Public Policy and American Institutions, Providence, Rhode Island, Brown University, 1999, www.futuresproject.org . 152 SADLAK , J. Globalization and Concurrent Challenges for Higher Education, The Globalization of Higher Education. London: Open University Press, 1998.

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and the third being the opening of the new century in which changes to come are unavoidable (Kwiek, 2001).153 Although it is necessary to realize that things will never be the same, it is also necessary to attempt to envisage how they might actually be. Reformulation of the educational role of the welfare state Following what was stated above; the main global factors contributing to the transformation of higher education can be summarily labeled as globalization. This be put into three separate categories: first, the collapse of the crucial role of the nation-state in current social and economic development, with its vision of higher education as a national treasure contributing to national consciousness; second, the reformulati on of the functions of the welfare state, including new scope for public-sector activities to be funded by the state; and third, the invasion of the economic rationality/corporate culture into the whole public sector worldwide. The second are global problems for which global solutions must be sought by global organizations interested in higher education. Moreover, the following other factors are determining a new situation for higher education including: new technologies, new student bodies (increasingly diversied ages, returning and working students, learners involved in life -long learning), new higher education providers, new increasingly global student expectations, and increasingly competitive, market-oriented, success-greedy social environments, and phenomena (The Futures Project, 2000).154

153 154

KWIEK, M. Globalization and Higher Education, Higher Education in Europe 261 (2001): 27 38 . THE FUTURES PROJECT: POLICY FOR HIGHER EDUCATION IN A CHANGING WORLD. Policies for Higher Education in the Competitive World, A. Alfred Taubman Center for Public Policy and American Institutions, Providence, Rhode Island, Brown University, 2000, http://www.futuresproject.org

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Public higher education under scrutiny Thus another thesis is that public higher education institutions in Central and Eastern Europe will be increasingly under public scrutiny. The following reasons are the most important of them. First, there is the wide spread public perception of the academic community as still being immune from public criticism, non-reforming, non transparent, and non-accountable to societyhence, decreasing public support accompanied by declining public trust in higher education institutions generally. Second, the public funding of higher education is, in general, decreasing. There are other pressing new societal needs that require high levels of funding (Hovey, 2000).155 The increasing public scrutiny is also the consequence of the enlightening mission of higher education. Finally, two different reasons need to be mentioned. In the global, increasingly post -national age, the national pride that used to guide the public attitude to higher education is not of prime importance any more. Failure of higher education reforms What is import and to be understood is that in the past decade of mainly failed higher education reforms, the social and economic surroundings have changed dramatically. The state has sharply reduced the level of funding of public higher education and has begun to reform the public sector generally (Tomusk, 2000). 156 And what is extremely important in thinking about higher education in particular (and the public sector in general) have occurred worldwide. It appears that worldwide tendencies in a rapidly globalizing world can no longer be disregarded, especially in those regions that are undergoing vast social and economic transformations. Thus, again, it is important to view the changing academic surroundings and the current problems of higher education in a more global context, for it is in this context that

155

HOVEY, H.A. State Spending for Higher Education in the Next Decade: The Battle to Sustain Current Support. Washington, DC: The National Center for Public Policy and Higher Education. 2000. 156 TOMUSK, V. The Blinding Darkness of the Enlightenment:Towards the Understanding of Post State-Socialist Higher Education in Eastern Europe . Turku:University of Turku Press, 2000.

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higher education systems here will be operating sooner or later (Kwiek&Finikov, 2001).157 Thus, again, it is important to view the changing academic surroundings and the current problems of higher education in a more global context, for it is in this context that higher education systems here will be operating sooner or later. No clear and consensual model for the reform of higher education in Central and Eastern Europe has been found after almost a decade of permanent reforms or attempts at reform. The models provided are divergent; the very world is in the process of being made. The exact features of the global world being entered are still unknown; hence, the nature of higher education of the future is equally unknown (Scott, 1999).158 So far as reforms are concerned, the options are as follows: first, a business as usual attitude, i.e., the rejection of any awareness of a new situation (higher education institutions themselves, faculty, and management) and hence no important reforms attempted (governments). Second, the beginning of reforms in very broad terms, followed by a reforming higher education law itself. Or third, the beginning of reforming higher education without an awareness of the new world into which Albania will be entering, with its new global challenges, including that of reform as a never-ending process. The decisive factor will not be politics, media campaigns, or agreement between the state and higher education institutions themselves, but public pressure in a new sense: the pressure of consumers, i.e., students and their families. In the worst scenario, the turning point will be a near collapse of higher education systems. The issue of free higher education guaranteed by constitutions in certain Central and Eastern European countries is a hot political issue. For the faculty, the statusquo seems acceptable, for it is known. Reforms and their consequences are unknown, i.e., potentially threatening. The general direction in favour of greater accountability and heavier work loads (accepted as a future reality) is evident.
157

KWIEK, M., & FINIKOV, T. Higher Education in Central and Eastern Europe: Poland and Ukraine. Ki ev: Taxon Publishing House, 2001. 158 SCOTT, P. Globalization and the University, CRE Action 115 (1999).

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Generally, the faculty reacts passive mentality, a feature inherited from communist times, an inability to adapt to new, revolutionary changes as a result of systemic reforms and age factor, for the average age of professors. Finally, on the part of transnational institutions that are traditionally viewed as supporting reforms in the region, there is still only light pressure for reforms in public higher education (Slaughter&Cerlie, 1997).159 Reform will come as the result of a long process given that the main stakeholders involved, the state and higher education institutions, are unwilling/unable to proceed with reforms. But as the result of public debate and business community requirements for the labour market, as well as supranational recommendations to cut public expenses generally, the state and the institutions (faculty) will be forced to introduce far-reaching changes in order to avoid the loss of social credibility. Conclusion: Given that because of the current global ideological climate and powerful globalization pressures public higher education institutions do not have much of a chance to avoid the processes of privatization (in the long run), they should be well aware of current takes rather than ignoring the mina business as usual attitude. In order to avoid being merely an object of future transformations, the academic world, in the current situation, should understand the general direction of the changes affecting the institutions and try to influence the transformation. They should participate in the creation of, and in the debates about, the legal contexts of the functioning of higher education and mobilize themselves along with the personnel of think tanks in order to lobby for the best choices available. They should form coalitions of experts, legislators, and academics in order to infuence both the state and public opinion in favour of their views, make use of international
159

SLAUGHTER, S., & LESLIE, L. L. Academic Capitalism: Politics, Policies, and the Entrepreneurial University.

Baltimore: Johns Hopkins University Press, 1997.

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recommendations when reasonable, but oppose them when not, and always remember that the old, golden era of the academy will never return. The single most important recommendation for the state and legislative bodies is to begin (or rather intensify) their work on new laws on higher education that would introduce means for the gradual privatization of higher education rather than trying to block the process so that the decomposition of public higher education institutions can be stopped. It is also of vital importance, nowadays, to be able to keep a thin balance between looking backward and looking forward, between taking the past (the modern idea of the university) and taking the future as points of reference in discussing the condition of higher education in the region. It is important not to be retroactive and past oriented. The world is in a period of history in which the traditional, philosophy-inspired, nation-state oriented, and well fare-state supported, modern university, for a variety of reasons, is no longer culturally, socially, and economically acceptable. These are facts that cannot be changed. The future of higher education is taking shape right before our eyes, and it is the task of the academic community not only to analyze the transformations but to infuence them as much as possible.

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References: ALTBACH, P.G. Higher Education and the WTO: Globalization Run Amok, International HigherEducation 23 (Spring 2001). HOVEY, H.A. State Spending for Higher Education in the Next Decade: The Battle to Sustain Current Support. Washington, DC: The National Center for Public Policy and Higher Education. 2000. KWIEK, M. The Nation- State, Globalization and the Modern Institution of the University, Theoria: A Journal of Social and Political Studies (December 2000). KWIEK, M. Globalization and Higher Education, Higher Education in Europe 261 (2001): 27 38 . KWIEK, M., & FINIKOV, T. Higher Education in Central and Eastern Europe: Poland and Ukraine. Ki ev: Taxon Publishing House, 2001. NEWMAN, F. Intellectual Skills in the Information Age, The Futures Project: Policy for Higher Educa tion in a Changing World, A. Alfred Taubman Center for Public Policy and American Institutions, Providence, Rhode Island, Brown University, 1999, www.futuresproject.org . OECD. Universities Under Scrutiny. Paris: Organization for Economic Cooperation and Development, 1987. OECD. Education and the Economy in a Changing Society. Paris: Organization for Economic Cooperation and Development, 1989. OECD. Financing Higher Education: Current Patterns. Paris: Organization for Economic Cooperation and Development, 1990. OECD. Redening Tertiary Education. Paris: Organization for Economic Cooperation and Development, 1998. SADLAK , J. Globalization and Concurrent Challenges for Higher Education, The Globalization of Higher Education. London: Open University Press, 1998. SCOTT, P. Globalization and the University, CRE Action 115 (1999). SLAUGHTER, S., & LESLIE, L. L. Academic Capitalism: Politics, Policies, and the Entrepreneurial University. Baltimore: Johns Hopkins University Press, 1997. STRANGE, S. The Retreat of the State: The Diffussion of Power in the World Economy. Cambridge: Cambridge University Press, 1996. THE FUTURES PROJECT: POLICY FOR HIGHER EDUCATION IN A CHANGING WORLD. Policies for Higher Education in the Competitive World, A. Alfred Taubman Center for Public Policy and American Institutions, Providence, Rhode Island, Brown University, 2000, http://www.futuresproject.org TOMUSK, V. Market as Metaphor in Central and East European Higher Education, International Studies in Sociology of Education 82 (1998) . TOMUSK, V. The Blinding Darkness of the Enlightenment:Towards the Understanding of Post State-Socialist Higher Education in Eastern Europe . Turku:University of Turku Press, 2000. URRY, J. Locating Higher Education in the Global Landscape, Higher Education Quarterly (December 1998) . WORLD BANK. Higher Education: The Lessons of Experience . Washington, DC: The World Bank, 1994. WORLD BANK. The State in a Changing World: World Development Report. Washington, DC:The World Bank, 1997.
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UDC No. 342.4(4-672EU)

The European constitution and the space of freedom, security and justice(*) Jos Noronha Rodrigues M.A (**)

Assistant Professor of Law at the University of the Azores, Portugal

Summary: 1. Abstract. - 2. Introduction. - 3. The Genesis of a Space of Freedom, Security and Justice 4. From Amsterdam to Nice. - 5. The "European Constitution" and the Space of Freedom, Security and Justice. 6. Conclusion Abstract: The Genesis of a Space of Freedom, Security and Justice or the Genesis of a Space of Security, Freedom or Justice? What is the correct terminology? The right terminology is the latter, since () These three notions are closely interlinked. Freedom loses much of its meaning if it cannot be enjoyed in a secure environment and with the full backing of a system of justice in which all Union citizens and residents can have confidence. These three inseparable concepts have one common denominator people and one cannot be achieved in full without the other two. Maintaining the right balance between them must be the guiding thread for Union action. Key words: Evolution, Common Space of Freedom, Security and Justice, the European Constitution

(*)This

paper was presented at the University of Santiago de Compostela (Spain) - Doctoral Programme in "Public Law and Integration Processes: The European Union and Mercosur" - seminar on "The Articulation of a Common Space of Freedom, Security and Justice" - taught by Professor Dr. Miguel Arenas Meza of the University of Santiago de Compostela (Spain). (**) Director of the Centre of Juridical-Economical Studies of the University of the Azores, Coordinator of the discipline of Law at the Department of Economics and Management of the University of the Azores, Doctoral student of Law at the University of Santiago de Compostela (Spain), M.A in International Relations, DEA in Law of the European Union and Assistant Professor of Law at the University of the Azores, e-mail.,

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European Scientific Journal Introduction: The process of European integration is presently at a critical juncture, similar to that which is commonly associated to ageing individuals. Several symptoms have been diagnosed: indecision, uncertainty, doubts and fear. In truth, it is evident that we urgently need an effective, well coordinated and uniform common space of freedom, security and justice (SFSJ) and/or a common space of security, freedom and justice (SSFJ) within the European Union. The free circulation so desired in the 1950's has become a reality, with all its virtues and faults. Presently, crime and/or insecurity displace in the European Union at the same speed with which we move in the continent, transforming it in a risk society, a gunpowder fuse and a potential surgical target for endless threats. We have established the pillars of freedom without having first institutionalized the necessary concomitant conditions in the domains of security and justice. On the twentieth century, we opted for a "policy of small steps," of "progresses and regresses", "gradual or residual yielding of competencies", for an "uncertain destiny policy" and for a "policy of variable geometry." Hopefully, in the twentieth century, we shall have the courage to opt for a "uniform policy of the European citizen" given that the questions pertaining to freedom, security and justice, as well as all other policies of the European Union (EU), are transversal in nature and concern, directly or indirectly, the twenty-sever Member-States. To address these pressing concerns we need more than mere policy harmonization. They require the institutionalization of common procedures and legislative structures in the EU. This paper is divided into three parts. In the first, we shall provide a brief historical overview of the evolution of the space for freedom, security and justice. We will emphasise some of the virtues of the reforms that were undertaken in this domain by the adoption of several European and/or International treaties (Paris, Rome, the Single European Act, the Schengen Agreement, the Convention implementing the Schengen Agreement and the Maastricht Treaty). In the second part of the paper, we will briefly consider the recently conceived "space of freedom, security and justice." With that end in mind, we shall consider the pertinent aspects of the Treaties of Amsterdam and Nice as well as other juridical mechanisms that, directly or indirectly, introduced small contributions for the consolidation of the SFSJ. Finally, in the third part we shall address the alterations that were introduced in this ambit by the Treaty establishing a Constitution for Europe, notwithstanding the fact that it is known that this Constitutional Treaty will "probably never" be adopted, at least in its actual form, given that France (29th May 2006) and the Netherlands (1st June 2006) both refused to ratify it.

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European Scientific Journal The Genesis of a Space of Freedom, Security and Justice The genesis of a space of freedom, security and justice or the genesis of a space of security, freedom and justice? What is the correct terminology? Undeniably, if we wish to be rigorous, it is the first formulation that concerns us more directly160. This objective was first formulated in the Amsterdam Treaty and then developed in Title IV of Part III of the European Constitutional Treaty (ECT) (art. 61 to 69) with the provisions relating to visas, asylum, immigration and other policies pertaining to the free circulation of people. However, what we are attempting here, in addition to the scientific rigour that should accompany such endeavours, is to stimulate the debate and to demystify certain juridical/doctrinal conceptions concerning the genesis of the SFSJ. We consider that the appropriate terminology should be "the Genesis of a Space of Security, Freedom and Justice" and not the "the Genesis of a Space of Freedom, Security and Justice." It should be noted that this is not a mere lapsus linguae or a mistake in writing but an intentional and purposeful act, with the objective of stimulating debate. It may seem that these different orderings of vocabulary are trivial. However, in our view, the correct sequence of terms is of crucial importance to adequately understand the genesis, options, history161 and the real motivations of the existing space of freedom, security and justice in the European Union. The "Founding Fathers of Europe"162, the European States/European

160

VITORINO, Antnio, A construo de um Espao de Liberdade, de Segurana e Justia: novas fronteiras da poltica europeia in Europa Novas Fronteiras, n 16/17 Espao de Liberdade, Segurana e Justia, Lisboa, ed. Centro de Informao Europeia Jacques Delors, 2005, p. 11: "Thus, the history of the space or freedom, security and justice begins in truth with the adoption of the Treaty of Amsterdam in 1999." 161 DUROSELLE, Jean Baptiste, L`Ide d`Europe dans l` histoire, Paris, ed. Denol, 1965, p. 17: "In the beginning of his brilliant work, which he entitled Vingt-huit sicles d`Europe, Denis de Rougemont believes he can formulate some "general themes" that are working hypotheses. I quote the following: 1. That Europe is much older than its nations. Europe risks perishing from their disunion and their ambitions - ever more illusory to maintain absolute sovereignty. 2. From its birth, Europe has exercised a function that is not merely universal but also universalizing. Europe has fomented the world...3.A united Europe is not a modern economical or political undertaking but rather an ideal that was contemplated for more than a thousand years by its brightest minds..." 162 This is evident in Winston Churchill's speech of the 19 th of September 1946 at the University of Zurich, in CAMPOS, Joo Mota de, Direito Comunitrio, Lisboa, 5 ed. Fundao Calouste Gulbenkian, V-I, 1989, p. 44 to 45: "(...) If Europe were once united in the sharing of its common inheritance, there would be no limit to the happiness, to the prosperity and the glory which its three or four hundred million people would enjoy (...). [the war ruins and hatred] they may still return. Yet all the while there is a remedy (...).What is this sovereign remedy? It is to re-create the European fabric (...) and to provide it with a structure under which it can dwell in peace, in safety and in freedom. In this way only will hundreds of millions of toilers be able to regain the simple joys and hopes which life worth living. (...) And why there not be a European group which could give a sense of enlarged patriotism and common citizenship to the distracted peoples of this mighty continent? And why should it not take its rightful place with other great groupings and help to shape the honourable destiny of man? (...) Under and within the world concept we must re-create the European family in a regional structure called, it be may be, the United States of Europe.

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European Scientific Journal Community163, at the moment of their conception, implicitly sought the establishment of a space/zone of security (given the catastrophic results of the two Great Wars)164 which gradually evolved to a space of freedom and justice. Indeed, if we bear in mind the preamble of the Treaty of Paris165, we can ascertain that concerns with security were always a subjacent consideration166. Even though we know that the real motivations that led to the establishment of the European Coal and Steel Community were economic in nature, "Conscious of the fact that European can only by concrete actions which create a real solidarity and by the establishment of common bases for economic development."167 At the time, the founders of the EU were convinced that the control and redistribution of the most important raw materials of the war industry (coal and steel)168 should be under the responsibility of a supra-national entity - The High Authority. This would promote the sustainable economic development of the Member-States and would concomitantly condition/impede the resurgence of new conflicts in Europe, especially in the midst of the recently created European Coal and Steel Community. It is in this context that we argue that, when the European Community was established, the formation of a security zone/space was always an implicit and/or subjacent objective. Security was and still is169 one the main concerns of citizens. We
163

The expression "European Community" that replaced "European Communities" resulted from a resolution adopted by the European Parliament (OJ n. C 63 de 13.3.1978, p. 36) and was used in a letter that the President of the Council sent to the President of the European Parliament, dated of 26.7.1978. 164 As argued by MOREIRA, Adriano, Teorias das Relaes Internacionais, Coimbra, 5 ed. Almedina, 2005, p. 15: "The law of the growing complexity in international life": "Both wars, that of 1914-1918 and that of 1939-1945, were considered world wars but it was forgotten that they were worldly in their effects but exclusively western in their causes." Regarding the Euroworld and its end, see MOREIRA, Adriano, Cincia Poltica, Coimbra, 6 reimpresso, Almedina, 2001, pp. 405-416. 165 The Treaty of Paris was signed by four European States (Germany, Belgium, France, Italy, Luxembourg and the Netherlands) on the 18th of April of 1951. It came into place in the 23th of July of 1952 and was declared null on the 23th of the July 2002. 166 See Preamble of the Treaty of Paris, in Tratado de la Unin Europea, Tratados constitutivos de las Comunidades Europeas y otros actos bsicos de Derecho Comunitrio, Madrid, ed. Tecnos, sptima edicin, 1999, p. 261: "Considering that world peace may be safeguarded only by creative efforts equal to the dangers which menace it; Convinced that the contribution which an organized and vital Europe can bring to civilization is indispensable to the maintenance of peaceful relations; (...) Desirous of assisting through the expansion of their basic production in raising the standard of living and in furthering the works of peace; Resolved to substitute for historic rivalries a fusion of their essential interests; to establish, by creating an economic community, the foundation of a broad and independent community among peoples long divided by bloody conflicts; and to lay the bases of institutions capable of giving direction to their future common destiny (...)". 167 Ibidem. 168 See Article 3, Treaty of Paris of 1951. 169 See Special Eurobarometer - The role of the European Union in Justice, Freedom and Security policy areas in http://ec.europa.eu/public_opinion/archives/ebs/ebs_266_en.pdf: A vast majority of the EU25 population would favour a more extensive role being played by the European Union in all fields covered by the survey. These results confirm that citizens perceive EU activities in these areas as legitimate. Respondents believe first and foremost that there should be more decisionmaking at EU level regarding the fight against organized crime and trafficking, as well as against terrorism (both 86%). This indicates that interviewees are concerned about their security and hence believe that EU-wide action could provide them with a higher level of security. Around eight out of ten citizens across the EU consider that the Union should play a more significant role in the fight against drug abuse (81%) and in the exchange of police and judicial information between Member States (78%). A great majority also want more decision-making at European level regarding the promotion and protection of fundamental rights (73%), the control of external borders (72%), as well as asylum and migration policy (65%).

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European Scientific Journal reiterate this thesis, regardless of the juridical, cultural, social and military interpretations of such expressions as "world peace", "dangers", "peaceful relations", "furthering the works of peace", "substituting for historic rivalries a fusion of (...) essential interests" and "bloody conflicts", among others. We hold the view that these terms represent the possible interpretations of the "security" vector in its plenitude, thus insuring the security of Member-States as well as the personal security of each citizen. Given the success170 of the ECSC, in 1955, at the Conference of Messina, the founding Member-States of the "European Community"171 decided to re-launch the process of integration. They requested that a commission, presided by the then Belgian Minister of Foreign Affairs Paul-Henri Spaak, produce a report on how to secure this objective. On the 21st of April of 1956, the so-called "Spaak Report" is presented. Among its recommendations are the establishment of a common general market - The European Economic Community (EEC) and of a sector market - the European Atomic Energy Community (EAEC). On the 25th of March of 1957, the Treaty of Rome is signed and through it the European Atomic Energy Community (EAEC or EURATOM) and the European Economic Community (EEC) are established. If we analyze the preamble of this Treaty, we will ascertain that concerns with security remain at the forefront of policy considerations: "Realizing that nuclear energy constitutes the essential resource for ensuring the expansion and invigoration of production and for effecting progress in peaceful achievement; (...) Anxious to establish conditions of safety which will eliminate danger to the life and health of the people; Desirous of associating other countries with them in their work and of co-operating with international organizations concerned with the peaceful development of atomic energy (...)172. In addition to this, it should be noted that, for the first time, matters relating to security and freedom are associated to: For the attainment of its aims the Community shall; (...) (d) ensure a regular and equitable supply of ores and nuclear fuels to all users in the Community; (...) (g) ensure extensive markets and access to the best technical means by the creation of a common market for specialized materials and equipment, by the free movement of capital for nuclear investment, and by freedom of employment for specialists
170

RODRIGUES, Jos Noronha, Asylum Policies and the Right to Asylum in the European Union, Master's Dissertation in International Relations, University of the Azores, 2006, p.61: "[The Treaty of Paris] was the experiment that was necessary to proceed with further integration and with the development of European construction which took place in phases of stagnation, dynamism and crises(...)." 171 At this time only the European Coal and Steel Community existed. 172 See Preamble of the Treaty of Rome that instituted the European Atomic Energy Community in Tratado de la Unin Europea. Tratados constitutivos de las Comunidades Europeas y otros actos bsicos de Derecho Comunitrio, Madrid, ed. Tecnos, 9 edicin, 2001, p.311: For the attainment of its aims the Community shall, in accordance with the provisions set out in this Treaty: () b) establish, and ensure the application of, uniform safety standards to protect the health of workers and of the general public, () e) guarantee, by appropriate measures of control, that nuclear materials are not diverted for purposes other than those for which they are intended ().

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European Scientific Journal within the Community; (h) establish with other countries and with international organizations any contacts likely to promote progress in the peaceful uses of nuclear energy."173 The second Treaty, which institutionalized the European Economic Community (EEC)174, established a clear linkage between questions related to security with those pertaining to freedom: "Recognizing that the removal of existing obstacles calls for concerted action in order to guarantee steady expansion, balanced trade and fair competition; Resolved to strengthen the safeguards of peace and liberty by establishing this combination of resources, and calling upon the other peoples of Europe who share their ideal to join in their efforts (...).175 Member-States gradually came to the realization that questions relating to security and freedom were not opposed but rather complementary and, as a consequence, they decided to undertake concerted actions given that one of the objectives of the Community was to promote the establishment of a Common Market176 characterized by (...) the abolition, as between Member States, of the obstacles to the free movement of persons, services and capital177. However, these States did not succeed with the promotion and implementation of the mission that had been entrusted to them - the establishment of a Common Market - due mainly to the fact that decisions in this domain were subject to the rule of unanimity. The rule of majority voting that was applied at the Council was not, at the time, accepted by France because Paris feared being subjected to decisions with which it did not agree.178
173 174

Idem, art.2, p. 313. This Treaty was adopted on the 1st of January of 1958 with an unlimited duration while the Treaty of Paris was meant to expire in fifty years. 175 In Op. cit., Preamble of the Treaty establishing the European Economic Community, p.105. 176 See Treaty on European Union, Lisboa, ed. Assembleia da Repblica, 1994, p. 23-28, article 2 of the TEEC: "It shall be the aim of the Community, by establishing a Common Market and progressively approximating the economic policies of Member States, to promote throughout the Community a harmonious development of economic activities, a continuous and balanced expansion, an increased stability, an accelerated raising of the standard of living and closer relations between its Member States; art.8: 1. The Common Market shall be progressively established in the course of a transitional period of twelve years. The transitional period shall be divided into three stages of four years each; ().
177 178

Id., paragraph c) article 3 of the TEEC, p.24. See http://gaullisme.free.fr/ GEIBLimites.htm: Les Limites de L`acceptation du Trait de Rome: La crise de la Chaise Vide et les compromis de Luxembourg ; "Starting in 1965, France opposed the European Commission, presided by Walter Hallstein (1958-1967). Charles de Gaulle opposed two institutional reforms of the European Economic Community (EEC). The first reform concerned the modalities of voting employed by the Council of Ministers. The Treaty of Rome, in effect since the 1st of January of 1996, stipulated that unanimity rule in voting would replace the rule of qualified majority. The second reform concerns the reinforcement of the competencies of the European Parliament and Commission.(...) This institutional reform was envisaged as a result of the implementation of new modalities of financing of the European Economic Community (EEC), that is to say of the Common Agricultural Policy (CAP) that was to follow from the Customs Union (...). Charles de Gaulle rejected the proposals of the Commission for various reasons that had to do with form and substance (...). At the end of the French Presidency of the Council of Ministers on the 30th of January 1965, Maurice de Couve de Murville, Minister for Foreign Affairs, declared: "The promises were not honoured, I close the meeting." This was the beginning of the "Chaise Vide" crisis that opposed France to its five European partners and to the European Commission. For a more detailed study of the "Chaise Vide" crisis, see Campos, Joo Mota de, Direito Comunitrio, Lisboa, Volume I, 5 ed., Fundao Calouste Gulbenkian, 1989, pp. 232 to 256: "It thus seemed evident that at the same time that the French government, with its policy of chaise vide, intended, in a truculent

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European Scientific Journal In this manner, and in accordance with paragraph h) of article 3 of the Treaty of the European Economic Community179, from 1957 to 1970, there was an attempt to introduce a programme for promoting the legislative harmonization of the six founding Member-States of the EEC, so as to increment the four freedoms of the European Community: free circulation of persons, services, capital and merchandise180. Initially, the Member-States considered this principle from a mainly economical perspective and related to dependent and independent workers. Gradually, the Member-States recognized the need to extend the principle of free circulation to all social strata, even if in an embryonic, experimental and/or casuistic form. Nevertheless, the gradual implementation of the principle of free circulation, considered not only from a social perspective but also from an economic one181, meant that, concomitantly, there was an upsurge in criminality, such as trans-national organized crime and the trafficking of drugs, arms, munitions, explosives, cultural goods, human beings, clandestine immigration and terrorism, among others. In the 1970's, Europe faced other social problems, such as the surge of political and economic refugees, dislocated persons and/or immigrants originating from diverse parts of the world and escaping from poverty, violations of the most elementary human rights, racial discrimination, political, social, cultural and religious crises and dictatorial regimes, among other possible reasons. The emergence of these new social problems and the efforts of the MemberStates towards incrementing the four communitarian freedoms (considering even the possibility of abolishing the internal borders), provided the impetus for the Member-States to gather informally, at the margins of the Community, with the objective of fomenting an ever more effective and pragmatic cooperation in the domains of justice and internal affairs. On the 7th of September of 1967, in Rome, the six founding-members of the European Economic Community signed the Naples Convention on Mutual Assistance and Cooperation between Customs Administrations. In this manner, the embryo of the first framework for exchange, intergovernmental cooperation and informal European Political Cooperation (EPC) was established182. The gradual consolidation of the principle of freedom in the midst of the
manner, to escape the rule of unanimity (and) reduce the freedom of action, powers, authority and even the prestige of the Commission in the domain of foreign relations and within the Community itself. (...)". 179 See Treaty on the European Union, op.cit., paragraph h), article 3 of the TEEC: "For the purposes set out in the preceding Article, the activities of the Community shall include (): (h) the approximation of their respective municipal law to the extent necessary for the functioning of the Common Market. 180 For a more detailed study of this matter, see DUARTE, Maria Lusa, A Liberdade de Circulao de Pessoas e a Ordem Pblica no Direito Comunitrio, Coimbra, Coimbra Editora, 1992, p. 67 and following. 181 The principle of free circulation, from a social perspective, has the citizen as its object, his/her personal wishes, well-being, leisure and the aspects of mobility that are not exclusively economic. 182 Although we can only speak of informal European Political Cooperation after the 27 th of October 1970, when the Davignon Report is approved by the Ministers of Foreign Affairs of the six in the form of a resolution on the 20 th of July 1970; the Ministers

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European Scientific Journal Community brought new surges in criminality. Thus, "From 1975, intergovernmental cooperation gains momentum, at the margin of the juridical framework of the European Communities in the domains of immigration, asylum rights and police and judicial cooperation. In essence, it is an informal exchange of experiences, information and competencies, by creating networks to facilitate this exchange among the Member-States."183 In practice, this informal intergovernmental cooperation aimed at establishing "(...) an information and exchange network between the Member-States, related to (questions concerning) Justice and Internal Affairs. (...) [With this end in mind], workgroups are created, such as the TREVI group184 [which was responsible for matters related to Terrorism and Security, (...) [and which] in 1985 [extended] its competencies to illegal immigration and to organized crime] and the Ad Hoc Group185 which focused on matters related to immigration."186 However, much like the European process of integration, this group also evolved erratically, with small steps, regresses187 and advances. In

propose that: Being concerned to achieve progress towards political unification , the Governments should decide to cooperate in the field of foreign policy () This cooperation has two objectives: a) to ensure greater mutual understanding with respect to the major issues of international politics, by exchanging information and consulting regularly; b) to increase their solidarity by working for harmonization of views, harmonization of attitudes and joint action when it appears feasible and desirable () and the Davignon Report presented on 23 July 1973, Part II (...) Governments will consult each other on all important foreign policy questions and will work out priorities, observing the following criteria: (1) the purpose of the consultation is to seek common policies on practical problems; (2) the subjects dealt with must concern European interests whether in Europe itself or elsewhere where the adoption of a common position is necessary or desirable () in, CDs dos 50 Anos de Europa, Os Grandes Textos da Construo Europeia, 1998, Gabinete em Portugal do Parlamento Europeu e Representao da Comisso Europeia em Portugal. For a more detailed study of this matter see also MARTINS, Ana Maria Guerra, Curso de Direito Constitucional da Unio Europeia, Coimbra, ed. Almedina, 2004, p. 57: "On the 27th of October 1970 the Davignon Report, which addresses the institutionalisation of European Political Cooperation in modest terms, is approved by the Ministers of Foreign Affairs of the six. This report was later completed by the Copenhagen Report, of the 23th of July of 1973 and by the Paris Summit II of 1974, which created the institutional framework for such cooperation - the European Council. 183 See Justice, Freedom and Security in http://europa.eu/scadplus/leg/pt/lvb/l33022.htm. 184 ELSEN, Charles, Les mcanismes institutionnels: Trvi, Schengen, Dublin, Maastricht, in Pauly, A. (ed.), Schengen en panne, I.E.A.P., 1994, pp. 43-54, especially p.44: "The TREVI Group was created by the Member-States of the European Communities, acting at the Ministerial level at the Rome Summit in 1975. Its stated purpose was to combat terrorism and its activities were progressively extended to related domains, mainly to training and equipping of police forces, to combating problems of public order, to police cooperation and, later, to the establishment of Europol. The Trevi Group is therefore directly related to the adoption of measures to combat clandestine immigration. The meaning of this acronym is shrouded in mystery. According to a retired member of the Group of Coordinators of "free circulation of persons", the letters of TREVI "are not abbreviations for the words Terrorism, Repression and International Violence but rather are, in reality, a reference to the famous Roman fountain. Hence the creation of Trevi was decided in Rome and the Dutch member responsible for choosing a name for the ad hoc telex system connecting the European capitals was called Fonteijn." 185 HAINZ, Michael, Una Europa cerrada o una Europa de los derechos, in Revista de Fomento Social, n. 179, J, July September, 1990, p. 306: "However, we should not confuse the Trevi Group with the Ad Hoc Group on Immigration: the first gathered Ministers of Internal Affairs and Justice of the Community to address questions of "public order", such as terrorism, drug-trafficking etc, whilst the Ad Hoc Group convoked the Ministers in charge of public order and had a special sub-group called "asylum." The confusion between the groups results from the fact that they often met at the same time and that the Commission stated (Doc Com (88) 640, 7, 11. Brussels 7-12-88) that both groups were concerned with intensifying the control of persons in the external frontiers of the European Community." 186 RODRIGUES, op. cit., p. 66. 187 Ibid.: "(...) But with the depression that took place in Europe in the 1970's, the situation was not favourable: difficult economic circumstances; diminution of economic growth and the increase of unemployment; oil-price shocks; the end of the Bretton

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European Scientific Journal the 1980's, Europe gradually begun to revitalize its economy. In 1979, the Court of Justice issued the "Cassis de Dijon"188 judgment, which established the principle of the mutual recognition of national rules189. In 1982, the European Heads of State that met at the Council of Copenhagen190 decided that the establishment of the internal market was a priority and defined other objectives in the economic and social domains, thus reaffirming their political consensus regarding enlargement. In 1984, at the European Councils of Fontainebleau191 and Dublin192 this objective of creating an internal market was reiterated. Thenceforth, the Ministers of Internal Affairs and Justice of the Member-States started meeting every six months to address specific questions relating to judicial, policing and cross-border cooperation and the free circulation of persons (these meetings began taking place informally since 1975). In 1985, the European Council of Brussels193 reinforced the aim of establishing an internal market and President Jacques Delors presented, on behalf of the Commission, the White Paper194 on the completion of the internal market; this process should be completed by the 1st of January of 1993195. In the
Woods system; the failure of the first attempt at an economic and monetary union and the spontaneous arrival of a larger number of refugees, asylum seekers and immigrants. Facing this scenario, each Member-state started adopting new protectionist measures, in order to avoid the arrival of unwanted workforce, poor migrants and asylum seekers with dubious motivations; in this manner, the Member-states were trying to protect the economies and the national markets as well as its industries and other sectors of activity. These protectionist measures were applied not only in relation to third countries but also against the partners of the Community." 188 Judgment of the Court of Justice of the European Communities , in process 120/78, 20 th February 1979: "1 - By order of 28 April 1978, which was received at the Court on 22 May, the Hessisches Finanzgericht referred two questions to the Court under Article 177 of the EEC Treaty for a preliminary ruling on the interpretation of Articles 30 and 37 of the EEC Treaty, for the purpose of assessing the compatibility with Community law of a provision of the German rules relating to the marketing of alcoholic beverages fixing a minimum alcoholic strength for various categories of alcoholic products. 189 Cassis de Dijon Judgment (CJEC 120/78 of 20/02/79). This process refers to German regulations concerning the minimum content of alcohol in liqueurs of fruits. The Court of Justice imposed equivalent measures, that is, a product that was legally imported to and marketed in a Member-State of the Community should be accepted in other Member-States. 190 Declarations by the European Council relating to the Internal Market: The European Council... instructs the Council: - to decide, before the end of March 1983, on the priority measures proposed by the Commission to reinforce the internal market Copenhagen, 3-4 December 1982. 191 Declarations by the European Council relating to the Internal Market: It asks the Council and the Member States to put in hand without delay a study of measures Which could be taken to bring about in the near future the abolition of all police and customs formalities for people crossing intra-Community frontiers - Fontainebleau, 25/26 June 1984. 192 Declarations by the European Council relating to the Internal Market: The European Council... agreed that the Council, in its appropriate formations: ...should take steps to complete the Internal Market, including implementation of European standards Dublin, 3-4 December 1984. 193 Declarations by the European Council relating to the Internal Market: ...the European Council laid particular emphasis on the following... fields of action: a) action to achieve a single large market by 1992 thereby creating a more favourable environment for stimulating enterprise, competition and trade; it called upon the Commission to draw up a detailed programme with a specific timetable before its next meeting Brussels, 29/30 March 1985. 194 European Commission, Completing the Internal Market. White Paper from the Commission to the European Council (COM (85) 310 final) and in Bulletin n. 6/1985 of the EEC. 195 RODRIGUES, op. cit., p. 69-70: () The White Paper, as a condition for the construction of a common internal market, proposed 280 directives of general character in the scope of free circulation. In this manner, it regrouped the measures to be implemented in three themes: "Elimination of physical frontiers", "Elimination of technical frontiers" and "Elimination of fiscal frontiers." The first of the themes, "The elimination of physical frontiers" had the greatest impact on Europeans, given that they were accustomed to age-old barriers, physical and/or artificial, between States. These barriers, more than dividing them,

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European Scientific Journal same year, the European Council of Milan196 approved the White Paper of the Commission and decided to implement the internal market. In 1986, the first revision of the Treaty of Rome was undertaken with the adoption of the Single European Act (SEA)197. This act institutionalized the European Political Cooperation198 (a process that began informally in the 1970's) and set a deadline for the establishment of an internal market199 that would be characterized by the abolition of the obstacles to the free circulation200 of goods, persons, services and capital" within the EEC201. The deadline was set for 31st of December of 1992202. However, in 1985, outside the scope of the EEC203, the Schengen Agreement204 was signed, thus institutionalizing the

differentiated them and stopped them from freely accessing the intended common market. This possibility was seen by the Europeans as an effective and paradigmatic example of the internal market, given that it proclaimed the free circulation of goods, persons, services and capital between the Member-States. This free circulation was assured with the elimination of physical frontiers, the abolition of border posts and controls on goods and persons in the internal borders. As to the second theme, "The elimination of technical frontiers", which had as an objective the end of national regulations which acted as obstacles, proposed the harmonization of legislation and/or the practice of mutual recognition. Finally, the theme "Elimination of fiscal frontiers" sought to suppress obstacles created by the disparity in indirect taxation between the Member-States, thus promoting the harmonization or approximation of VAT and/or taxes on specific products. Its most important success was the unanimous adoption of the Sixth VAT Directive by the European Council in 1977." 196 Took place on the 28th and 29th of June 1985. 197 The Single European Act was signed on the 17th of February 1986. For a more detailed study of this subject, see DE RUYT, Jean, L`Acte Unique Europen, Brussels, ditions de l`Universit de Bruxelles, 1987. 198 See Preamble of the Single European Act "(...) Aware of the responsibility incumbent upon Europe to aim at speaking ever increasingly with one voice and to act with consistency and solidarity in order more effectively to protect its common interests and independence, in particular to display the principles of democracy and compliance with the law and with human rights to which they are attached, so that together they may make their own contribution to the preservation of international peace and security in accordance with the undertaking entered into by them within the framework of the United Nations Charter."
199 200

In 1972 the Tindemans Report already proposed the abolition of internal borders for economical efficiency reasons. This is a principle developed as time progressed. See, for instance, Directive 2004/38/EC of the European Parliament and Council on the 29th of April of 2004, concerning the right of the European Union citizens and their families to circulate freely and establish residence in the territories of Member-States, an alteration of regulation (EEC) n. 1612/68 and which annuls the Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ L 158 of 30.04.2004, p. 77). 201 See paragraph c) or articles 3 and 8-A of TEEC. 202 RODRIGUES, op .cit., p. 72-73: "(...) The Political Declaration of the Governments of the Member-States (n.13) concerning free circulation, annexed to the Single European Act, demonstrates clearly the form that justice and internal affairs policies will take in the future: "In order to promote the free movement of persons, the Member-States shall cooperate, without prejudice to the powers of the Community, in particular as regards entry, movement and residence of nationals in third countries. They shall also cooperate in the combating of terrorism, crime, the traffic in drugs and illicit trading in works of art and antiques." This form of cooperation in the fields of justice and internal affairs had its faults, for, although the policies resulting from European Political Cooperation ought to be coherent with the external policies of the European Community, that was not always the case and there was, sometimes, duplication of efforts and lack of coordination between them. Hence, there was a need to integrate this cooperation within the juridical framework of the European Community." 203 Ibid.: "(...) It should be noted that the Schengen Agreement were signed by some Member-States of the European Economic Community. Principally because it was not possible to reach an agreement within the Community as to the amplitude of the principle of the free circulation of persons. a) Some defended that this principle should only be applied to European citizens and this implied the preservation of the physical barriers whose elimination was proposed in the White Paper of the Internal Market; b) Other Member-States were committed to the total freedom of circulation regardless of whether one was a European citizen or a national of a third country." 204 Signed on the 14th June of 1985 in the Luxembourgish city of Schengen.

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European Scientific Journal gradual suppression of border controls205. In this manner, the normative principle put forth in paragraph c) of article 3 of the Treaty of Rome and the alterations introduced by the Single European Act of "[abolishing], between Member-States, [the] obstacles to the free circulation of persons, goods and capital" were first206 implemented in the Schengen Area207. We refrain from addressing here the short-term (articles 1 to 16 - Title I) and the long-term measures (articles 17 to 33 - Title II) for the effective implementation of the four communitarian freedoms that were proposed in the Schengen Agreement. On the 19th of June of 1990, the Convention implementing the Schengen Agreement was signed208: Taking as their basis the Schengen Agreement of 14 June 1985 on the gradual abolition of checks at their common borders; Having decided to fulfill the resolve expressed in that Agreement to abolish checks at their common borders on the movement of persons and facilitate the transport and movement of goods at those borders; Whereas the Treaty establishing the European Communities, supplemented by the Single European Act, provides that the internal market shall comprise an area without internal frontiers (...)209. The most meritorious aspect of this Convention was the definitive elimination of the internal frontiers that still existed between the Member-States that signed the Schengen Agreement and the creation of a common external frontier where all border controls (entry and/or exit) are undertaken. In addition, it outlined compensatory measures and policies of co-ordination for the effective implementation of the free circulation or movement of persons, services, goods and capital, as well as defined essential concepts, such as: "internal border", "external border", "internal flight", "third state", "alien", " alien for whom an alert has been issued for the purposes of refusing entry", "border crossing point", "border check", "carrier", "residence

205

See Preamble of the Schengen Agreement, in Textos Fundamentais, Lisboa, ed. Ministrio dos Negcios Estrangeiros, 1998: "Aware that the ever closer union of the peoples of the Member States of the European Communities should find its expression in the freedom to cross internal borders for all nationals of the Member States and in the free movement of goods and services; () Considering the progress already achieved within the European Communities with a view to ensuring the free movement of persons, goods and services; Prompted by the resolve to achieve the abolition of checks at their common borders on the movement of nationals of the Member States of the European Communities and to facilitate the movement of goods and services at those borders." 206 Id., article 30 of the Schengen Agreement: "The measures provided for in this agreement which are not applicable as soon as it enters into force shall be applied by 1 January 1986 as regards the measures provided for in Title I and if possible by 1 January 1990 as regards the measures provided for in Title II, unless other deadlines are laid down in this agreement." 207 RODRIGUES, op. cit., p. 75 208 This convention was adopted in 1995. The Schengen Agreement was signed by France, Germany, Belgium, Luxembourg and the Netherlands. However, other Member-States gradually adhered to the Schengen Area: on the 27 th of November of 1990, Italy joined; on the 25th of June of 1991 Spain and Portugal; on the 6th of November of 1992, Greece; on the 28th of April of 1995, Austria; on the 19th of December of 1996, Denmark, Finland and Sweden. Iceland and Norway hold the status of associate whilst "Ireland and the United Kingdom of Great Britain and Northern Ireland, which are not covered by the Schengen Acquis, may at any time request the whole or partial application of this acquis." See article 4 of the Protocol integrating the Schengen Acquis into the framework of the European Union. 209 Preamble of the Convention implementing the Schengen Agreement, signed in 1990.

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European Scientific Journal permit", "application for asylum", "asylum seeker", "processing application for asylum"210, among others. The States that subscribed this convention committed themselves to cooperate on matters of vital social importance, such as Justice and Internal Affairs. With that end in mind, they adopted new procedures and regulatory and/or administrative provisions and stated their intentions to cooperate in policing and security matters211; to reach agreements and/or sign bilateral and/or multi-lateral conventions to implement juridical cooperation on criminal matters212; they agreed on the application of the ne bis in idem principle213; agreed to set in place rapid procedures of extradition214; among other procedures. However, we consider that the most effective and notable procedure for cooperation that was established was the common information system, the so-called Schengen Information System (SIS)215: "The Contracting Parties shall set up and maintain a joint information system, hereinafter referred to as "the Schengen Information System", consisting of a national section in each of the Contracting Parties and a technical support function. The Schengen Information System shall enable the authorities designated by the Contracting Parties, by means of an automated search procedure, to have access to alerts on persons and property for the purposes of border checks and other police and customs checks carried out within the country in accordance with national law and, in the case of the specific category of alerts referred to in Article 96, for the purposes of issuing visas, residence permits and the administration of legislation on aliens in the context of the application of the provisions of this Convention relating to the movement of persons."216 The "Schengen Acquis"217 was, without a doubt, the indispensable experiment that enabled the European Community to move forward with new processes of integration and, concomitantly, with new policies. Although the Single European Act "[introduced] very timid innovations, [it generated] a dynamic of development in the process of European integration, given that the internal market [that was to come into place in 1993] imposed, on the one hand, the creation of new policies and, on the other, the provision of the means that were necessary to undertake that integration. In addition, the internal market proved to be an impetus towards new and more evolved stages of economic integration, such as the economic and monetary union, which
See article 1 Title I of the Convention implementing the Schengen Agreement, 1990. Id., articles 39 to 47, Title III, Chapter I. 212 Id., articles 48 to 53, Title III, Chapter I.
210 211

Id., articles 54 to 58: A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a criminality has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party.
213

see article 59 to 66. Id., see Title IV, Chapter I. 216 Id., see n.1, article 92. 217 The Schengen Acquis consists of the Schengen Agreement, the Convention implementing the Schengen Agreement and of all acts and decisions of the Executive Committee and/or entities created by it.
214 Id., 215

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European Scientific Journal requires new institutional frameworks (...). The development of an economic and monetary union, [the idea of a Political Union, the implementation of a Common Security and Foreign Policy (CSFP), the cooperation in the fields of Justice and Home Affairs (JHA), the reinforcement of the democratic legitimacy of institutions (paragraph b) and c) of article 189 of the TEU) and of the status of the citizen and of citizenship in the Union (article 8 to 8E of the TEU), the protection of fundamental rights (article F of the TEU), the enlargement of the communitarian competencies to other areas beyond the economical matters (article B of the TEU) and the clarification of the role of the European Council218, are only some of the factors that led] to the [second] revision [of the Treaty of Rome]."219 On the 7th of February of 1992, the Treaty on the European Union220, known as the Maastricht Treaty221, was signed. This was a new stage in the process of integration and the fundamental pillar of the "new" juridical framework of the community in which the "(...) the High Contracting Parties establish among themselves a European Union"222, build upon the structure of a Greek temple supported by three pillars: a) the communitarian pillar (the first pillar)223 where the so-called "community method" is applied224; b) a Common Security and Foreign Policy - CSFP (second Pillar, Title V,
See Treaty on the European Union, article D: "The European Council shall provide the Union with the necessary impetus for its development and shall define the general political guidelines thereof."
218 219

MARTINS, op. cit., p. 68-69. See Preamble of the Treaty on European Union, in Tratado de la Unin Europea. Tratados Constitutivos de las Comunidades Europeas, op. cit., p. 57: "(...) Resolved to mark a new stage in the process of European integration undertaken with the establishment of the European Communities; (...) Confirming their attachment to the principles of liberty, democracy and respect for human rights and fundamental freedoms and of the rule of law; (...) Resolved to establish a citizenship common to nationals of their countries (...)".
220
221

QUADROS, Fausto de, Direito da Unio Europeia, Coimbra, ed. Almedina, 2004, p. 45: () We may resume the novelties of the TEU as the following: the Treaty foreseen the conclusion of Economic and Monetary Union for 1999-2002; the integration features established until then mainly on article 2 of the EEC Treaty would no longer be essentially economical but should also extend to the social and cultural domains, as can be ascertained in the articles 2 and 3 of the EC as modified by the Maastricht Treaty (hence the dropping of the adjective "economic" from the former European Economic Community); "Union citizenship" was then created (Part II of the EC Treaty); a Common Security and Foreign Policy (CSFP) was instituted, notwithstanding its intergovernmental character, but already anticipating the future implementation of a common defense policy (Title V of the TEU); a mechanism of intergovernmental cooperation in matters of justice and home affairs, the JHA (Title VI of TEU), was also established; integration was deepened in the decision-making procedures of the Community (the so-called institutional reform of the Communities), attributing to the European Parliament co-decision powers in relation to the Council and the power to appoint the Commission as well as extending the rule of majority voting to the Council in detriment of the rule of unanimity. The Treaty of Maastricht was adopted on the 1st of November of 1993." 222 See Article A of the TEU. The term "European Union" had been used before in other documents, such as the Fouchet Project, The Solemn Declaration of Stuttgart, the Single European Act and other reports concerning Political Union. 223 The community pillar comprises three communities (ECSC, AEEC and EEC), its adhesion Treaties, its reforms and derived legislation. 224 PIARRA, Nuno, O espao de liberdade, segurana e justia aps a assinatura do Tratado que estabelece uma Constituio para a Europa: Balano e perspectivas, in Polcia e Justia, III Srie, January June, n 5, 2005, p. 23-24: "(...) the community method, that is, to develop through the control and the decision-making procedures that are embodied in the TEU, in which the Council, the Commission, the European Parliament (procedure of consultation and co-decision) and the European Court of Justice participate. This participation takes the form of diverse juridical acts that are typified in the Treaty (rules,

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European Scientific Journal article J to J11)225; and c) cooperation in the fields of justice and home affairs - JHA (third Pillar Title VI - article K226 to K9). With regard to the last two pillars, Member-States can cooperate more closely227 notwithstanding the fact that they are subjected to the rule of unanimity and to the "intergovernmental method." In this part of this paper we shall abstain from further considering the Maastricht Treaty228. However, it should be mentioned that, with this Treaty, concerns pertaining to justice and home affairs (article K1) were henceforth considered matters of common interest to the Member-States.

directives) that are endowed with their own juridical efficacy (direct applicability, direct effect). The material elements of the space of freedom, security and justice that fall under the "community method" were summarized in Title IV of Part III of the TEC and are enumerated in article 61: 1) free circulation of persons as they pass in the internal borders without controls of Member-States concomitantly with related follow-up measures on control in external borders, asylum and immigration; 2) other measures in matters of asylum, immigration and protection of the rights of nationals of third countries not directly related to the right of free circulation as it is conceived above; 3) measures in the domain of judicial cooperation in civil matters; 4) measures intended to promote and reinforce administrative cooperation in those fields between the pertinent services of the Member-States and between these services and the Commission. Underlying the decision to opt for the community method were reasons of efficiency. 225 BUSTAMANTE, Rogelio Prez, COLSA, Juan Manuel Uruburu, Histria da Unio Europeia, Coimbra, ed. Coimbra Editora, 2004, p. 178: (...) The Common Foreign and Security Policy (CFSP) represents a continuation of the provisions of article 30 of Title III of the SEA, where the "Treaty Provisions on European Co-operation in the Sphere of Foreign Policy" are expressed; indeed, both in the SEA and in the TEU, the CFSP is defined, as the corresponding title attests, as a domain of cooperation regulated by the Member-States and, therefore, not submitted to the habitual community procedures, remaining outside the juridical competence of the European Court of Justice - Title VII, article L." 226 See article K.1, Title VI (Provisions on Cooperation in the fields of Justice and Home Affairs) "For the purposes of achieving the objectives of the Union, in particular the free movement of persons, and without prejudice to the powers of the European Community, Member States shall regard the following areas as matters of common interest: 1.asylum policy; 2. rules governing the crossing by persons of the external borders of the Member States and the exercise of controls thereon; 3. immigration policy and policy regarding nationals of third countries: (a) conditions of entry and movement by nationals of third countries on the territory of Member States; (b) conditions of residence by nationals of third countries on the territory of Member States, including family reunion and access to employment; (c) combating unauthorized immigration, residence and work by nationals of third countries on the territory of Member States; 4. combating drug addiction in so far as this is not covered by 7 to 9; 5. combating fraud on an international scale in so far as this is not covered by 7 to 9; 6. judicial cooperation in civil matters; 7. judicial cooperation in criminal matters; 8. customs cooperation; 9. police cooperation for the purposes of preventing and combating terrorism, unlawful drug trafficking and other serious forms of international crime, including if necessary certain aspects of customs cooperation, in connection with the organization of a Union-wide system for exchanging information within a European Police Office (Europol)." 227 See Joint Action 98/428/JAI, of the 29th of June of 1998 (DOUE L 191 of 7th of July of 1998), that established the European Judicial Network for criminal cooperation, enabling the magistrates of Member-States to organize themselves for the first time. 228 PRADO, Pilar Mellado, El funcionamiento de las Instituciones en el espacio de libertad, seguridad y justicia, in Revista de Derecho de la Unin Europea, n 10-1st semestre, Madrid, ed. COLEX, 2006, p.36: "However, the institutional design of Cooperation in the fields of Justice and Home Affairs that the Treaty of Maastricht brought into place was insufficient, rather rigid and ineffective for several reasons: a) the juridical debility of its two main mechanisms (the joint positions and actions) (...); b) The slow implementation of the convention (Europol was created in 1995 but it only came into place on the 1 st of October of 1998 and was only effectively implemented on the 1st of July of 1999); c) The growing utilization - as a consequence of the aforementioned - of mechanisms of implementation different from those foreseen in the Treaty and consequently lacking a proper juridical basis (Resolutions, Recommendations...); d) For the limited role attributed to the genuinely communitarian institutions, that is, the Commission, the European Parliament and the European Court of Justice; e) The demand of unanimity as a voting rule in the Council of Europe, responsible for the frequent paralysis of the decision-making process."

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European Scientific Journal From Amsterdam to Nice On the 2nd of October of 1997 the Treaty of Amsterdam was signed229, conferring a revolutionary230 impetus to the subject that we are addressing: Resolved to facilitate the free movement of persons, while ensuring the safety and security of their peoples, by establishing an area of freedom, security and justice, in accordance with the provisions of this Treaty; (...) This Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe(...)"231 The High Contracting Parties decided to: a) "communitarianise"232; b) incorporate the "Schengen Acquis"233; c) set out as a primordial objective of the European Union the
229

The Treaty of Amsterdam reviewed for the third time the Treaty of Rome and was signed by fifteen Member-States (Germany, Belgium, France, Italy, Luxembourg, Holland (1951), Denmark, Ireland, United Kingdom (1973), Greece (1981), Spain, Portugal (1986), Austria, Finland and Sweden (1995) and came into place on the 1 st of May of 1999). This is the result of the Intergovernmental Conference/European Council of Turin (29 th of March of 1996), as well as the European Council of Amsterdam (16-17th June of 1997). 230 See Treaty of Amsterdam, Lisboa, ed. Assembleia da Repblica, 1998, article 2: "The Union shall set itself the following objectives: (...) the creation of an area without internal frontiers, through the strengthening of economic and social cohesion and through the establishment of economic and monetary union (...); to assert its identity on the international scene, in particular through the implementation of a common foreign and security policy including the progressive framing of a common defence policy, which might lead to a common defense (...); to maintain and develop the Union as an area of freedom, security and justice, in which the free movement of persons is assured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime (...); to maintain in full the acquis communautaire and build on it (...)"
231 232

See Preamble of Treaty of Amsterdam, id., p.17-18 PRADO, op. cit., p. 37: "(...) The Treaty of Amsterdam of 1997 aimed to correct the deficiencies of the system that was institutionalized at Maastricht in 1992, incorporating a new Title in Part III of the Treaty (Community Policies) concerning those aspects that had to do with the free circulation of persons within the European Union. This new Title was formulated with the objective of "communitarising" everything that is related to the free circulation of persons in the internal market, which meant not only the adoption of measures directly linked to the free circulation (intersection of internal and external borders by citizens of the Union and of third countries), but also the adoption of measures indirectly linked to the same objective, such as the establishment of a common regime for alien condition, sojourn and residence as well as judicial cooperation in civil and administrative matters. (...) The Treaty of Amsterdam reformulated the third pillar of the European Union gradually dissociating it from the CFSP without, however, losing its intergovernmental nature. This pillar was reduced to the police and judicial cooperation in the criminal field. In addition, the Treaty of Amsterdam expressly foresees (article 42 of EUT) the passing of a clause that allows for the possibility of the Council, by unanimous vote and at the initiative of the Commission or of a MemberState, with the previous consultation of the European Parliament, decides to include judicial and police cooperation in criminal matters in Title IV of the EUT. It is a act in which the institutions of the Union and those of the Member-States can participate, in conformity with their respective constitutional norms." Here we can discern a "communitarian fissure" given that the United Kingdom, Ireland and Denmark have taken their own positions on this matter. See Protocols annexed to the Treaty of Amsterdam. 233 See Treaty of Amsterdam, op.cit., p. 308-309: "Protocol integrating the Schengen acquis into the framework of the European Union; "The High Contracting Parties: Noting that the Agreements on the gradual abolition of checks at common borders signed by some Member States of the European Union in Schengen on 14 June 1985 and on 19 June 1990, as well as related agreements and the rules adopted on the basis of these agreements, are aimed at enhancing European integration and, in particular, at enabling the European Union to develop more rapidly into an area of freedom, security and justice; Desiring to incorporate the abovementioned agreements and rules into the framework of the European Union; (...) Article 1 "The Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the French Republic, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Republic of Austria, the Portuguese Republic, the Republic of Finland and the Kingdom of Sweden, signatories to the Schengen agreements, are

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European Scientific Journal creation of a Space of Freedom, Security and Justice (SFSJ)234. In this manner, European policies in matters pertaining to justice and home affairs (JHA) were divided between the first and third pillars, with different rules concerning the legislation approving methods, the legislative and non-legislative acts235, and the jurisdiction of the Court of Justice. On the 15th and 16th of June of 1998, (the) Cardiff European Council called on the Council and the Commission to submit at its meeting in Vienna an action plan [the so-called Vienna Action Plan]236 on defining how best to implement the provisions of the Treaty of Amsterdam on an area of freedom, security and justice.237. Vienna's action plan was notorious for having defined elementary concepts such as: "space of freedom"238, "space of security"239 and "space of justice"240 as well as for considering that "(...) These three notions are closely interlinked. Freedom loses much of its meaning if it cannot be enjoyed in a secure environment and with the full backing of a system
authorized to establish closer cooperation among themselves within the scope of those agreements and related provisions, as they are listed in the Annex to this Protocol, hereinafter referred to as the Schengen acquis (consists of) 1. The Agreement, signed in Schengen on 14 June 1985, between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders. 2. The Convention, signed in Schengen on 19 June 1990, between the Kingdom of Belgium, the Federal Republic of Germany, the French Republic, the Grand Duchy of Luxembourg and the Kingdom of the Netherlands, implementing the Agreement on the gradual abolition of checks at their common borders, signed in Schengen on 14 June 1985, with related Final Act and common declarations. 3. The Accession Protocols and Agreements to the 1985 Agreement and the 1990 Implementation Convention with Italy (signed in Paris on 27 November 1990), Spain and Portugal (signed in Bonn on 25 June 1991), Greece (signed in Madrid on 6 November 1992), Austria (signed in Brussels on 28 April 1995) and Denmark, Finland and Sweden (signed in Luxembourg on 19 December 1996), with related Final Acts and declarations. 4. Decisions and declarations adopted by the Executive Committee established by the 1990 Implementation Convention, as well as acts adopted for the implementation of the Convention by the organs upon which the Executive Committee has conferred decision making powers." This cooperation shall take place in the institutional and judicial framework of the European Union and in strict observance of the pertinent provisions of the Treaty on the European Union and of the Treaty that institutes the European Community.
234

See EC Treaty, Title IV - "Visas, asylum, immigration and other policies related to the free movement of persons, article 73-I to 73-P. 235 MARTN, Araceli Mangas, NOGUERAS, Diogo J. Lin, Instituciones y Derecho de la Unin Europea, Madrid, 5 Ed. Tecnos, 2005, p. 743: " [It should be emphasized that only the] Constitutional Treaty (TEU) considers the unification of the acts, distinguishing between legislative and non-legislative acts. This presupposes an important advance with regard to their efficacy and their political and jurisdictional control. In this manner, the number of juridical acts that can be adapted into laws, regulations, decisions, recommendations and directives have been reduced and acts with atypical legislative contents (article I-33 TEU) have been proscribed, which implies the reinforcement of juridical security. Such an option is of particular relevance given that it concerns the disappearance of specific acts on criminal judicial and police cooperation." 236 The text of this Plan was approved on the 3th of December of 1998 by the Council of Justice and Home Affairs. 237 See Official Journal n C019 of 23/01/1999 p.0001-0015, Part I, point 1. 238 Id., point 6: "However, the Treaty of Amsterdam also opens the way to giving freedom' a meaning beyond free movement of people across internal borders. It is also freedom to live in a law abiding environment in the knowledge that public authorities are using everything in their individual and collective power (nationally, at the level of the Union and beyond) to combat and contain those who seek to deny or abuse that freedom. Freedom must also be complemented by the full range of fundamental human rights, including protection from any form of discrimination as foreseen by Articles 12 and 13 of TEC and 6 of the TEU. 239 Id., point 9: "(...) The full benefits of any area of freedom will never be enjoyed unless they are exercised in an area where people can feel safe and secure." 240 Id., point 15: "(...) The ambition is to give citizens a common sense of justice throughout the Union. Justice must be seen as facilitating the day to day life of people and bringing to justice those who threaten the freedom and security of individuals and society. This includes both access to justice and full judicial cooperation among Member States. What Amsterdam provides is a conceptual and institutional framework to make sure that those values are defended throughout the Union."

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European Scientific Journal of justice in which all Union citizens and residents can have confidence. These three inseparable concepts have one common denominator people and one cannot be achieved in full without the other two. Maintaining the right balance between them must be the guiding thread for Union action.241 In 1998, the Heads of State and Government met in Portschach (Austria)242 and reiterated the importance of the topic "Space of Freedom, Security and Justice" and agreed to participate in an extraordinary European Council at Tampere243. In 1999, the European Council of Tampere (Finland) outlined a certain number of political guidelines and priorities244, the so-called "Tampere Milestones"245, so as to insure the materialization of the Space of Freedom, Security and Justice in the European Union by 2004. On the 26th of February of 2001 the fourth revision of the Treaty of Rome was undertaken with the signing of the Treaty of Nice246. In effect, "(the) intergovernmental conference that led to the adoption of the Treaty of Nice had the least ambitious political agenda of all the founding events of the Union. In truth, the realization of the intergovernmental conference had as an objective to
241 242

Id., point 5. This informal meeting took place on the 24 and 25th of October of 1998. 243 See Conclusions of the Presidency of the European Council of Tampere of the 15 and 16th of October of 1999. 244 Id., "Towards a Union of Freedom, Security and Justice: The Tampere Milestones."A Common EU Asylum and Migration Policy; I. Partnership with countries of origin; II.A Common European Asylum System; III. Fair treatment of third country nationals; IV. Management of migration flows; B. A Genuine European Area of Justice; V. Better access to justice in Europe; VI. Mutual recognition of judicial decisions; VII. Greater convergence in civil law; C. A Union-wide fight against crime; VIII. Preventing crime at the level of the Union; IX. Stepping up co-operation against crime; X. Special action against money laundering; D. Stronger External Action." 245 ALMEIDA, Maria Cndida, A Cooperao policial na luta contra o terrorismo e o crime organizado, in Europa Novas Fronteiras, n 16/17 Espao de Liberdade, Segurana e Justia, Lisboa, ed. Centro de Informao Europeia Jacques Delors, 2005, p. 216 219. Some priorities of Tampere: "a) adoption of minimum standards on the protection of victims; b) the mutual recognition of judicial decisions; c) establishment of a European Police Chiefs operational Task Force to exchange experiences and information; d) establishment of joint investigative teams; e) creation of a unit of judicial cooperation in criminal matters or Eurojust; f) reinforcement of Europol; g) establishment of a European Police College; 2-Adopted Measures: "a) effective establishment of the Eurojust (Council Decision of the 28th February of 2002 (OJ L063 6.3.2002); b) reinforcement of the European Judicial Network; c) Convention on Mutual Legal Assistance in Criminal Matters between the Member-States of May 2000; d) decision on joint investigative teams (Council Framework Decision of the 13 th June of 2002 (OJ L162, 20.6.2002); e) the adoption of legislative measures (common definitions and sanctions) relating to certain legal transgressions; f) adoption of a programme of measures founded on the principle of mutual recognition (Council Framework Decision of the 13 th of June of 2002 on the European Arrest Warrant and the surrender procedures between Member-States (OJ L190 18.7.2002); g) Council Framework Decision against terrorism of the 13 th of June of 2002 (OJ L164 22.6.2002); h) Council Framework Decision 2003/57777 JAI of the 22nd of July of 2003 on the execution in the European Union of orders freezing property or evidence (OJ L196 2.8.2003); i) Charter of Fundamental Rights of the European Union; j) Convention on the protection of the European Communities financial interest; l) Convention on extradition between Member-States of the European Union; m) Convention against corruption involving officials of the European Communities or officials of Member-States of the European Union; n) Framework Decision on the status of the victim in the criminal process; o) Council Framework Decision of the 26 th of June of 2001 relating to money laundering, identification, tracing, freezing or seizing and confiscation of the instrumentalities and proceeds from crime; p) Joint action of the 21st of December of 1998, adopted by the Council relating to the incrimination of participation in a criminal organization in the Member-States of the European Union; r) Council Resolution of the 23 rd of November of 1995 relating to the protection of witnesses in the scope of the fight against international organized crime; s) Council Resolution of the 20th of December of 1995 relating to the persons who collaborated with the justice system against international organized crime.
246

This treaty entered into force on the 1st of February of 2003. Published on the OJ C 80 of 10.03.2001.

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European Scientific Journal deal with issues that the Member-States were nor capable of resolving at the time of the conclusion of the Treaty of Amsterdam but which they identified as questions that would be pertinent to the institutional transformations that were required for the enlargement of the European Union. The so-called "Amsterdam Leftovers" (...). In practice, [Nice prepared the European Union, at the institutional level, for future enlargement]247. However, in what concerns our theme of study, the Treaty of Nice "(...) introduced a single248 novelty in the domain of intergovernmental cooperation in criminal matters: the so-called Judicial Cooperation Unit (EUROJUST)249. Established in 2002250 and composed at the present time of 25 members - one per each Member-State - appointed from a pool of notable judges and inspectors, EUROJUST's primordial function is to contribute to the greater co-ordination of the competent national authorities of the Member-States in the investigation and prosecution of serious cross-border crimes. Headquartered in The Hague, EUROJUST works closely with EUROPOL (European Police Office) and with OLAF (European Anti-Fraud Office)251 and with the European Judicial Network."252 Four months later, in June of 2002, the European Arrest Warrant253, a corollary of EUROJUST, was established with the aim of "(...) ending the slow process of extradition254 in all
247 248

SOARES, Antnio Goucha, A Unio Europeia, Coimbra, ed. Almedina, 2006, pp. 43 and 44. In addition, the matters relating to judicial cooperation in civil matters (article 65 of TEC) are now decided by qualified majority, except on matters concerning family law. 249 MOTA, Jos Lus Lopes da, As dimenses institucionais da cooperao judiciria em matria criminal na Unio Europeia: a Eurojust e os seus parceiros europeus, in Revista Europa Novas Fronteiras, n 16/17, Lisboa, ed. Centro de Informao Europeia Jacques Delors, 2005, p. 168: () The inclusion of Eurojust in the Treaty on European Union, through the Treaty of Nice, placed judicial cooperation at the institutional level of police cooperation and established the juridical basis that insure a balanced and consistent approach to judicial and police cooperation. Eurojust thus emerged as the judicial partner of Europol in the sense that the activities of the latter need to be supported and complemented by coordination between judicial authorities (...). The competencies of Eurojust were based on the competencies of Europol (article 4 of the Eurojust Decision). The competencies of Eurojust encompass the types of crime included in the competencies of Europol, as stated in article 2 of the Europol Convention, a particularly significant fact. Acting at several levels - police and judicial cooperation - Europol and Eurojust should pursue a common objective: to fight against trans-national organized crime." 250 Created by Council Decision 2002/187/JHA of 28th February of 2002 (OJ L063, 22nd November of 2002) and modified by Council Decision 2003/659/JHA of 18th June of 2003 (OJ L245 of 29th September of 2003) (Council decision of the 28th of February of 2002 setting up Eurojust with a view to reinforcing the fight against serious crime [OJ L063, 6.3.2002]). 251 Created by Council Decision 1999/352/EC of the Commission of 28 th of April of 1999 (OJ L163, of the 31st of May of 1999). 252 Prado, op.cit., p.36 253 Council Framework Decision 2002/548/JHA, of the 13th June of 2002 relating to the European Arrest Warrant and the surrender procedures between Member States (OJ L 190, 18th July of 2002) Spain, France, Germany, the United Kingdom, Portugal, Belgium and Luxembourg decided to institute the European Arrest Warrant in 2003. However, this entered into force in all of the Member-States of the European Union on the 1st of January of 2004. It substituted the: a) European Convention on Extradition of 1957; b) The European Convention on the Suppression of Terrorism of 1978; c) Agreement on Simplification of Transmission of Extradition Requests; d) Convention on Simplified Extradition Procedures of 1995; e) Convention on Extradition of 1996; and f) Provisions on the Schengen Agreement that relate to these matters. 254 See Council Framework decision of the 13th of June on the European Arrest Warrant and the surrender procedures between Member States (2002/584/JHA), p.5 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L 2002: 190:0001:0018:EN:PDF: "(...) The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new

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European Scientific Journal serious crimes such as terrorism, drug-trafficking and organized crime. For these reasons, this European Arrest Warrant system for searching, capturing, detaining255 and judging terrorists and delinquents of the Member-States was established. This European Arrest Warrant (EAW) presupposes a new framework for judicial co-operation between the Member-States so as to end trans-national crimes. Initially only terrorism, organized crime, drug-trafficking, traffic of human beings, sexual abuse of minors and illegal arms trafficking were considered in this measure. Yet, finally, now there are thirty-two crimes256 that fall within the scope of the EAW."257 In 2004, the European Council of Brussels258, impelled by preceding juridical mechanisms, by the need to re-evaluate the five years that had passed since the European Council of Tampere
simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional cooperation relations which have prevailed up till now between Member States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of freedom, security and justice."
255

Id., Council Framework Decision, General Principles - Article 1 Definition of the European arrest warrant and obligation to execute it; 1. The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order. 2. Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision. 3. This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union." 256 Id., The following crimes: "1) participation in a criminal organization; 2) terrorism; 3) trafficking in human beings;4) sexual exploitation of children and child pornography; 5) illicit trafficking in narcotic drugs and psychotropic substances;6) illicit trafficking in weapons, munitions and explosives; 7) corruption; 8) fraud, including that affecting the financial interests of the European Communities within the meaning of the Convention of 26 July 1995 on the protection of the European Communities' financial interests; 9) laundering of the proceeds of crime, 10) counterfeiting currency, including of the euro; 11) computer-related crime; 12) environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties; 13) facilitation of unauthorized entry and residence; 14) murder, grievous bodily injury; 15 illicit trade in human organs and tissue; 16) kidnapping, illegal restraint and hostage-taking; 17) racism and xenophobia; 18) organized or armed robbery; 19) illicit trafficking in cultural goods, including antiques and works of art; 20) swindling; 21) racketeering and extortion, 22) counterfeiting and piracy of products; 23) forgery of administrative documents and trafficking therein; 24) forgery of means of payment; 25) illicit trafficking in hormonal substances and other growth promoters; 26) illicit trafficking in nuclear or radioactive materials; 27) trafficking in stolen vehicles; 28) rape; 29) arson; 30) crimes within the jurisdiction of the International Criminal Court; 31) unlawful seizure of aircraft/ships; 32) sabotage."
257 258

See http://www.abc.es/especiales/index.asp?cid=275. See Presidency Conclusions of the European Council of Brussels, 4-5 November of 2004 in http://ue.eu.int/ueDocs/cms_Data/docs/pressData/pt/ec/82547.pdf: II: Area of Freedom, Security and Justice. 14. The security of the European Union and its Member States has acquired a new urgency, especially in the light of the terrorist attacks in the United States on 11 September 2001 and in Madrid on 11 March 2004. The citizens of Europe rightly expect the European Union, while guaranteeing respect for fundamental freedoms and rights, to take a more effective, joint approach to cross-border problems such as illegal migration, trafficking in and smuggling of human beings, terrorism and organized crime (...) 15.(...) It reflects the ambitions as expressed in the Treaty establishing a Constitution for Europe (...) 16 The Hague Programme deals with all aspects of policies relating to the area of freedom, security and justice, including their external dimension, notably fundamental rights and citizenship, asylum and migration, border management, integration, the fight against terrorism and organized crime, justice and police cooperation, and civil law, while a drugs strategy will be added in December 2004. In conjunction, the European Council considers that creating appropriate European legal instruments and strengthening practical and operational cooperation between relevant national agencies, as well as timely implementation of agreed measures, are of vital importance."

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European Scientific Journal and by the tragic events of 9/11 (US) and 11/3 (Spain), approved The Hague Programme259. This programme particularly emphasises security concerns as well as immigration questions: "(...) The citizens of Europe rightly expect the European Union, while guaranteeing respect for fundamental freedoms and rights, to take a more effective, joint approach to cross-border problems such as illegal migration, trafficking in and smuggling of human beings, terrorism and organized crime, as well as the prevention thereof. Notably in the field of security260, the coordination and coherence between the internal and the external dimension has been growing in importance and needs to continue to be vigorously pursued.261 In addition, it had as its benchmark the level of ambition of the treaty that established a Constitution for Europe; consequently, it helped the Union to prepare itself for its coming into place262.

259

The Hague Programme "Strengthening Freedom, Security and Justice in the European Union" Annex I to the Presidency Conclusions of the European Council of Brussels of the 4 th and 5th of November 2004: "(...) Over the past years the European Union has increased its role in securing police, customs and judicial cooperation and in developing a coordinated policy with regard to asylum, immigration and external border controls. This development will continue with the firmer establishment of a common area of freedom, security and justice by the Treaty establishing a Constitution for Europe, signed in Rome on 29 October 2004. This Treaty and the preceding Treaties of Maastricht, Amsterdam and Nice have progressively brought about a common legal framework in the field of justice and home affairs, and the integration of this policy area with other policy areas of the Union. Since the Tampere European Council in 1999, the Union's policy in the area of justice and home affairs has been developed in the framework of a general programme. Even if not all of the original aims were achieved, comprehensive and coordinated progress has been made. The European Council welcomes the results that have been achieved in the first five-year period: the foundations for a common asylum and immigration policy have been laid, the harmonization of border controls has been prepared, police cooperation has been improved, and the groundwork for judicial cooperation on the basis of the principle of mutual recognition of judicial decisions and judgements has advanced." The Hague Programme foresees the possibility of its revision on the 1st of November 2006, the date in which the Constitutional Treaty comes into force; (Revision 4) "Since the programme will run for a period during which the Constitutional Treaty will enter into force, a review of its implementation is considered to be useful. To that end, the Commission is invited to report by the entry into force of the Constitutional Treaty (1 November 2006) to the European Council on the progress made and to propose the necessary additions to the programme, taking into account the changing legal basis as a consequence of its entry into force." 260 We should not forget the terrorist attack in London on the 7 th of July of 2005. 261 Ibid., See Annex I of The Hague Programme: "(...) The objective of the Hague programme is to improve the common capability of the Union and its Member States to guarantee fundamental rights, minimum procedural safeguards and access to justice, to provide protection in accordance with the Geneva Convention on Refugees and other international treaties to persons in need, to regulate migration flows and to control the external borders of the Union, to fight organized cross-border crime and repress the threat of terrorism, to realize the potential of Europol and Eurojust, to carry further the mutual recognition of judicial decisions and certificates both in civil and in criminal matters, and to eliminate legal and judicial obstacles in litigation in civil and family matters with cross-border implications. This is an objective that has to be achieved in the interests of our citizens by the development of a Common Asylum System and by improving access to the courts, practical police and judicial cooperation, the approximation of laws and the development of common policies."
262

The "Constitutional Treaty" and/or The Treaty establishing a Constitution for Europe", should have come into force until the 1st of November of 2006. However, as it is well-known, this Treaty had to be ratified by all Member-States. Given that two Member-States (France on the 29th of May of 2006) and the Netherlands (on the 1st of June of 2006) voted no in the referendum, this Treaty will not come into force despite the fact that fifteen Member-States have already ratified it (Germany, Austria, Belgium, Cyprus, Estonia, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta, Slovakia, Slovenia and Spain).

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European Scientific Journal The "European Constitution" and the Area for Freedom, Security and Justice On the 20th of June of 2003, at the European Council of Salonika263, the Draft Treaty establishing a Constitution for Europe was presented. On the 29th of October 2004, in Rome, the Treaty establishing a Constitution for Europe264 was signed (henceforth designated as Constitutional Treaty or CT). It should be emphasised that the CT is not a revision of the Treaty of Rome, nor a revision of any other treaty. It is an autonomous treaty, conceived ab inicio to be applied in Europe265. However, it has not been adopted yet for it still has to be ratified, with or without referendum, by the Member-States266. This document follows the logic of deepening that had been developed in previous treaties (Maastricht, Amsterdam and Nice), establishing, in this manner, a common juridical framework in the domain of justice and home affairs, with a view to insuring the security of the communities, mutual trust and the primacy of the rule of law throughout the Union. In our view, the most significant aspects of the CT were, unquestionably,
263

See Preface of the Draft Treaty establishing a Constitution for Europe, Luxembourg, European Union Official Publications, 2003: "Noting that the European Union was coming to a turning point in its existence, the European Council which met in Laeken, Belgium, on 14 and 15 December 2001 convened the European Convention on the Future of Europe. [For a second time in the history of Europe, Europeans are called upon to decide on their future. The first time was at the Hague Congress in 1947] (...) The Convention was asked to draw up proposals on three subjects: how to bring citizens closer to the European design and European Institutions; how to organize politics and the European political area in an enlarged Union; and how to develop the Union into a stabilizing factor and a model in the new world order.(...) The Laeken declaration also asked whether the simplification and reorganization of the Treaties should not pave the way for the adoption of a constitutional text. The Convention's proceedings ultimately led to the drawing up of a draft Treaty establishing a Constitution for Europe, which achieved a broad consensus at the plenary session on 13 June 2003." This was the text presented at the European Council of Salonika. 264 Preamble of the Treaty establishing a Constitution for Europe, Luxembourg, European Union Official Publications, 2005, p.10: Drawing inspiration from the cultural, religious and humanist inheritance of Europe, from which have developed the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law; Believing that Europe, reunited after bitter experiences, intends to continue along the path of civilization, progress and prosperity, for the good of all its inhabitants, including the weakest and most deprived; that it wishes to remain a continent open to culture, learning and social progress; and that it wishes to deepen the democratic and transparent nature of its public life, and to strive for peace, justice and solidarity throughout the world; Convinced that, while remaining proud of their own national identities and history, the peoples of Europe are determined to transcend their former divisions and, united ever more closely, to forge a common destiny; Convinced that, thus United in diversity, Europe offers them the best chance of pursuing, with due regard for the rights of each individual and in awareness of their responsibilities towards future generations and the Earth, the great venture which makes of it a special area of human hope; Determined to continue the work accomplished within the framework of the Treaties establishing the European Communities and the Treaty on European Union, by ensuring the continuity of the Community acquis; Grateful to the members of the European Convention for having prepared the draft of this Constitution on behalf of the citizens and States of Europe. 265 It should be emphasised that the Constitutional Treaty incorporates only one of the European Communities established by the Treaty of Rome (EEC/EC/EU), given that the European Atomic Energy Community (Euratom) is still in force (see 36. Protocol amending the Treaty establishing the European Atomic Energy Community, annexed to the Treaty Establishing a Constitution for Europe) and that the European Coal and Steel Community ceased in 2001.
266

It was expected that the Constitutional Treaty would come into force in 2007. However, for that to happen it was necessary that all Member-States ratified it. Until the present time only fifteen Member-States have ratified it (Germany, Austria, Belgium, Cyprus, Estonia, Greece, Hungary, Latvia, Lithuania, Luxembourg, Malta, Slovakia, Slovenia, and Spain) and two MemberStates (France on the 29th of May of 2006) and the Netherlands (on the 1 st of June of 2006) voted no in the referendum.

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European Scientific Journal the: a) the inclusion in the Constitution of the Charter of Fundamental Rights of the European Union267. It is based on these principles268, which emanate from the different legal systems and juridical traditions of the Member-States, that the European Union constitutes an area of freedom, security and justice. We should not forget that the Charter of Fundamental Rights has a specific Title addressing freedoms (Part II, Title II, article II-66 to article II-79) and another for justice (Part II, Title VI, article II-107 to article II-110). Security is inextricably linked to freedom, "Everyone has the right to freedom and security of person"269; b) the Union ratified the European Convention on the Protection of Human Rights and Fundamental Freedoms270 (n 2 of article I.9, Title II, Part I). We should mention, in this ambit, that the previous European Treaties proclaimed, in equal manner, respect for this convention although they never adopted it because it lacked legitimacy; c) the inclusion of the "flexibility clause" was, without a doubt, the lever that the European Union required to autonomously foment new policies, "(if) action by the Union should prove necessary, within the framework of the policies defined in Part III, to attain one of the objectives set out in the Constitution, and the Constitution has not provided the necessary powers, the Council of Ministers, acting unanimously on a proposal from the European Commission and after obtaining the consent of the European Parliament, shall adopt the appropriate measures"271; d) the creation of an Union Minister for Foreign Affairs272 is, from our point of view, a decisive and fundamental step in the affirmation of the European Union in the International Community (in spite of the fact that this position is not yet institutionalized in the European Union, given the fact that one of the Vice-Presidents of the Commission is appointed to exercise this role). However, the competencies that are entrusted to this position (insuring the coherence of the external actions of the Union and implementing the Common Security and Foreign Policy of the Union273) are of central importance to a supra-national power that seeks international recognition; e) the amplitude afforded by the concept of "variable

267

See Part I, Article I-2 (The Union's Values); Article I-9 (Fundamental Rights); and Part II (Charter of the Fundamental Rights of the Union) Article II-61 to article II-114. 268 See n 1 of article III-257. 269 See Article II-66 (Right to Freedom and Security) 270 See Protocol (A) n 32 - Protocol n 2 of article I-9 of the Constitution on the accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms. 271 See n 1 of article I-18. 272 ROQUE, Miguel Prata, O Ministro dos Negcios Estrangeiros da Unio na Constituio Europeia A Caminho de uma Poltica Externa Europeia?, Coimbra, ed. Almedina, 2005, p. 11: "Apparently, the institutionalization of a Minister for Foreign Affairs by the European Constitution is a significant step forward of the Laws of the European Union about one of the last bastions of the national sovereignty of Member-States: Foreign Policy (one of the quintessential domains of state sovereignty)." 273 See article I.28 (The Union Minister for Foreign Affairs)

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European Scientific Journal geometry"274 and/or "reinforced cooperation" in the midst of the European Union275 is a symbol of the continuity of policies that were sought in previous Treaties. Not all provisions of the CT are applicable to all Member-States uniformly, some are still under regimes of exception, such as the United Kingdom, Ireland and Denmark276. In this context, we should mention the Protocol (17) on the Schengen Acquis integrated into the framework of the European Union: "Desiring to preserve the Schengen Acquis, as developed since the entry into force of the abovementioned Protocol, within the framework of the Constitution, and to develop this acquis in order to contribute towards achieving the objective of offering citizens of the Union an area of freedom, security and justice without internal borders; Taking into account the special position of Denmark; Taking into account the fact that Ireland and the United Kingdom of Great Britain and Northern Ireland do not participate in all the provisions of the Schengen acquis; Provision should, however, be made to allow those Member States to accept other provisions of this acquis in full or in part."277 We consider that this "clause of exception" is a sign of the vitality, trust and firmness of the values of the Union, united in and by diversity. The values of the European Union should be assimilated by the Member-States on their merit, efficacy and never by legislative imposition; f) the establishment of the European Council as an institution of the Union that confers the necessary impetus to its development and defines its guidelines and its general political priorities278. The European Council henceforth has a preponderant institutional role279 in the definition of legislative and operational strategic orientations in the area of freedom, security and justice280; g) the amends of the juridical acts of the Union, which henceforth has new juridical procedures for the exercise of its competencies; European Laws, European Framework Laws, European Regulations, European Decision, Recommendations and Opinions281. Our contention is that this legislative measure was merely cosmetic given that these juridical procedures have the same legislative amplitude as the preceding: regulations, directives, decisions, recommendations and opinions. Understandably, the relevant novelty was

274

See Protocols (A) n 8,9,13,14,17 to 20, 31, see Part I, Title V (Exercise of Union Competence), Chapter III (Enhanced Cooperation), article I-44 and Part III (The Policies and Functioning of the Union), Title IV (Functioning of the Union), Chapter III (Enhanced Cooperation), article III-416 to article III-423. 275 We should not forget that the Area of Freedom, Security and Justice integrates States that are not members of the European Union, such as Iceland, Norway and Switzerland, which however adopted the Schengen Acquis. 276 See Protocol (A), n8,9,13,14,15,17,18,19,20, 26 and 31. 277 See Preamble of Protocol (17) on the Schengen Acquis integrated into the framework of the European Union, in Treaty Establishing a Constitution for Europe, Luxembourg, European Union Official Publications, 2005, p.355. 278 See Part I, Title IV (The Union's Institutions and Bodies), Chapter I (The Institutional Framework), article I-19 (Union's Institutions), article I-21 (The European Council). 279 Indeed, the European Council had been assuming this roles in preceding European Councils. 280 See article III-258. 281 See definition of these acts in n 1 of article I-33 (The Legal Acts of the Union).

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European Scientific Journal its inclusion in the European Regulation282; h) the submission of justice and home affairs matters to qualified-majority voting in the Council, to co-decision with the European Parliament and to the jurisdiction of the Court of Justice, with the exclusion283 of some areas (family law) 284; (volume of admission of nationals from third states)285 and/or questions relating to (criminal and police cooperation)286; i) the suppression of the pillar-structure of the EU and/or the unification of the 1st (TEC) and 3rd (TEU) pillars of the European Union, turning the decision-making process more perceptible to the citizen and concomitantly more coherent and efficient, thus extending the "community method" to the Common Space of Freedom, Security and Justice (CSFSJ)287. In fact, this became one of the objectives of the Union, "[which shall provide] its citizens288 with a space of freedom, security [these being fundamental rights289, concomitantly with the right to circulate and to freely establish residence in the territories of the Member-States290], the right to

282

"A European regulation shall be a non-legislative act of general application for the implementation of legislative acts and of certain provisions of the Constitution. It may either be binding in its entirety and directly applicable in all Member States, or be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods." 283 See article III-377 (Specific Provisions Relating to Area of Freedom, Security and Justice) "In exercising its powers regarding the provisions of Sections 4 and 5 of Chapter IV of Title III relating to the area of freedom, security and justice, the Court of Justice of the European Union shall have no jurisdiction to review the validity or proportionality of operations carried out by the police or other law-enforcement services of a Member State or the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security." 284 See n3 of article III-269: "Notwithstanding paragraph 2, a European law or framework law of the Council shall establish measures concerning family law with cross-border implications. The Council shall act unanimously after consulting the European Parliament." 285 See n5 of article III-267. 286 See n3 of article I-42 (Specific Provisions Relating to the Area of Freedom, Security and Justice) " Member States shall have a right of initiative in the field of police and judicial cooperation in criminal matters, in accordance with article III-264; article III-262 "This Chapter shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security."
287

PANIAGUA, Enrique Linde, El significado del espacio de libertad, seguridad y justicia de la Unin en la Constitucin Europea, in Revista de Derecho de la Unin Europea, n 10-1 semestre, Madrid, ed. Colex, 2006, p19. Interestingly, this author argues that the precedents that inspired the formulation of the European Constitution, in particular the domain under consideration [area of freedom, security and justice] were the Portuguese and Spanish Constitutions, the only European constitutions that explicitly state the values that founded them. The characterization of justice, freedom and security as values to sincere constituents that know that their realization is an aspiration, an utopia, that should guide public policies. (...) The European constituents has perplexingly forgotten that the central aspects of freedom, security and justice are expressed in the Union Charter of Fundamental Rights (...) Title II addresses freedoms, Title III deals with equality and Title IV considers justice (...). However, what differentiates the constitutional text of the Union from the Portuguese and Spanish Constitutions and from the other European constitutions is that the European Constitution dedicates Chapter IV (Title III of Part III) exclusively to the "Area of Freedom, Security and Justice (...)." 288 See Part I, Title I, Chapter 2, n 1 and paragraph a) of article I-10 of The Treaty Establishing a Constitution for Europe "1. Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to national citizenship and shall not replace it [this aspect remained unchanged in the Treaty of Amsterdam]. 2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Constitution. They shall have: (a) the right to move and reside freely within the territory of the Member States." 289 Id., Part II, Title II (Freedoms), article II-66 (Right to Liberty and Security). 290 Id., Part II, Title V, article II-105 (Freedom of Movement and of Residence).

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European Scientific Journal justice291 [292 [thus placing] the human being at the centre of its policies"293] without internal borders [since the Union insures the free circulation of persons/workers in its territory [article III133 to article III-136 of the CT], services [article III-144 to article III-150 of the CT], goods [article III-151 to article III-155 of the CT], and capital [article III-156 to article 160 of the CT], the freedom to establish residence [article III-137 to article III-143 of the CT]294, an internal market295 wherein competition is free and non-phased [article III-161 to article III-169]"296, even though this Common Space of Freedom, Security and Justice (SFSJ) is a domain of competencies shared297 with the Member-States298. In its very structure, the CT addresses the "Area of Freedom, Security and Justice" in Part I, Title V (Exercise of Union Competence), Chapter II (Specific Provisions), article I-42299
291

Ibid., despite the fact that the theme of justice is considered in Part II, Title VI, article II-107, of the Treaty Establishing a Constitution for Europe. We should note that we only have the right to undertake legal action and the right to an impartial court. 292 See Part I, Title I, Chapter II, article I-42 (Specific Provisions Relating to the Area of Freedom, Security and Justice): "1. The Union shall constitute an area of freedom, security and justice: (a) by adopting European laws and framework laws intended, where necessary, to approximate laws and regulations of the Member States in the areas referred to in Part III; (b) by promoting mutual confidence between the competent authorities of the Member States, in particular on the basis of mutual recognition of judicial and extrajudicial decisions; (c) by operational cooperation between the competent authorities of the Member States, including the police, customs and other services specializing in the prevention and detection of criminal offences. 2. National Parliaments may, within the framework of the area of freedom, security and justice, participate in the evaluation mechanisms provided for in Article III-260. They shall be involved in the political monitoring of Europol and the evaluation of Eurojust's activities in accordance with Articles III-276 and III-273." 293 Id., Part II, Preamble of the Union Charter of Fundamental Rights. 294 Id., Part I, Title I, n 1 of article I-4. 295 Id., Part III, Title III (Internal Policies and Action), Chapter I (Internal Market), Section I (Establishment and Functioning of the Internal Market), n2 of article III-130:"The internal market shall comprise an area without internal frontiers in which the free movement of persons, services, goods and capital is ensured in accordance with the Constitution." 296 MARTN, op. cit., p. 743: "Another particularity to consider is that the Constitutional Treaty maintains the normative initiative that was shared among Member-States (before the initiatives of a single Member-State) and will only comprise those acts foreseen in Sections 4 and 5 (Judicial Cooperation in Criminal Matters and Police Cooperation), as well as the European regulations of article III-263 that guarantees administrative cooperation in the scopes mentioned in these Sections." See also, Id., Part I, Title I, n2 or article I-3. 297 Id., Part I, Title I, paragraph j) of n 2 of article I-14. 298 Id., "The functioning of institutions in the area of freedom, security and justice", p.38: "(...) maybe it would be more accurate of speaking about concurrent competencies, in so far as the European Union and its Member-States exercise identical functional competencies in the same domains."; see also Carrillo, Lpez Marc, El espacio de Libertad, seguridad y justicia in E. Alberti, El proyecto de nueva Constitucin Europea. Balance de los trabajos de la Convencin sobre el futuro de Europa, Valncia, Tirant lo Blanch, 2004, p. 409-410. 299 1) The Union shall constitute an area of freedom, security and justice: (a) by adopting European laws and framework laws intended, where necessary, to approximate laws and regulations of the Member States in the areas referred to in Part III; (b) by promoting mutual confidence between the competent authorities of the Member States, in particular on the basis of mutual recognition of judicial and extrajudicial decisions; (c) by operational cooperation between the competent authorities of the Member States, including the police, customs and other services specializing in the prevention and detection of criminal offences. 2. National Parliaments may, within the framework of the area of freedom, security and justice, participate in the evaluation mechanisms provided for in Article III-260. They shall be involved in the political monitoring of Europol and the evaluation of Eurojust's activities in accordance with Articles III-276 and III-273. 3. Member States shall have a right of initiative in the field of police and judicial cooperation in criminal matters, in accordance with Article III-264.

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European Scientific Journal (Specific Provisions relating to the Area of Freedom, Security and Justice) and Part III (The Policies and Functioning of the Union), Title III (Internal Policies and Action), Chapter IV, which is subdivided into five sections: a) Section 1 (General Provisions - article III-257 to article-264); b) Section 2 (Policies on Border Checks, Asylum and Immigration - article III-265 to article 268); c) Section 3 (Judicial Cooperation in Civil Matters - article III-269); d) Section 4 (Judicial Cooperation in Criminal Matters - article III-270 to article III-274); and e) Section 5 (Police Cooperation - article III-275 to article III-277). We shall try to succinctly emphasise and systematize the principal measures, policies and/or principles mentioned in the five sections of Chapter IV "Area of Freedom, Security and Justice". Thus, in Section 1 of the CT, under the epigraph "General Provisions", the most noteworthy aspects are: a) the reiteration of the respect for fundamental rights and for the different legal systems and judicial traditions of the Member-States in the formation of the area of freedom, security and justice; b) the reaffirmation of the principle of a single market without controls of persons at the internal borders but with controls at the external borders and the development of common policies in matters of asylum and immigration, the equivalence of the status of stateless persons and nationals of third states and, finally, the solidarity of MemberStates in this domain; c) the commitment of the Union to endeavour to assure a high level of security, through the adoption of measures to prevent crime, racism and xenophobia, among others, through the coordination and cooperation of judicial and police authorities and/or other relevant authorities, through the mutual recognition of judicial decisions in civil and criminal matters, as well as through the harmonization of criminal legislation. These provisions are elaborated in greater detail in sections 3, 4 and 5; d) a Permanent Committee was established in the Council with the objective of insuring the promotion, in the Union, of the reinforcement of the operational cooperation in matters of internal security as well as fomenting the coordination of the actions of the competent authorities of Member-States, a concept that was addressed by the Hague Programme300; e) the reiteration of the principle that freedom, security and justice are not the an exclusive competence of the European Union "This Chapter shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance
300

See Presidency Conclusions of the European Council of the 4-5 November 2004: "2.5 Operational cooperation - Coordination of operational activities by law enforcement agencies and other agencies in all parts of the area of freedom, security and justice, and monitoring of the strategic priorities set by the Council, must be ensured. To that end, the Council is invited to prepare for the setting up of the Committee on Internal Security, envisaged in Article III-261 of the Constitutional Treaty, in particular by determining its field of activity, tasks, competences and composition, with a view to its establishment as soon as possible after the Constitutional Treaty has entered into force. To gain practical experience with coordination in the meantime, the Council is invited to organize a joint meeting every six months between the chairpersons of the Strategic Committee on Immigration, Frontiers and Asylum (SCIFA) and the Article 36 Committee (CATS) and representatives of the Commission, Europol, Eurojust, the EBA, the Police Chiefs' Task Force, and the SitCEN."

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European Scientific Journal of law and order and the safeguarding of internal security."301; f) the implementation of administrative cooperation between the relevant departments of the Member-States in matters relating to the Area of Freedom, Security and Justice, as well as between those departments and the Commission. In Section 2 of the CT, under the epigraph "Policies on Border Checks, Asylum and Immigration" there are several aspects that ought to be emphasised: a) The CT foresees the possibility of the gradual introduction of an integrated management system at external border controls (paragraphs a) and c) of n 1 of article III-265)302; this policy has been recovered by the Hague Programme (1.7- Management of Migration Flows 1.71 Border checks and the fight against illegal immigration) "The European Council stresses the importance of swift abolition of internal border controls, the further gradual establishment of the integrated management system for external borders and the strengthening of controls at and surveillance of the external borders of the Union. (...) The European Council welcomes the establishment of the European Agency for the Management of Operational Cooperation at the External Borders, on 1 May 2005. It requests the Commission to submit an evaluation of the Agency to the Council before the end of 2007.303; b) The CT, in paragraph a) n 2 of article III-265, considers the possibility that European laws or framework laws shall establish measures concerning: (a) the common policy on visas and other short stay residence permits;" and, similarly, the Hague Programme304

301

See article III-262. "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.
302
303

See Presidency Conclusions of the European Council of Brussels 4-5 November of 2004. Id., "1.7.3 Visa policy: The European Council underlines the need for further development of the common visa policy as part of a multi-layered system aimed at facilitating legitimate travel and tackling illegal immigration through further harmonization of national legislation and handling practices at local consular missions. Common visa offices should be established in the long term, taking into account discussions on the establishment of an European External Action Service. The European Council welcomes initiatives by individual Member States which, on a voluntary basis, cooperate at pooling of staff and means for visa issuance. The European Council: invites the Commission, as a first step, to propose the necessary amendments to further enhance visa policies and to submit in 2005 a proposal on the establishment of common application centres focusing inter alia on possible synergies linked with the development of the VIS, to review the Common Consular Instructions and table the appropriate proposal by early 2006 at the latest; stresses the importance of swift implementation of the VIS starting with the incorporation of among others alphanumeric data and photographs by the end of 2006 and biometrics by the end of 2007 at the latest; invites the Commission to submit without delay the necessary proposal in order to comply with the agreed time frame for implementation of the VIS; calls on the Commission to continue its efforts to ensure that the citizens of all Member States can travel without a short-stay visa to all third countries whose nationals can travel to the EU without a visa as soon as possible; invites the Council and the Commission to examine, with a view to developing a common approach, whether in the context of the EC readmission policy it would be opportune to facilitate, on a case by case basis, the issuance of short-stay visas to thirdcountry nationals, where possible and on a basis of reciprocity, as part of a real partnership in external relations, including migration-related issues.
304

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European Scientific Journal develops this concept; c) The CT mentions, in n1 of article III-266305, the possibility of developing a common policy in asylum matters. Again, this policy was also analyzed and perfected by the Hague Programme: "The aims of the Common European Asylum System in its second phase will be the establishment of a common asylum procedure and a uniform status for those who are granted asylum or subsidiary protection (...); 1.6 - The external dimension of asylum and migration; 1.6.1 - Partnership with third countries - asylum and migration are by their very nature international issues (...); 1.6.2 - Partnership with countries and regions of origin; 1.6.3 - Partnership with countries and regions of transit; 1.6.4 - Return and re-admission policy (...)."306 However, it should be mentioned that the CT did not lead to any substantial innovation regarding the topic of asylum because, in truth, all of these policies/measures were already in place in the European Union307. The CT had the merit of enshrining these policies and measures in the Constitution thus making it possible, by laws or framework laws, to implement measures towards the establishment of a common European asylum system that includes: 1) a uniform asylum status for nationals of third countries valid throughout the Union; 2) a uniform status of subsidiary protection for nationals of third countries that did not secure European asylum and therefore need international protection; 3) a common system that, in case of a massive flow or asylum-seekers, provides temporary protection for dislocates persons; 4) common procedures in the attribution and cancellation of the asylum uniform status or of subsidiary protection; 5) criterions and procedures for determining the Member-State that is responsible for the analysis of requests for asylum and subsidiary protection; 6) norms relating to the accommodation of those that require asylum or subsidiary protection; and 7) partnership and cooperation with third countries for the better management of asylum-seekers flows and of those that require subsidiary or temporary protection; d) the CT mentions, in n1 of article III267, the possibility of the EU developing a common migration policy "(...) The Union shall develop a common immigration policy aimed at ensuring, at all stages, the efficient management of migration flows, fair treatment of third country nationals residing legally in Member States, and the prevention of, and enhanced measures to combat, illegal immigration and trafficking in human beings." The Union can, through laws or framework laws, establish and

305

The Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties.
306 307

Ibid. See RODRIGUES, op. cit., and RODRIGUES, A Histria do Direito de Asilo no Direito Internacional, working paper n 18/2006, CEEApla Centro de Estudos de Economia Aplicada do Atlntico, Universidade dos Aores.

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European Scientific Journal promote measures in the following domains: 1) conditions of entry and residence; 2) norms concerning the emission, by Member-States, of visas, long-term residence and family reunion permits; 3) defining the rights and conditions of free circulation and the permanence of nationals of third countries that reside legally in a Member-State; 4) measures in the ambit of illegal immigration, illegal residence, removal and deportation; 5) measures to combat human trafficking, especially women and children; 6) to conclude re-admission agreements with third countries (of origin and/or provenance); 7) measures to promote and support the actions of Member-States to foment the integration of nationals from third countries that reside legally in their territories. The CT, however, did not introduce any substantial innovation in the domain of immigration, except integrating into the constitution the policies and measures that had already been adopted by the EU; 2) the CT introduced in n 5 of article III-267 a "perilous measure" in the scope of immigration: "This Article shall not affect the right of Member States to determine volumes of admission of third-country nationals coming from third countries to their territory in order to seek work, whether employed or self-employed." By tolerating these discretionary powers of the Member-States, the Union will rapidly lose control over immigration policy even though it has none at the moment. However, only the integral transference of these competences (immigration/asylum) to the European Union and with a resulting uniform policy (the inclusion of "maximum migration quotas for the European Union" and the establishment of a single "institution responsible for the management of migration") can we ever hope to effectively manage migration flows and concomitantly make Member-States co-responsible308 for this human tragedy. Much like the preceding paragraphs, the paragraph on migration was also formulated in the Hague Programme "(1.2 - Asylum, migration and border policy) International migration will continue. A comprehensive approach, involving all stages of migration, with respect to the root causes of migration, entry and admission policies and integration and return policies is needed." In section 3 of the CT, on paragraph "Judicial Cooperation in Civil Matters", there are two essential aspects that must be considered: a) the Union shall undertake cross-border judicial cooperation in civil matters, based on the principle of the mutual recognition of judicial and extra-judicial decisions. This principle of mutual recognition is in fact the "cornerstone" of the judicial cooperation in civil and criminal matters, as mentioned in section 4; b) this cooperation requires that the Union adopt measures to approximate the legislative and regulatory provisions
308

See article III-268: "The [common asylum and migration] policies of the Union set out in this Section and their implementation shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States. Whenever necessary, the Union acts adopted pursuant to this Section shall contain appropriate measures to give effect to this principle."

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European Scientific Journal of Member-States. With this end in mind, the Union, in endeavouring to insure a well-functioning internal market, could, by law or framework-law, implement the following measures: 1) the mutual recognition between Member-States of judicial and extra-judicial decisions and their respective execution; 2) cross-border notification of judicial and extra-judicial acts; 3) the compatibility of norms applicable to Member-States in matters of conflict of laws and jurisdiction, 4) the cooperation in the matters related to proof-collection; 5) effective access to justice; 6) the elimination of obstacles to the implementation of civil actions and promoting, if necessary, the compatibility of norms of the civil process that are applicable in Member-States; 7) the development of alternative methods to resolve litigation; 8) the assistance of magistrates, workers and agents of justice with their professional development. With regard to section 4 of the CT, relating to "Judicial Cooperation in Criminal Matters", the essential points to consider are: a) judicial cooperation in criminal matters in the Union rests upon the principle of mutual recognition of the judicial judgements and decisions; and b) the harmonization of legislative and regulatory provisions of Member-States. In order to achieve this objective, the Union, by law or European framework-law, implement measures towards: 1) Defining rules and procedures for insuring the recognition, throughout the Union, of all judicial decisions and judgements; 2) prevent and resolve the conflicts of jurisdiction between MemberStates; 3) to assist with the professional development of magistrates, workers and agents of justice; 4) facilitate cooperation between judicial authorities or other equivalent institutions of Member-States in the ambits of investigation and in the exercise of criminal actions, as well as on the execution of decisions309. In this context, the objective of facilitating the mutual recognition of judicial judgements and decisions and of promoting police and judicial cooperation in cross-border criminal matters can be undertaken in the basis of European framework laws, which could establish minimal rules310, taking into account the differences between the juridical systems and traditions of Member-States. It may also establish a specific juridical basis for material criminal law through the adoption of minimal rules311 relating to the

309 310

See Official Journal C326, of 21.11.01 See n2 of article III-270: "Such [minimum] rules shall take into account the differences between the legal traditions and systems of the Member States. They shall concern:(a) mutual admissibility of evidence between Member States; (b) the rights of individuals in criminal procedure;(c) the rights of victims of crime; (d) any other specific aspects of criminal procedure which the Council has identified in advance by a European decision; for the adoption of such a decision, the Council shall act unanimously after obtaining the consent of the European Parliament." 311 PIARRA, Nuno, O espao de liberdade, segurana e justia no Tratado que estabelece uma Constituio para a Europa: unificao e aprofundamento, in O Direito, ano 137; IV-V, 2005, p. 1004: "() We cannot, therefore, consider this aspect of the harmonisation of criminal legislation "minimalist" only because the Constitutional Treaty still uses the unfortunate expression "minimum rules", which resulted from unclear compromises. In this context, the substantive "rules" ["relating to the definition of criminal transgressions and sanctions"] would dispense any adjective. However, if it had to be coupled with any term, it should be

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European Scientific Journal definition or criminal violations and of the sanctions to be applied in cases of particularly grave cross-border criminality312 (terrorism, human trafficking, sexual exploitation of women and children, arms and drugs trafficking, money laundering, corruption, counterfeiting of means of payment, cyber-crime and organized crime) that results from the very nature and incidence of these crimes or from the special need to develop a common legal framework to combat them. However, in our view, one of the most significant aspects of the CT in this domain of judicial cooperation in criminal matters was: a) the implementation, by law or by European framework law, of measures to promote and support the actions of Member-States in the domain of crime prevention; b) the institutionalization or constitutionalization of Eurojust313 with the resulting definition of functions. In this regard, Eurojust may: 1) proceed to the opening of criminal investigations; 2) proposed the enactment of criminal actions to be undertaken by competent national authorities, especially those relating to criminal transgressions that are detrimental to the financial interests of the Union; 3) coordinate investigations and criminal actions referred to in points 1 and 2; 4) reinforce judicial cooperation, in accordance with the resolution of conflicts of jurisdiction and in strict cooperation with the European Judicial Network (EJN)314; 5) implement official acts of the judicial process in the exercise of criminal actions through national agents315; 6) starting with Eurojust, the possibility to institute through a European law that is unanimously adopted at the Council and approved by the European Parliament316, a European Attorney-General Office with the objective of combating crimes that are detrimental to the financial interests of the Union; later, by European decision, this institution could extend its competences to serious cross-border crimes that affect several Member-States (n4 of article III274). The European Attorney-General and/or the "European Public Ministry" has powers to

"adequate", bearing in mind that the objectives, principles and values that characterize the Area of Freedom, Justice and Security in the Constitutional Treaty. 312 Ibid. "(...) We should note, however, that "crimes against the Union", whose effective repression depends on the transposition of European framework-laws to the juridical regimes of Member-States, as well on the actions of the police forces, the Prosecution services and its courts, are clearly distinguished, for example, from the "crimes against the United States" in the US federal law. In this case, the federal law does not depend on any transposition and is directly executed and applied by the police, the Prosecution services and by federal courts respectively." 313 See (Eurojust) Decision 2002/187/JHA of the Council, of the 28 th of February of 2002 (Official Journal L 63 of 6.3.2002); Council Decision 2000/7999/JHA, of 14.12.2000 (Official Journal L 324 of 21.12.2000); European Council Decision 2004/97/EC (Official Journal L29 of 3.2.2004); The Treaty of Nice includes Eurojust in the Treaty on the European Union (OJ C80 of 10.03.2001). 314 See European Judicial Network (EJN) - Joint Action of 29th of June of 1998, adopted by the Council, on the basis of the article K.3 of the Treaty on the European Union, established a European Judicial Network (Official Journal L 191 of 7.7.1998). 315 See n 2 of article III-273. 316 See n1 to 4 of article III-274.

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European Scientific Journal investigate, sue and submit to trial, in cooperation with Europol, the authors and accomplices of crimes that are detrimental to the financial317 interests of the Union. In section 5 of the CT, on the paragraph relating to "Police Cooperation", there are some basic aspects that should be considered: a) the association of all of the competent authorities of Member-States (police, customs and other services responsible for the specialized application of the law in the domains of prevention, detention and investigation of criminal crimes); b) the constitutional institutionalization of Europol318, with the mission to support and reinforce the actions of police authorities and of other services that are responsible for the application of the laws of Member-States. Cooperation between these authorities has been instituted so as to prevent serious forms of criminality that affect two or more Member-States, such as terrorism and other forms of criminality detrimental to a common interest that is addressed by a EU policy, as well as in combating these phenomena; c) the redefinition of the functions of Europol, which should include: 1) collection, storage, analysis and exchange of information that has been transmitted by the authorities of Member-States or by third countries; 2) coordinating, organizing and conducting investigations and operations, undertaken jointly with the authorities of MemberStates or in the ambit of joint investigations that could be articulated with Eurojust. Conclusion: The Treaty that establishes a Constitution for Europe follows a "policy of small steps." In reality, this Treaty does not constitute "(...) a rupture, and inscribes itself into constitutional continuity given that most of its contents have already been enacted by the present Treaties."319 The CT symbolizes the stereotyped image of the sovereign state, despite we know from the start that the European Union will never be sovereign. However, this underlying juridicalconceptual facts cannot and should not be a subterfuge for our national fears in advancing with a full integration, in which common legal codes would be applied (Criminal, Criminal Process, Commercial, Civil, Labour Laws, Asylum, Migration, among many others) insuring juridical security, equality of opportunity and treatment, as well as social cohesion in the midst of the European Union. The "policy of small steps" only makes sense if we know beforehand which road we wish to take; if not, then we shall have the "policy of small regresses", just as it has happened recently with the non-ratification by France and the Netherlands of the Treaty
317

See European Anti-Fraud Office (OLAF) - Decision of the Commission of 28th of April of 1999 (Official Journal L136 of 31.5.99); regarding this point see also Official Journal L312 of 23.12.1995; Official Journal C 316 of 27.11.1995; First ProtocolOfficial Journal C 313 of 23.10.1996; Official Journal C 151, of 20.5.1997; Second Protocol - Official Journal C 221, of 19.7.1997. 318 See European Police Office (Europol Convention) Official Journal C 316 of 27.11.95 319 MARTN, op. cit., p.738.

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European Scientific Journal establishing a Constitution for Europe. The values of Freedom, Security and Justice and/or the CSFSJ are, "unquestionably, one of the shipyards of the Union in the 21st century"320 and constitute, therefore, the foundations of the European Union and its Member-States. Hence, "The security of the European Union and its Member States has acquired a new urgency, especially in the light of the terrorist attacks in the United States on 11 September 2001 and in Madrid on 11 March 2004 [and on 7 July 2005 in London]."321 Why then should we delay the process of legislative unification? Blind are those who have not yet grasped the road that we have taken. In other words, "the deep integration in domains of a political nature, which can supplant the superficial aversion to the federalist project, is desirable and necessary."322 As far as we are concerned, we want a free Europe that is safe, just, strengthened, fraternal, egalitarian, open and, above all, respectful of the Fundamental Rights of every Man, irrespective of his/her Member-State and/or country of origin.

320 321

PIARRA, op. cit, p.1009. See Presidency Conclusions of the European Council of Brussels, 4-5 November of 2004 (14). 322 BRANCO, Jos Pedro Aguiar, Liberdade de circulao e circulao da liberdade Incluso, diversidade e criminalidade na Unio Europeia, in Europa Novas Fronteiras, n 16/17, Lisboa, ed. Centro de Informao Europeia Jacques Delors, 2005, p.20.

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UDC No. 347.72.034

CONTRIBUTION IN THE COMPANY (According to the Macedonian Company Law) Jovan Shopovski, MA
Republic of Macedonia

The contribution in the company is the second constitutive element of the company, apart from the plurality of the members and their participation in the final results of the companys, which by the Macedonian company law is defined as the capital which in the foundation (or in the process of increasing the share capital) is left for the company. The contributions of the company are in the forms of money, assets and real estate as well as rights (labour and services, only if allowed by the law) which the member, i.e. the stockholder, transfers it to the company in the process of the establishment or in the process of increasing the share capital. 323 Since the contributions are the first and main source in establishing the capital of the company, it is clearly that the prime duty of the member is to make a contribution into the company. As we have mentioned before, the duty to make a contribution (money, movables, real estate and the rights, labor and services only if allowed by the law) in the company, establishing the initial capital, which is not the only condition for foundation, but it is also a condition for further existence of the company, exists in all kinds of companies. We have already mentioned one of the most important characteristic that includes the term prime capital, and that is the fact that contributing in the company is an essential requirement for the foundation of the company. If there are no contributions made, a company cannot be established by legal terms. Since, without a capital (which is established through contributions), the company cannot execute its primary function for which is entitled to, and therefore a legal person cannot exist without a capital.
323

Clen 34, stav 1 od Zakon za trgovski drustva, Sluzben vesnik na RM, br. 28/2004, 84/2005, 25/2007, 87/2008 I odluka na Ustaven Sud na RM, U.br.177/2005 od 24 maj 2006.Vo natamosniot tekst: Zakon za trgovski drustva.

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The company that is founded with no contributions or with fictional contributions (contributions with no value or contributions that are laden with bonds bigger than their actual value), can be invalid. Future members are obligated to submit their initial contributions. In addition to this obligation, they have to make an actual payment for their contributions. So, the payment phase is when the members made an actual payment of their previously subscribed obligations. They are not only entitled to subscribe their contributions, which represents the period of subscribing the contributions, but to actually pay the contributions, which represents the period of making a payment of the contributions, thus creating the capital essential for the company to function. It is worth mentioning, that contribution is an operation which entitles the members to obtain certain rights in the company, regarding their contribution. This is the characteristic that distinguishes the contributing from terms, as selling goods or approving a loan. This is about contributing in the company, according to which, the members get certain rights towards the company. These rights correspond proportionally to their contributions, and each represents certain amount of shares in the company. So, what the members get as reciprocation for their contribution in the company, is not a price nor interest, but totality of rights, which are proportional to their contribution. A really important fact regarding the contribution in the company, is that the members are not owners of a part of companys capital. Through the procedure of contribution, the member makes his contribution to the company - a legal person with special legal subjectivity, and becomes its owner. For his contribution, the member gets share in the company as a totality of rights and obligations towards it. 324

324

Milan d-r Nedkov,Tito d-r Belicanec i Elena d-r Gradiski-Lazarevska,Pravo na drustvata, p. 195, SIGMA PRES,Skopje, 2003.

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1.1 Subject of contribution There are two types of contributions: Monetary contribution (Money as contribution) Nonmonetary contribution (Movables, real estates and rights as contribution). The contribution in the form of labour and services is considered as non-monetary contribution, but due to certain specifications it treated quite differently. This type of contribution cannot be part of the companys share capital and therefore cannot be an object of enforcement in legal procedures. The obligation of a monetary contribution and its payment must be executed in the official currency of the Republic of Macedonia, which is denar.325 As it was mentioned before, subscribing the contributions and their payment are two different procedures. Payment of a monetary contribution is carried out when the registered monetary sum will be paid-in on the temporary account of the company (if it is paid-in during the phase of establishing the company) or on a companys account, if it is increasing the capital in an already existing company by additional contributions. Non-monetary contributions can be defined as contributions that are consisted of goods (movables and real estate) and rights that have value. Any kind of contribution which is not in the form of money or labor and services, can be defined as nonmonetary contribution. Otherwise, a contribution made in goods should satisfy certain claims, if we want to be considered as a non-monetary contribution. For example, a subject of contribution that is a non-monetary contribution, should be determined a monetary value, which means that there must be a value that can be estimated by appraiser, without major difficulties.326 The legislator does not appoint the condition, regarding the object of the contribution to be used for the activity of the company. Another demand of the non-monetary contribution is its value to be expressed in the foundation act of the company (memorandum, articles of association etc.).
325 326

Clen 34, stav 2 od ZTD. Clen 35, stav 5 od ZTD.

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Otherwise, members/shareholders can simply accept the value of the items that entered as contributions by the member, although that is not the fair value of the contribution. Members themselves under take responsibility towards third parties, if the value written in the memorandum or article of the association is lower than the actual one. Such problem may be found in some types of companies (Limited liability company and public limited company). During the foundation of such companies, members intent as much as they can, to overestimate their contributions, which can cause a impairment to third parties, since the subscribed amount of the share capital does not match the real one. In order to prevent this kind of situation, the legislator provides a range of different preventive measures, depending on the type of the company. In the case of a limited liability company, the non-monetary value of the contributions, before they are taken over by the company, are assessed by certified appraiser, although in some cases the members may unanimously decide not to estimate the value of their non-monetary contributions.327 In case the value of the contribution of goods is estimated, or if the value expressed in the memorandum is different from the value suggested by the appraiser, the legislator as prevention prescribes: the members are liable towards third parties for a period of five years from the date of registration of foundation in the company register, for the value of the contribution, specified at the time of the foundation of the limited liability company 328. In the case of the public limited company, the legislator provides that the valuation of the non-monetary contributions is a required matter of the statute of the company (articles of association). In the procedure of foundation of a public limited company, the founders enclose a report to the statute which is prepared by a certified appraiser, who is selected by them. Another very important requirement when it comes to non-monetary contributions is that the contribution should always be available to the company as a whole, before registering the company in the company register and be eligible for use.
327 328

Clen 177 od ZTD. Milan d-r Nedkov,Tito d-r Belicanec i Elena d-r Gradiski-Lazarevska,Pravo na drustvata, p. 185, SIGMA PRES,Skopje, 2003.

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By the argumentum a contrario, if the objects are unfinished or are yet to be made, or build, they cannot be the object of the non-monetary contribution. The rights which can be an object of non-monetary contributions by their nature can be very different. Moreover its referred to the rights of intangible goods. Considering the rights of intangible goods, they may include: copyrights, inventions, intellectual property rights etc. The rights entitled from securities and financial instruments can be listed in this group. An object of non-monetary contribution can be certain claims of the member who is a debt holder towards a creditor. So these claims can be a contribution of the members, and with the cession it will pass over this right to the company. 1.2 Minimum amount of a contribution During the foundation of the company every member has the right of a contribution, which means that every founder at the foundation can take only one contribution in the company. In contrast to this, one contribution may have more owners. The main difference between the shares in the public limited company and shares in other types of companies is that the shares in other types of companies (partnership, limited liability company etc.) do not need to be equal, which means that their amounts can vary. The minimum amount of the contributions can be different, because of the fact that the legislator in the companies such as partnerships (where the personal connections and trust between members are at a very high level) does not set any minimum amount of the contribution. Here, the founders/members are left free to determine the amounts of the contributions. By contrast, when it comes to corporations such as public company and limited liability company, the law defines precisely the arrangement of the minimum amount of contribution. So, by the Companys legal act, it is clearly appointed the amount of every single contribution. In the limited liability companies this amount may be different, but the value of the contribution can not be less than 100 euro in denar equivalent, while by

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the law it is determined that even the smallest nominal amount of the share in a public limited company, should not be lower than 1 euro in denar equivalent. 329 The intention of the legislator is, through this kind of assessment of smallest amount of the contribution in the limited liability company, to prevent participation with insignificant capital in this type of company, while the determining a legal minimum amount of the share in public limited company aims to attract a larger number of investors to invest in shares. 1.3 Contribution in the form of labour and services. According to the Company law, contribution in the form of labour and services, is allowed in partnerships. With this kind of contribution in these companies, the members are actually obligated to make available to the company their expertise, their services, as well as their labour. So, the investors are obligated to perform the services that they had promised to it (according company memorandum), and to convey the benefits achieved by the activity which is the subject of their contribution. The position of the members in the company that brings investment in the form of labour and services is quite different from the person who is employed in the company. So, between the member and the company there is no subordination and the member can not perform activities for himself, with which he would compete with the company. As we have mentioned before, this kind of contribution (in the form of labour and services) can not represent a guarantee for the creditors of the company, and therefore is not included in the establishment of the share capital. There are concise decrees in the Company Law, valid for a limited liability company and a public limited company, where the forms of labour and services as contributions, are explicitly prohibited. These types of contributions are only allowed in the general and limited partnership, since in these companies the members are accountable for the obligations/debts of the company with all their contributions as well as all their personal assets.330

329 330

Clen 174, stav 4 I clen 273, stav 2 od ZTD. Clen 174, stav 2 od ZTD.

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The contribution in the form of labour and service in these types of companies, allows acquisition of a share, which carries the same rights for the member, as the share arises from the non-monetary contribution. References: Barbic dr. Jaksha,Zakon o trgivachkim drushtvima,I dio,drugo izmenjeno I dopunjeno izdanie,Organizator,Zagreb,2009. Barbic dr. Jaksha,Pravo drushtva,Knjiga prva:Opchi dio,Organizator,Zagreb 1999. Barbic dr. Jaksha,Pravo drushtava,Knjiga druga:drushtva kapitala,Organizator,Zagreb,2008. Barbic dr. Jaksha,Pravo drushtava,Knjiga trecha:drushtva osoba,Organizator,Zagreb,2002. Milan d-r Nedkov,Tito d-r Belicanec i Elena d-r Gradiski-Lazrevska,Pravo na drustvata,SIGMA PRES,Skopje,2003. Milan d-r Nedkov,Tito d-r Beli~anec,Pravo na dru{tvata,Kniga 2,Proekt na delovnoto opkru`uvawe na USAID,Skopje,2008.

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ESJ March, 2011/ Special Issues

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UDC No. 314(496.672)

The changes of population in Gjirokastra region Albina Sinani, PhD331

University of Gjitokastra,Albania

Abstract: The summer of 1990 marked the ending of the long imposing political isolation of the communist regime and marked the shifting from the planned economy onto the free trade, there was allowed the free circulation of the population, the private sector was legalized and the construction activity was rapidly developed mainly to solve the problem of housing. During this period, as a result of a complex political, historical, cultural, social, psychological, economical factors etc, has occurred changes in all aspects in the lifestyle of Gjirokastra region, mainly demographic ones, which affected directly the rural development. The birth rate and immigration, the death rate and emigration, the social, economical, educational, cultural changes etc are the main factors which have influenced in the change of the number of the rural population of the region. The forecast of the population of the region is important for the calculation of the needs in the development of the economy, education, culture, infrastructure, for general estimations, macroeconomic calculations etc. Thus, a decrease of the regions population at an average of 745.2 persons per every year (starting from 2004), will result in 2009 that all the communes will have a population decrease. Keywords: Natural increase, migrating balance, urbanisation, physiological density, age pyramid.

331

PhD. Albina Sinani, Faculty of Education and Social Sciences, Geography Department, Eqrem abej University, Gjirokastr

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Introduction: The analysis is carried out in the space and time dynamics on the basis of the comparison among the rural areas of the district of Gjirokastra. For a more accurate presentation of the demo-geographical phenomena, attention has been paid to the graphic and cartographic aspect through which many features of the population such as the territorial distribution, features of the age structure and urbanization have been broken down. The cartographic presentation has helped in the detailed presentation of the phenomena of the rural population contributing in this way to knowledge of the rural population geography of the district. This paper has as its object the study of the demographic processes in the rural area of the district of Gjirokastra on a demographic and geographic plan. It intends to identify the laws and features of changes in the rural geography and population of the district.

The natural conditions The features of the geographic position

The district of Gjirokastra lies in southeast Albania, in the central part of the Southern Mountainous Region and it is run by the Viosa river and its main branch Drino. It occupies an important position bordering Greece in the south east, with which it is connected by two border points. Kakavija and Tri Urat.

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Figure 1: Geographical position of Gjirokastra region (PhD. A. Sinani)

Features of the relief

The relief of the district is mainly mountainous and hilly. 54.8% of its territory lies at altitudes of 300 1000m, whereas 30.4% lies at altitudes higher than 1000m above sea level. There is large, hypsometric amplitude, the highest point being the Nemercka Mountain (Drita peak 2484.9 m) and the lowest point in Kalivac, where Vjosa River leaves Tepelena at 67m above sea level.

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Figure 2: The area structure according to altitude in percentage in Gjirokastra region


60 50 40 30 20 10 0 Girokastra Gjirokastra region district 14.8 54.8 30.4 15.9 50.6 33.5 Prm eti district 10.1 58.8 31.1 Tepelena district 18.6 56.1 25.3

Up to 300 m 301-1000 m 1000 m and upwards

Climatic features

The district of Gjirokastra has suitable climatic conditions for rural development, with multifarious Mediterranean climate. The Vjosa valley and its branches enable the penetration of the warm, sea winds through the Kelcyra 332 pass up to Perat. The district of Gjirokastra receives on average over 2000mm of rainfall per year, which is more than the average amount nationwide (1430mm). As far as the hydrologic and energetic potential is concerned, it comes second to the Alps region. 80.5% of the precipitations are concentrated in the cold half of the year and 19.5% in the warm one. The water resources

In the district of Gjirokastra there is a relatively dense hydrographic network, with plentiful and qualitative water resources. Within its space there is a river network with a total length of 820.2 km and density from 0.164 km/km for the river Drino to 2.2 km/km for the river Vjosa and its branches. The district is rich in underground water sources, mineral and thermo mineral waters with huge economic, tourist and environmental values.
332

Encyclopedia of Tepelena, 2005, p235.

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The flora and fauna

The flora is multifarious with 179 kinds of trees and plants of 208 nationwide. Forest plants take up 29.8% of the area of the district (bushes take up 45.6% of the forest fund of the district.) and there are over 120 kinds of aromatic and medicinal plants. The fauna of the district of Gjirokastra contains 13% of the rare species of Albanian. Early population The valley of Vjosa has been a cradle of civilization since ancient times when the river used to be called Aoos Aous etc. It was mentioned in the VI-V centuries B.C. when it constituted the axes of the natural roads, along which lay settlements and economic activities333. The development of settlements in this valley was favoured by the short distance to the coast (24.6 to 72 km). Due to the geographical position, the upper valley of Vjosa has served as a link for the southeastern Illyrian regions with the Aegean and Adriatic334 regions. The early population and the various economic activities that took place since ancient times have created invaluable riches in the cultural heritage of this area. The administrative division started when the district was under the Turkish rule. According to the property register Registration of the lands of the Sandjak of Albania in 1431-1432335 the city of Gjirokastra became the center of the Albanian Sandjak, which was divided in provinces and later on in cities (Gjirokastra, Permeti, and Kelcyra) 90.0% of the population lived in the rural areas of the district. According to the Turkish registration of the year 1879, the population of the rural areas constituted 86.4% of the population. The new administrative division of the year 1928 and the creation for the first time of the communes in April 1929 affected directly the size and population of the settlements in the district of Gjirokastra. In the first years 47.4% of the emigrants had as destination Greece, 29.2% Turkey, 15.8% America and 7.6% other countries. Between the two registrations of the years 1923 and 1945, the population of the district was reduced at a yearly rate of 0.43% and the density at -0.2 people per km.
333 334

Lole 2000, p61. Encyclopedia of Tepelena, 2005, p235. 335 Berxholi 1987, p9-15.

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With the law No. 284, of the date 22 August 1946, Peoples Republic of Albania was proclaimed and the new administrative division was approved which lasted until July, 1953. The largest local unit of the space was the prefecture of Gjirokastra, made up of sub-prefectures, communes and localities. In the year 1976 the Peoples Socialist Republic of Albania was proclaimed and in the year 1979 the administrative unit of locality was absolved but sub-districts, unified villages, cities and villages was preserved. On decision of the Ministers Council, No.269, of the date 25 June, 1992, the reorganization of the territory of Albania was carried out, where the district made up of municipalities and communes constitutes the largest administrative unit. The region of Gjirokastra is made up of 26 communes and 6 municipalities. Its constitution took place on 21.11.2000336. Historic tendencies of population A lot of comparisons have been made and a lot of tendencies have been pointed out according to the results of the 1989 census- the last one of the past regime, and according to the 2001 population and house census. The data taken from the Registry Office of the different district of the prefecture have been elaborated, too. The increase and the dynamics of population

Studying the population helps make an accurate social-economic planning. During the previous decades the rural population of Gjirokastra region continuously increased: since the Second World War the yearly average rate of the population increase was 1.0%, making it possible that the population would be increased 1.5 times during the 44 last years (62.1% of this increase came from the natural increase and -37.9% from the negative migration balance). Since 1950 to 1990, the Gjirokastra region population had gone through decades of a rapid increase of the population, although the speed of this movement had been decreased in a progressive way. At the end of 1989, the rural population of Gjirokastra region increased by 52% in comparison to year 1945. A direct result of the rural population growth in the above region was the increase of rural

336

UNDP. The strategy for the development of the region of Gjirokastra, 2005.

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density from 25.3 h/km2 in 1945 to 38.4 h/km2 in 1989. The density of population was low in the region of Shqeri, Zagori, Pogon, Kurvelesh and Frasher. Figure 3: The average density in h/km
50 45 40 35 30 25 20 15 10 5 0 Y 1945 ear Y 1989 ear Gjirokastra region 25.3 38.4 Gjirokastra district 25.4 35.9 Prmeti district 26 36 Tepelena district 24.3 44.3

Source: Sinani (2011) The number of the rural population decreased as a result of the urbanization growth. Figure 4: The specific growth of rural population in %
100 80 60 40 20 0

Gjiro kastra Gjiro kastra re gio n distric t 84.6 68.1 71.9 59.7

P rme ti distric t 94.2 76.5

Te pe le na distric t 97.8 72.5

Ye ar 1945 Ye ar 1989

Source: Sinani (2011) According to 1989 census figures, 50.8% of the population lived at the altitude of 301-599m and 27.5% at the altitude of 100-299m. This tendency was reversed during 1989-2001, period in which there was a negative increase (-3.6%), which shows an
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absolute decrease of the rural population by -37377 and -11343 in habitants respectively during the periods 1989-2001 (according to INSTAT) and 2001-2009 (according to the Registry Office). Thanks to this massive shifting of the population, the number of the inhabitants changed every year. According to INSTAT, during 1989-2001 the region of Gjirokastra lost -35.2% of the 1989 rural population. According to the Registry Office figures, during 1989-2004 the greatest population decrease happened in the municipality of the district of Permet (Ballaban -38.4%, Suke -36.0%, Dshnic -31.9%, Frasher -22.5%), in the municipalities of the district of Tepelena (Buz -41.5%, Kurvelesh -38.8%, Lopes -37.4%, Luftinj -22.1%) and in the municipalities of Gjirokastra (Picar -25.2%)337. The decrease of the rural population increase rate was brought about mainly by the decrease of the birth-rate. During 1989-2004 the number of population decreased at a yearly average rate by 0.6%, with a negative immigration balance of the male element of 54.5% of the total net immigration balance. During 1989-2004, in the municipalities of the district of Gjirokastra, the number of population increased at an yearly average rate of 0.7%, in the municipalities of the district of Permet it decreased at an yearly average rate of 1.7%, whereas in the municipalities of the district of Tepelena it decreased by 1.4%. 56.1% of the immigrating people belong to the rural area of the region (43.2% from the district of Gjirokastra and 28.9% from Tepelena.

337

According to the Registry Office in the districts of Gjirokastra region.

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Figure 5: The density map

Figure 6: Database map of the average annual increase

By Civil Records, in the rural area of the region of Gjirokastra 50% of the communes there is found the rural population of 40.6% and it has a negative average annual rhythm of the population growth (up to 0.3%); 19.2% of the communes there is found the rural population of 22.2% and it has an annual average increase of -0.3 up to 0.5%; 26.9% of the communes there is found the rural population of 35.3% and it has an annual average increase 0.5% up to 1.4%; there is found an annual average increase of 2.1% only in the commune of Antigone. During the 2001-2009 period, too, the number of the rural population continued to decrease at an yearly average arte of -1.4%, where the greatest decrease continue to happen in the district of Tepelena at a rate of -2.6%. The rapid rate decrease of the rural population brought about the decrease of the rural density for each unit of the general surface: from 38.3 in h/km2 a year. Immigration is the main factor that caused great changes in the density index. Districts differentiation, according to density, influences a lot the district urbanization scale. Thus, in 2004, in the district of Gjirokastra the urban population represented 46.1% and its density was 71.9 in h/km 2, whereas in the district of Permet the urban population represented 41.2% and its density was 42.4 in h/km 2.

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Figure 7: Surface dispersion according to density in the rural area in 2004


100 80 60 40 20 0 Gjirokastra region 100 35 Gjirokastra district 39.9 39.9 Prmeti district 30.6 27.4 Tepelena district 29.5 36.2

The surface in % Density in hab/km

This unequal dispersion of the rural density brought about the rapid urbanization near the urban areas of the prefecture, showing decreasing agricultural activity, rural stability in the municipalities near the cities and tourism perspective in the remote mountainous areas. The population density increased only at the altitude of 300m, as a result of the concentration of the people coming from the mountainous areas. The highest number of population was concentrated: at an altitude up to 300m (14.8% of the region surface): from 45.3% in 1989 to 55.3% in 2004; at the altitude of 301-600m (23.8% of the region surface): from 34.3% in 1989 to 31.1% in 2004; at the altitude of 601-1000m (31.0% of the region surface): from 19.1% in 1989 to 12.9% in 2004; at the altitude over 1000m (30.4% of the region surface): from 1.3% in 1989 to 0.7% in 2004. During the period of 1989-2004 the yearly average increase of the rural density is -0.2 in h/km2. After 1990, thanks to the political, socio-economic, natural and demographic factors, the centre of gravity of the population 338 was transferred to the urban areas of the costal and central parts of the country (the prefecture of Tirana, Vlora, Durres) or abroad. The same shifting tendency (towards the North by 5.1 km and towards the West by 7.2 km) was shown by the median average centre, too 339. - The age structure

338

Q (Ave X; Ave Y, where Ave X=xipi/pi and Ave Y=yipi/pi): the point of the arithmetic average centre, where are met the two orthogonal lines in the topographic map, around which is achieved the dispersion and attraction of the regions population. 339 The position of the point that divide the dispersion of the regions population in two equal parts, which is calculated by adding the number of the population at length as well as at width up to reaching the half.

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During the 1990s immigration influenced a lot the definition of the age structure. We notice an immediate decrease in the number of the rural working young population in comparison to the old one: in 1989 there were 12 old people for each 100 working people, in 2001 there were 16 people. In 2001, the weight of the 0-14 years old agegroup decreased in comparison to 1989, for a period of 12 years whereas the weight of the above 50 years old age-group increased in comparison to 1989, having direct social-cultural consequences. Table 1: Types of the age structure in the rural area in the period between two censuses 1989-2001 Rural Types structures of Year 0-14 years Progressive type Stationary type 1989 32.2 2001 27.7 population 15-49 years 50.3 49.4 in percentage Over 50 years 17.5 22.9

Source: Sinani (2003) The analysis of the form of the age pyramid shows the particularities of todays evolution of the region population, the features and the tendencies of its natural movement.

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Figure 8: The pyramids of rural population according to age and gender by registration 1989 and 2001
MALES
100+ 90-94 80 - 84 70 - 74

FEMALES

MALES

100+ 90-94 80 - 84 70 - 74 60 - 64 50 - 54 40 - 44 30 - 34 20 - 24 10 - 14 0-4

FEMALES

1989

60 - 64 50 - 54 40 - 44 30 - 34 20 - 24 10 - 14 0-4

2001

-8000

-6000

-4000

-2000

2000

4000

6000

8000

-5000

-4000

-3000

-2000

-1000

1000

2000

3000

4000

5000

As a result of the slowing down of the natural growth rates and the high selective immigration scale, the region rural population age structure changed from a pyramid of progressive type before 1990 (having a large basis, where the population under 15 represented 40% and where the pyramid had a narrow point at the top, where the above 50 years old population represented under 10%), a pyramid of a stationary type (having a narrowing point at the top), with a decrease at the age-group up to 15 and an enlarging point at the top, where the old people over 50 represent 23.0%), starting so the demographic ageing process. The demographic population ageing scale is clearly shown by the old age index340. According to the 2001 census, the highest numbers concern the municipalities of Zagorie (164.7%), of Odrie (106.3%), of Pogon (81.7%), of Qender Libohove (65.7%), of Cepo (51.8%), of Lunxheri (41.4%), of Antigone (40.6%) in the district of Gjirokastra, the municipalities of Carcove (77.7%), of Petran (46.3%) and Ballaban (42.5%). As a result of high births, Tepelena remains the district with the youngest rural population in the region of Gjirokastra (the index of the old age is 27.9%), according to the 2001 census, the prefecture rural population has an average age of 34.7 years in comparison to 32.2 years in 1989. In 2001, 50% of the region rural population has a median age of 32.5 years in comparison to 29.4 years in 1989. The highest value of this indicator is represented by the municipality of Zagorie (44.0), Odrie (39.9), Pogon (38.2), Qender Libohove (36.4) and Carcove (37.5 years).
340

(P65+/P0-14 years or P60+/P0-19 years), the aging index is 40%, the population has entered the process of aging demographic.

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Figure 9: The geographical spread of the age survey (PhD. Albina Sinani)

- The gender structure In the course of years the coefficient of masculinity was scaled down as a result of its being influenced by immigration in the sex structure. The coefficient of masculinity for the age groups of 20-24 years341 was scaled down from 1226.9 to 1064.8. The sex structure changed depending on the altitude above the sea level: in the high altitude rural settlements the coefficient of masculinity is high (1108.8, because the population is younger and the average age is low). According to 2001 census the highest value of the sex proportion for the region of Gjirokastra is represented by the municipality of Odrie with 114.1% (114 males to 100 females), whereas at national scale it is 99.5%.

341

The processing of the data in the 1989 and 2001 registers: Km=Pm (20-24)/Pf (20-24)1000

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Figure 10: The map of gender structure (PhD. Albina Sinani)

The models of mortality After 1990, infant mortality saw a decrease (14.95), whereas at national scale

33. The main factors that influenced this development are the health services policies offered by different state institutions and organizations. The decrease in infant mortality under one year old constitutes a positive tendency for the increase of the age average prolongation indicator342 at a region scale and in the rural area. Up to 1989, the age average prolongation in Gjirokastra region was 72 years whereas in the districts of Gjirokastra, Permet and Tepelena was 72.7, 72.2 and 71.1 respectively. After 1989, as a result of the scaling down of infant mortality, the age average prolongation increased. In the Mediterranean and east-European context the average longevity (the age average prolongation) was 74.26 years, at a national scale it was 72 years and at region scale it was 73.78 years. The increase of hope of life constitutes an important target. The number of deaths per 1000 inhabitants, since 1950, had been decreasing, from 10.6 per 1000 inhabitants to 5.3 in year 2000. Table 2: City-village changes between age average prolongation and infant mortality

342

Misja 1987, p116: (Z=73.327-0.04834V).

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Average

Difference city-country

expectancy Region Gjirokastra Prmet Tepelena 89-94 94-99 99-04 89-04 The models of birth-rate In the period between the last two censuses, the increase in birth-rate reached a level that was close to European standards, immigration takes place at a large scale and has strongly marked the age pyramid, external immigration changed a lot the balance among the regions of this area. In the last period (2001) the birth-rate at prefecture scale is 2.13 children per woman (at a national scale 2.47). This sudden scaling down is explained by the increasing scale in the use of contraceptives as well as the large scale immigration of young people at a stage of reproduction. The scaling down of synthetic fertility coefficient was considerable since 1960, where the levels were 4.1 children per woman. This scaling down was rapid during the last decade: by the mid 1990s up to 2001 birth-rate saw a loss -37.3%. According to the 1990 Registry Office figures, in the rural area, the number of births per 1000 inhabitants was 25.0, whereas in 2000 this indicator amounted to 11.5 per 1000. Part of this scaling down of births was caused by changes in the type of marriages. The average age of getting married mounted for females in 23.8 years as well as for males in 29.2 years. Low natural growth is shown in the municipalities of Dropull i Poshtem (3.71), of Dropull i Siprm, Zagorie, Pogon and Ballaban (2.93. Whereas for mortality the transition period is coming to its end, for birth-rate the transition period is still under process. 0.2 -0.1 -0.29 0.02 -0.19 -0.81 -0.52 -0.45 0.01 0.02 -0.03 0.06 0.71 -0.42 0 0.56

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Figure 11: The map of the natural growth Albina Sinani)

Figure 12: The net migration map (PhD.

The immigration process Since 1990, the negative rural population increase has been a result of

immigration, mainly the external immigration at a large scale, which has been the main factor to the changes happening to the rural population. Comparing the data about the number of population in Gjirokastra region according to 2001 census figures343 and according to the Registry Office figures there is a difference of 56587 inhabitants (population included in the process of immigration inside and outside the country). According to INSTAT, in the 1989-2001 periods, the number of the region internal immigrants was 17098, so the number of the external immigrants was 39489, who constitute 25.3% of the general number of the 1989 population (mainly the young male element). The immigration movements have lead to some loss of population-a problem having direct consequences in the rural development of the south part of the country. According to INSTAT, during the 1989-2001 periods344, 6.8% of the countrys total internal immigration was made up by the region of Gjirokastras immigrants (towards the prefectures of Tirana with 44.6%, of Vlora, Fier, Durres and Berat).
343 344

INSTAT, General population and house census 2001, Population of Albania in 2001, 2002. Migration in Albania, 2004, p13-16.

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Table 3: The course of internal immigration in Gjirokastra region during the 1989-2001 periods Name Progress of pop. Net migration Mal es Fem ales Balance of net inner migration In according 89 % to

Years

1989-2001 7 6 5 1744 -35 6 7 -

S. migr. -

In % every year

Gjirokastra region

4316 27.

13.6

-14.1

1441 2

-9.2

-0.8

Gjirokastra district Prmet district Tepelena district

1172 17. 7 2

1.3

498

0.8

0.1

1399 35.

22.6 25.2

-23

6118 8792

-15.4

-1.3

-26.5

-17.6

-1.5

Source: Elaboration of the data of registration 1989, 2001. Immigrants remittances constitute an important means to the social-economic development of the rural area of Gjirokastra region, to the relieving poverty, to supporting investments and modifying the style of rural living. For 2004, the region of Gjirokastra was the first, at a national scale, concerning immigrants remittances per family (35634 euros/family on the average)345.

345

The Immigrants and Remittances, p45.

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The size of family After the political transitional period, the size and the structure of the family has been

the decrease of the number of rural families and their members. The foreign emigration, the lessening of marriages (from 8.4 to 4.9) and the increase of divorces (from 0.7-1.0) have had an impact in the decrease of the rural family composition. Since the general registration in 1989, the size of family has become to decrease. In 2001, the rural population lived in 15730 families: with an average of 4.3 members per family from 4.9 in 1989. The city families are smaller than those in the villages: 3.8 to 4.3 persons per family. There is detected a bigger concentration in the families with up to 2 members (19.6% and 17.9%). In a district level, the families with the largest number of members (above 6 members), are present mostly in the communes of the district of Tepelena (26.7%), Lazarat (32.5%) in Gjirokastra and Deshnica (30.5% in Permet). The decrease of the family size, the break of patriarchal frames, the increase of the 65-year group are an evidence of the affiliation of the characteristics of the rural families in the region with those of Europe-consequence of the great influence of emigration and big contacts with the emancipated world. The process of the pass from the multi-couple families to single-couple or doublecouple families has reached the climax; however, the patriarchal family environment is felt even these days in the remote rural parts of the region. This happens because the privatisation of the family property (dwellings, farmland etc,) after 1991 (Law 7501), identified the family as the base economic and produce unit, such causing the livening of the traditional norms. The divorces in the rural area have increased from 0.7 in 1989 to 0.9 in 2004. There has been an increase in the number of divorces per 1000 marriages in 167. According to the education level, the greatest number of the divorces happens among the couples with 8-year school education, with the highest value in the district of Permeti 63.3%, whereas according to the years of marriage in the year 1989 has been within the couples of 2-year marriage (60.7%) and in 2004 in within the couples of 5-year marriage (55.3%). The economic crisis has greatly enforced the existing tendencies; however, it is difficult to differentiate them from one another. The data elaborated in the above tables, show the bias towards the demographic growth of

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population or towards aging, which are almost inevitable. Their diversity reminds us that the future, whatever it is, is much more insecure than before. Figure 13: The family map (PhD. Albina Sinani)

Figure 14: The Average annual increase (PhD. Albina Sinani)


80 60 40 20 0 -20 -40 -60 Gjirokastra region 62.1 -37.9 1 Gjirokastra district 63.4 -36.6 0.8 Prmeti district 58.4 -41.6 0.7 Tepelena district 65.3 -34.7 1.4

Natyral increase Migrating balance The average annual increase

Suggestions : To draft convenient and sustainable strategies to soothe poverty and to encourage the regional economic growth. The infrastructure to be improved by creating new job possibilities; increase of the incomes; perfection of the medical service towards the rural population.

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To soothe away the migration phenomenon and restrain this rural urge by investing in having a socio-economic sustainable development. To draft certain economic policies giving more space to local, public and private authorities. To draft demographic policies concerning the local migration of rural areas and to protect the urban life features and bright rural traditions, being seriously endangered by mass migration and settlement full of dispute over social and property conflicts.

Conclusion: The rhythm of the rural population change in Gjirokastra region has been a fast one. The rural aging population is accompanied by a young sparse population and an old dense one. Since the end of 1980, the decrease of rural birth has lessened gradually the large and middle families. The family size has been decreasing, simultaneously being accompanied with a smaller number of children. The rural rural area of Gjirokastra region is affected by a mass of local migration (mainly towards Tirana and Durrs) and by migrants going abroad (mainly towards Greece) identifying a widening gap among the pyramids of the young rural population. It is also identifying a sharp contrast at the index of rural density with a loss of 54% of its population. The wide fluctuation of rural population has immediately affected the density and aging structure of the economically active population, with disastrous consequences for the future.

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References: Albania, Viewpoints on population 2001: General population and house census: INSTAT 2004. Brxholi, A, Changes in the geography of the population of the Vjosa-Ionian Sea region: Demographic Study: Tiran, 1987. Dumani, B and Stringa, A, Elements of the demography. UNFPA: Population and development: Tiran, 1997. INSTAT, Elaboration of the Registry Office Data 2001. Gjirokastra 6: Tiran, 2004. INSTAT, General population and house census 1989: Tiran, 1991. INSTAT, General population and house census 2001. 2001: Population of Albania: Tiran, 2002. Lole, Dh, Prmeti until 1912: Tiran, 2000. INSTAT, Migration in Albania: Tiran, 2004. Misja, V, Vejsiu, Y and Brxholi, A, Population of Albania. Demographic study: Tiran, 1987. Sheri, F, Encyclopedia Dictionary of the Demography. UNFPA: Tiran, 1997. The Centre of Economic and Social Studies. Emigration of the intellectual elite from Albania during the transition period: Tiran, 1999. UNDP, The strategy for the development of the region of Gjirokastra: Tiran, 2005.

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UDC No. 323.1(496.5):325.25(73:=18)

The role of the Albanian Diaspora (in the U.S.) on the Declaration of Independence of Albania Rudina Mita, Phd
University of Elbasan Aleksander Xhuvani, Albania

The fall of the Albanian League of Prizren and the very difficult economic situation forced hundreds and thousands of Albanians to flee outside the borders of Albania and even further than that, outside the borders of the Ottoman Empire. Most of them migrated to Romania, Bulgaria, Egypt, Russia and the USA, countries where the former old colonies of Albanians could be found. Taking into consideration the difficult and severe conditions of Albania, in the context of the national development movement and the implementation of its platform for the development of the Albanian education and culture, an important role at the time was played by the Albanian Diaspora. Its role had already escalated to the creation, joining and unification of societies and clubs. Such was the case of the creation of the Federation Panshqiptare Vatra in the United States. The activities of its representatives in the countries where the federation was active were legal and in favourable political conditions. Their political goals were quite clear and the two main objectives were the liberation from slavery and the preservation of the territorial entirety of the Albanian lands. The political activity of the Diaspora developed within so called societies or cultural clubs, which was clearly expressed in their statutes. This political activity was obvious in the press of time, according to which this was happening in order to make use (in favour of the Albanian movements) of the available legal means, as well as to avoid any possible obstacles that could come out from the governmental authorities under the pressure of the Ottoman government to the authorities where these societies and clubs were operating. The contemporary actor of these societies, Visar Dodoni later on wrote: In that time the primary objective of the Albanian desires was the birth of the Albanian literature; but the goal that was hidden behind these wishes was the national freedom...

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The achievement of the Albanian Declaration of Independence was a long important process. It was an active one especially for the political elite and prominent patriots inside and outside our country. This process was finalized with the raising of the Albanian flag in the town of Vlora, it also marked the final separation from the Ottoman Empire. In order to reach this final action a long struggle and a lot of efforts were required, both inside and outside the country. The efforts made by the European chancelleries but also thanks to the organized war of the Albanian people, especially the revolts of the years 1910-1911 up to the general one of 1912 were factors that contributed significantly. Of course it was the ongoing struggle of the Albanian poeple that played the main role in the proclamation of independence,but we can not underestimate the major contribution of the Albanian Diaspora in the context of achieving such goal. During '' the Renaissance war with "pens and guns for the mother nation", Albanians efforts never ceased abroad. Furthermore, referring to the object of this reference, we will try to present the Albanian diaspora contribution in the years 19081912. We will appreciate the contribution of "Vatra" (Nook) in the U.S., of the Albanian diaspora in Bucharest, of the colony in Braila (Romania), etc. They never ceased their actions, beginning with the efforts to establish their clubs and cultural activities during the years 1908-1909, the publication of texts and writing them in Albanian language, publishing Albanian newspapers, financial aids for school education in Albanian language etc. Furthermore, this diaspora, being consistently in contact with the echo of events in Albania, tried to make Albanians aware of the John-Turkish policy, and the difficult situation in which they lead the country by sending representatives within Albania in those moments, by giving the necessary instructions, by unmasking plenty of Albanians who were in service of the Ottoman Empire and later by taking part in organized volunteer groups, in defence of Albanian territory. Diaspora representatives participated in the final act of the declaration of independence on 28 November 1912.

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First Steps During 1908 the promotion of diaspora political activity was conducted by the club "Bashkimi" (Union) of Manastir. The call for the alphabet Congress was greeted with joy by the Albanian colonies of Cairo, of Alexandria in Egypt, of Bucharest in Romania, of Varna in Bulgaria, etc. Albanian patriots of the above respective countries expressed their enthusiasm in calling this Congress and showed their willingness to send their representatives in it. 346 On 24 August 1908 there was founded the Albanian society in Thessaloniki whose leader was Mithat Frashri. It was known as a charitable society that had no political or religious aim.347 The leader of this association would participate as a delegate in the Congress of Elbasan, as a representative of the society of Thessaloniki.348 On 8 September 1909 a conference by Mr. Abdyl Ypi was held in Thessaloniki Club, who by using a clear and sweet language pleased the listeners by telling what Albanians are. He confessed about the meanness and mistake that the Turkish bring by encouraging division among Albanian people. During those 500 years Albanians helped the Ottoman Empire, they protected it against the enemies. The Ottoman government made mistakes by sending in Albania officials who did not recognize Albanian customs. Albanians should not sit and expect the world to do things for them. People should try themselves to unify in order to open schools, and become aware of the fact that only with the help of its language can the nation make progress at the same pace as the other ones."349 More specifically lets stop at the activity of the Albanian diaspora in the U.S. With the arrival of Hyriet there seemed to appear a green light for the Albanians, because now they seemed to enjoy the freedom of their language. Such thing is
346 347 348 349

Korca Newspaper, Korc,year 1909. Liria Newspaper, Sofje, year 1909. Liria Newspaper, Sofje, year 1910. Dielli Newspaper, year 1909.

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expressed even by the Albanians living in America, especially in the newspaper "Kombi" (Nation) which was published in Boston at that period of time. This newspaper, on 21 August 1908, wrote that the proclamation of the constitution, was an act that pleased Albanians and made them happy because now they would be able to open schools in their own language.350 On 15 February 1909 the association known as Besa-Besn" (Faith) in Boston released its first edition "Dielli" (The Sun), whose first editor was Fan Noli. In the lines of this press there was said that: " Dielli (The Sun) was an organ of the national Albanians who were seeking self-government for Albania351, while the newspapers motto was Albania for the Albanians. This association, along with its organ, became the centre of the Albanian national movement of the Albanian diaspora in America. On 2 May 1909 the association of Kora people known as Arsimi (Education) was established in Hudson Mass. It was lead by Nikolla Dishnica. Later on its center was settled in Boston. This association aimed to have a particular influence on the educational and cultural development of the town of Kore, which would be finalized with the opening of a philological university in this town. This association declared that it had nothing to do with politics. In the same month ( on 6 May 1909 ) in Kembric Mass there was founded the association "Prparimi" (Progress). It was a continuation of the association "Patriotic Brotherhood of Dardha" founded in 1906. Its purpose, just like the purpose of many other associations founded in America at that period of time was the transmission of knowledge among Albanians, through the publication and free distribution of books in Albanian language. With the efforts of Besa-Bes association there were gathered many aids for the Normal school. 1 In terms of aids, the association "Malli i Mmdheut (with its center in Jamestown in the USA) donated $50 to the Prparimi association for the Normal school.352 During 1910, in terms of aids collection for the Normal school, Dervish Beu from Elbasan, asked the director of Dielli (Sun) newspaper to try to gather aids for him. Among many other things in this newspaper, there was also written that the Director of the Dielli (Sun) newspaper agrees with Besa-Bes association, with Fan S. Noli and
350 351

Dielli Newspaper, year 1910. Dielli Newspaper, year 1911. 352 Dielli Newspaper, year 1912.

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with all the other well-known patriots living in America, who need to be honoured for the opening of the Normal school in Elbasan. Unfortunately the aids were rare, in one week there were gathered up to $100. The director of Dielli newspaper was greatly surprised by this donation coldness of Albanians. He even organized conferences so as to find out the real purpose of this indifference. And this is what he learnt: There were two things that the Albanians of America disliked in the Congress of Elbasan. Firstly no American delegate was invited in the Congress, as if they had no real importance, at a time when their aids were greatly welcomed. The second thing that the Albanians of America disliked was the fact that this Congress elected as vice-chairman that person who dared to call a dirty thing our 500-year-old flag, the flag of our grandparents, the flag of our immortal Scanderbeg. However, the director of Dielli (Sun) newspaper went on saying that the Normal School would not surrender and give up because of the mistakes of the Congress. According to him the institution.353 However, during 1910 the association "Malli i Mmdheut" would offer help for the Normal School. 354 Albanians of Planters Hotel Co., answered positively to the call of Dervish Beu from Elbasan. They made a small list and provide donations (an amount of $132) for the Normal School. Donations were also offered by the Albanians living in Worchester, an amount of $113.355 A major concern for many Albanian patriots wherever they were within the country or abroad, was the policy being followed by John-Turks, which was completely different from their expectations. This concern was particularly evident in the national rally held at the Phoenix Hall, in America, with the participation of Albanians from different locations. The leader of this rally was the chairman of Besa-Bes association who emphasized: "These rights are in danger today, but they are in greater danger even tomorrow. We are in danger because the John-Turkish by fiercely imposing Turkish language to the Albanians, by introducing waking their fanaticism through Islam, by
353 354

Normal School should become and would become a national neutral

Liri e Shqipris Newspaper, Sofje, year 1911. Edwin Jacques, Shqiptart, Kart e pend 1995, p.335. 355 Sh. Demiraj, K. Prifti, Kongresi i Manastirit, Tiran 1978.

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keeping the country in poverty, by forcing Albanians deny their nation, by sending the strongest Albanians die as soldiers in Yemen etc, John-Turkish bit by bit are weakening and destroying our nationality. Our rights are in danger tomorrow, because if tomorrow brings the destruction of Turkey, it will find us unprepared. In order to be prepared for this, we need to tell the truth to our co-patriots, they need not to be lied by the tales and forget their nationality, but they should manlike do their duty. 356 During the year 1909 several important steps were taken by the associations operating in the USA for the unification of theirs into a single one. The board of the association Malli i Mmdheut showed its concern about the unification in Dielli (Sun) newspaper. Their concern was immediately followed by the concern of BesaBes association which loudly called for the organisation and gathering of all the other Albanian associations of America association of Saint Gjergj. In the wake of these efforts a series of rallies were organized in various urban centers where Albanians lived. Therefore rallies were organized in Boston on 1 November 1909, in Hudson Mass on 12 November 12 1909, in Bideford on 18 November, in Nejtik on 25 November, in Worchester on 1 December, in Sauthbric on 14 December. Their goal was the expansion of the Albanian patriots for the revival of the Albanian National Movement. These efforts showed their first results with the merger of the two associations "Besa-Bes" and "Malli i Mmdheut" in 1910. This was an action that would make possible the further expansion of this union .The issue of unification became more evident during 1911, when the national Albanian movements against the Turkish which had already exploded in Albania needed to be supported more than ever. In Dielli (Sun) newspaper there was written: "Today we need unification, we need to live with honour, and we need to join for our country! People need to search unification, they need to call in a single voice viva union .
357

created up to that period of time such as:

Prparimi(Progress), Arsimi (Education), Fatbardhsia as well as the church

For this purpose Kristo Floqi was appointed to plan the unification program of the Albanian associations operating in America which would be checked and approved by all the associations.
356 357

V. Duka Shqiptart n rrjedhat e shek. XIX, Panteon 2001. Eqrem bej Vlora, Kujtime II,Shtpia e librit dhe e komunikimit 2001.

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Therefore a joint meeting was arranged on 24 December 1911 in Boston. All associations were required to send their representatives in it. There was also arranged that in this meeting there would be discussed Kanunorja of Central Committee, the first article of which emphasized that its primary goal was the protection of the Albanian nations interests, among which the liberation of the nation. In this first meeting Fan Noli was elected as the chairman who rejected that position. Instead of him there was elected Kristo Floqi. The meeting decided to elect a commission of four members, who would represent the leaders of the Central committee. The meeting also decided that each village where Albanians lived, would send one representative in Boston, and together these 10 or 12 members from Boston would form the Central Committee. 358 The initiative of "Besa-Bes" association would be followed by the initiatives of the other associations too. In this initiative there were joined the associations "BesaBes, Malli i Mmdheut, and Prlindja. The latter one, whose chairman was Denis Kamburi, was in Jamestown. In 1911 the rally which was organized in Boston ended up with a meeting being organized in Boston on 17 March at 3 oclock. The speeches in this meeting were held by many patriots, among them we could mention Fan Noli, who spoke about the atrocities of the Turkish army. While the patriot Orazio Iriani ( professor ) by introducing facts managed to declare worldwide the efforts of Albanian diaspora in America, showing that it does exist and work for Albania. Among many other things he showed that "Turks are Turks, and Albania should never expect any good things from them. Ahmet Rizaj called in the middle of the parliament that there were no Albanians, but Myfit Beu responded" efendm var var " !. Some time ago a Turkish newspaper wrote that there were no Albanians in America, but what about these people here, what are they gathered for? 359 In the years 1910 and 1911, Noli held important fiery speeches before the association Besa-Bes, in support of the Albanian rebels in Kosovo, by raising up their fights and their bravery led by Isa Boletini and Idriz Seferi in the battles of ernaleva and Kaanik.

358 359

Stavro Skndo Zgjimi kombtar shqiptar, Toena. Instituti i Historis, Lef Nosi-Dokumente historike1912-1918, Tiran 2007.

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The associations Besa-Bes, Arsimi, Dallndyshja,Malli i Mmdheut, Shoqria Kombtare and Mirbrsi were pro the unification until the beginning of march 1912. While on 28 April 1912 American diaspora reached the final outcome which was the unification of all associations into a single one by creating the Albanian Federation "Vatra". This union was named like this due to the high authority of this federation among the Albanians of America and its chairman Fan Noli. In May 1912 Vatra Federation made efforts to create a national newspaper. 360 As it can be seen the final goal of the Albanian diaspora in America was already realized. What was required now was putting in practise Vatras program, as well as the direct active participation during the events of 1911-1912 which would end up with the declaration of independence. As far as the aids for the general Albanian rebellion were concerned, there was an article published by Dielli newspaper titled The call of rebellions among migrating Albanians in which was written: In the sister newspaper Freedom of Albania in the first page of its final edition, we sang with remarks a call of aids to our rebellion brothers in Kosovo and Malsia. Although we havent taken such a call, we will make efforts to do our duty as much as we can. Our brothers should know that their calls will always be welcomed in our hearts. They should never lose their hopes because blood never becomes water.361 In August 1912 there were clearly displayed on the pages of Dielli newspaper the efforts of the Albanians living in America to topple John-Turkish power. This is what there was written on the pages of this newspaper: "Through Dielli newspaper we managed to wake up Albanian patriots, we could boast for having taken a little part in the efforts against Jonh-Turkish power, but a big part in the strengthening of our national ideal. The John-turks know this better than we do. As a proof we keep a word of theirs TANIN which used to say that the centre of the Albanian Committee is probably located in America.362

360 361

Sejfi Vllamasi, Ballafaqime politike n Shqipri, Tiran 1995. Sknder Luarasi Tri jet,Migjeni 2007. 362 Ismail Qemal Vlora, Kujtime, Toena 1997.

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The aid of "Vatra" Federation was manifested even in the creation of a group of immigrants, Albanians of America, dressed in red and black uniforms, wearing hats on which there could be read the words "Freedom or Death. This federation was of the opinion that in moments in which Albania was, in order to maintain territorial entirety the most valuable thing to be done was the preservation of their status under the Ottoman Empire, so as not to be destroyed and torn from the neighboring states. According to them: "Albania is an ongoing volcano, fire burnt and destroyed it from all sides, Montenegro and Serbians in the north, the Greeks in the south and Bulgarians in the east. Before breaking the imperial army they want to break the territory. Since we are people seeking for peace we are going to answer our nations call, we are going to do whatever we can to protect the honour of Albania. Following the protection of Albanian national issue, another big rallywas organized in Boston on 17 November 1912, in which Konica called for sending telegrams to the Super Powers and European chancelleries. There would be emphasized that if the separation of Albania was allowed, great rebellions would be organized in the Balkans In the act of the declaration of independence on 28 November 1912 there were also present members of the Albanian volunteers coming from America. Not only this, but based on the testimony of Qamil Panariti, regarding the origin of the flag raised in Vlora, he said that the flag had been brought from Boston in Corfu in 1911, by members of the association Besa-Bes, who had expressed their desire to take part as volunteers in the Albanian uprising of that year. The flag was brought to Albania by Marigo Pozio, who had wrapped it round her body so as to escape Greek customs control. Vatra Federation in those years became like a government in migration. Its leaders were welcomed by the official authorities, as representatives of Albania. With their excellent speeches, they defended Albanian people and the Albanian issue. Fan Noli often left because of being in charge of important tasks. In the autumn of 1912, when the Nation was in danger of fragmentation, Fan Noli was sent in London by Vatra Federation. Fan Noli greeted Ismail Qemali for the declaration of independence from the British capital, London.

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UDC No. 316.74(496.542)"18"

Educational and cultural traditions in Elbasan during the nineteenth century 1912 Msc. Sokol Gjevori
University of Elbasan Aleksander Xhuvani,Albania

Abstract: In XIX century the city of Elbasan was one of the most important cities of

Albania. Geographical position and development of this city gave him a special significance being considered as a powerful source of culture. In Elbasan during this period were established a number of patriotic club such as: Bashkimi, Vellazeria, Aferdita. In these clubs and patriotic societies held an important cultural activity and education of the city. Request to the Ottoman Empire as: the teaching of the Albanian language in schools, opening of schools etc. were the continuation of claims submitted by the League of Prizren in 1878. A good job of spreading the albanian language in Elbasan made and members of clubs. Besides cultural educational movement that characterized the city during this period, played an important role publication activity of the patriots of the city. At this time the press became the main panel of the Albanian political and social thought. Newspaper Tomorri became reflective of social, economic and political opinions Albanian intellectuals. In this newspaper have been reflected the role of social groups in the national movement. Congress of Elbasan and opening of the high school named Normale had an importance in the educational movement of the city. Many personalities gave their contribution not only to political developments but also in educational developments among which were: Aleksander Xhuvani, Lef Nosi, Emin Matraxhiu etc.

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Introduction: Elbasan is one of the most important regions of Albania, presented as a city with a physical and geographical position more favorable, which significantly influenced in its further development not only local but also national level. In the first decades of the twentieth century, Elbasan was presented with features of a city of Oriental-Balkan style, which constituted the economic base of small artisan production. Craftsmanship, as centuries ago presented specialized. It was obvious expression of the cultural heritage of this city. Among the types of crafts of this period were : weaving, working of copper, making the vessels of everyday use, woodworking etc.. These products of high quality sold in the markets closed, called "Bezistane" and evaluated for their workmanship, not only within Albania but also outside its borders. Besides the development of handicrafts, the region of Elbasan distinguished for religious tolerance. This phenomenon was shown not only on the local level (Region of Elbasan) but also at the national level. The belief was part of the conscience and soul of people, and national level during this period there were four religious beliefs which were Muslim, Orthodox, Catholic and Bektashi. But never in any case, the presence of many religions has not been an obstacle on the relationships that exist between these religious communities, but rather, what more Albanians united despite beliefs were common interests to serve the nation and country, especially in difficult moments. Religious tolerance has always been an important aspect of social and cultural progress in the region of Elbasan. The community of this city is always interested in education development. Many families, failing schools in the city, sent their children to be educated in other countries outside their homeland. I. During the Renaissance period 1830-1912, Elbasan was a center where efforts to develop social emancipation, political and cultural. One of the representatives of the Albanian Renaissance was Konstandin Kristoforidhi. He was a linguist with more authority in the nineteenth century, who set cultural values of national education. Kostandin Kristoforidhi was born in Elbasan. In 1847 attended high school Zosimea of Ioannina. In 1857 he went to Istanbul where drafted a 'Momerandum
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Albanian language. " Has lived in many places in Tunisia, Malta, Istanbul, Albania. In 1867-1868 he published two books for learning the Albanian language for students. Together with works.363 The activity of this linguist from Elbasan can not separate from the activities of other personalities, who develop their activity in the political, social and economic fields. In 1890, Losh Papamihali patriot, his shop had turned into a secret place where writing and reading taught in Albanian language. Muc Shqiptari, at the time of detention of learning Albanian language by the Ottoman Empire, was secretly distributed to citizens of this city newspapers and magazines in Albanian. Dhimiter Pina teacher, taught students to whom he had confidence, Albanian language. Occurred under the pressure of political and military of the Ottoman Empire, Albanians were forced to study in foreign schools, in Turkish and Greek language. In the years 1908 - 1912 national cultural movement characterized by an increased level of its organization, which was reflected in the creation of a whole network of cultural and political clubs. In the region of Elbasan, was established a number of clubs as the clubs Bashkimi, Vellazeria and Aferdita. In these clubs develop a national educational cultural activities, impacting positively on the continuity of the development of the Albanian National Movement. Request to the Ottoman Empire as: the teaching of the Albanian language in schools, opening of schools etc. were the continuation of claims submitted by the League of Prizren in 1878. Collapse of the absolutist regime of Sultan Abdul Hamiti ( july 23, 1908)364, encouraged the Albanians to engage the opening of schools in Albanian language. Fejzulla Guranjaku, was teacher at the Turkish school, he taught his students the Albanian language, although this action was very dangerous. It was his patriotic contribution that enabled the opening of the first school in Elbasan in the Albanian language, August 2, 1908. Magazines 'Albania' wrote: All newspapers have written about events that took place in Elbasan in January. A young man had opened a private school in Elbasan,
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Naim Frasheri became the founder of Albanian-fiction for children.

Dictionary of Albanian language, Albanian language grammar are two of his major

Instituti i Studimeve Pedagogjike:Historia e arsimit dhe e mendimit pedagogjik shqiptar,Tirane 2003 Akademia e Shkencave e Shqiperise:Historia e popullit shqiptar,vell.II,Tirane 2003

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where he invited fellow citizens learn to write and to read their native language, but Turkish authorities captured and put him in prison, the courageous teacher. 365 Clubs established in the city of Elbasan became centers for the spread of the Albanian language. in October 1908 opened a school where teaching approximately 70 students each evening. A good job of spreading the Albanian language in Elbasan made and members of clubs. Clubs that were established in Elbasan in 1908 were two "Bashkimi" and "Vellazeria", which were established as a result of the efforts of patriots of this city. While the clubBashkimi in Elbasan was formed with the initiative of some patriots of this city by September 8, 1908. Newspapers of this period for opening the club's "Vellazeria" in Elbasan wrote: On April 18, opened the clubVellazeria , to spread the Albanian language in the city and its surrounding villages. Officially opening it was celebrated with great joy by the people.366 The population of the city helped collecting financial aid for clubs. Members of clubs and societies established in the following years, were: Emin Haxhiademi, Josif HaxhiMima, Simon Shuteriqi, Hasan Mezja , Alush Sarai, Qemal Karaosmani , Dhimitr Deljana, Fot Papajani , Myrteza Demeti, Ahmet Dakli , Peter Dodbiba etj. Albanian brothers. Have set up here in Elbasan, a cultural society named 'Aferdita'. The aim of this society is to create a musical band, through which to spread the patriotic feelings of the Albanians367 Also, efforts were made to spread the Albanian language in the villages around the city, as in the province of Shpati. Hysen Ceka teacher went to province of Shpat , and the shepherds learned to write and read Albanian. Clubs and patriotic societies choose their chairmanship with the rotation model. New elections were held in October 1909, and the head of the club Bashkimi solved Hostopalli Hysen. Monitoring of these clubs and societies become a supervisory board under the direction of Aqif Pasha (Elbasani). Besides cultural educational movement that characterized the city during the nineteenth century until the end of 1912, played an important role publicistic activity of
365 366

Magazine Albania vitit 1897, nr.1, fq.15 P.Kita : Elbasani n luft pr lirim. Tiran 1974 367 NewspaperTomorri, Elbasan, 1910, 20 prill, nr.5.

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the patriots of the city. Tomorri , was the first newspaper in the city of Elbasan. On March 10, 1910 began publishing the newspaper "Tomorri" temporary political - literary, published three times a month. It was not coincidence edition of this newspaper, if we consider that the activities of intellectuals publicist had started earlier in the press abroad. Tomorri "as the first organ of the press in Elbasan, will leave traces in the history of the press of this city for the importance that had. The emergence of the periodical press in the early twentieth century was the necessity of time. Educational and cultural traditions of Elbasan served as incentive to the emergence of the periodical press. As a catalyst in the emergence of the press in Elbasan served the intellectual environment of this city. To mention are also some other factors such as economic development of this city, and active participation of its representatives in the political life of the country. In its activities, the Elbasan`s periodic press reflected the struggle and effort that made the Albanians for the development of education and culture, securing political independence and subsequent efforts for the establishment, consolidation and democratization of the country's life. Personalities of this city as Lef Nosi, Aqif Elbasan, Salih Ceka being active participants in the political arena trying to secure a rapid contact between their political ideas and the wider mass of people. It was led by Lef Nosi who was also its publisher. Based on newspaper program main goals were: strengthening of national sentiment and support for high school which would prepare teachers of Albanian language. ... will try to awaken the national feelings of the Albanians, for their civilization... 368 Although it appeared for a short time Tomorri newspapers quite positively influenced the emergence of other publications of the periodical press in the city of Elbasan. It played an important role in the political, educational, cultural of the country, and influenced the further development of the press in Elbasan. It contained political articles as: How are brought against the Turks and Albanians behave ? The enemies of the Albanian language are enemies of the Constitution Balkan alliance Constitution and the rights of Albanians etc., literary articles as Tomb of lovers translated by Simon Shuteriqi, historical writings as Life of Pyrrhus Aleksander
368

NewspaperTomorri, Elbasan, 1910, 10 mars ,nr.1

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Xhuvani , Who are the Albanians - Kristo Dako . Collaborators active and continuous in this newspaper, were some of the most prominent personalities of the time as : Luigj Gurakuqi, Aleksander Xhuvani, Kristo Dako, Simon Shuteriqi etc. Names of those personalities is added the name of Emin Matraxhiut, in 1921, will publish a newspaper Shkumbini .369 Historical importance, the development of education and culture of this city, was the organization of the Congress of Elbasan and the opening of high , named Normale. National Congress was convened in September 2, 1909 and continued the proceedings until September 9. It is one of the most important events in the history of culture and national education. Initiators in organizing this Congress became Albanian Thessaloniki club, led by Mithat Frasheri. This club, March 25, 1909, designated as the site for the development of the proceedings of the congress, the city of Elbasan. The organization of this congress was not random events, but was important during these processes, political, ideological, educational, cultural, which was accumulated years ago and whose culmination was this congress. In an article, Simon Shuteriqit, wrote among other things: We want to open our schools, but unfortunately, teachers who are able to undertake this mission missing... is necessary, the opening of a school to prepare teachers... 370 In Congress, attended by 35 representatives from 28 clubs and patriotic societies. Among the delegates, were more teacher and Albanian National Movement activists, as : Orhan Pojani, Mithat Frasheri, Dervish Biaku, Refik Toptani, Sevasti Qiriazi, Gjergj Qiriazi, Kristo Dako, Ahmet Dakli, Simon Shuteriqi etc. 371i Congress held its meetings in the building of Bashkimi club. Chairman of the congress was Dervish Bicakciu and Mithat Frasheri was elected vice. Most important problems discussed in this Congress were those of development and organization of national education. Participants in this Congress focused their discussions on these problems:

369 370

Petro Kita: Emin Matraxhiu,Tiran, 8 Nntori,1973 Newspaper Tomorri Elbasan, 1910 ,10 qershor, nr.10 371 Kujtim Bevapi: Normalja n fokus te bashkekohesise, Elbasan,1999

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Opening of a high school, for teacher training Creation of a center that would deal with the budget and the organization of Albanian schools. Creation of a center that will manage the budget and to care for the organization of Albanian schools. To better coordinate the activities of national clubs, and to design and adopt a joint program for them.

The works of this Congress was reflected in the Albanian media, assessing the spread of open learning Albanian and Albanian language primary schools were made a necessity for the development of national education. In this Congress, the act of decisions were approved, consisting of 15 points, but three of them were more important. According to the newspaper "Union of the Nation" (Bashkimi i Kombit) the essence of the Congress were three decisions: high school opening Normale creating a society,Perparimi, as the central educational society the Manastir club defined as the central club372ii

The decision for opening in December 1909, a high school in the city of Elbasan, is the first point of decisions. This high school had six classrooms and prepare teachers for primary schools in the Albanian language. In accordance with the second decision, in the town of Korca central educational society was founded. Decisions of the Congress of Elbasan became known inside and outside Albania, which is evidenced by domestic and foreign press. From the numerous articles in newspapers highlight : What we expect from Congress of Elbasan Liria (Freedom) newspapers373iii, newspaper "Lidhja Ortodokse"( Orthodox League) makes propaganda and calls for keeping Congress in Elbasan374iv, newspaper Dielli (The Sun), was published in Boston of the United States of America, which largely reflected the decisions of Congress 375v. From the numerous difficulties in the country, just three months after the Congress, on December 1, 1909, in Elbasan was opened the high school, the first in Albania, which
372 373

Newspaper Bashkimi i Kombit Manastir, 1909, shtator,23, nr.1 Newspaper Liria, Selanik, 1909, 25 korrik 1909 374 Newspaper Lidhja Ortodokse,Kor, 1909,17 gusht 375 Gazeta Dielli, Boston, 1909, 1 tetor

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began teacher training that were necessary for the opening of schools in the country. Its opening was the finalization of numerous efforts, the Albanian patriots who tried to develop education and progress of the Albanian nation. On December 2, in high school began teaching. In the early days in school were enrolled 50 students 376vi, but after three months the number of students reached 150, coming from different regions of Albania as , Peja,Gjakova, Prizreni, Vuiterna, Mitrovica, Gjilani, Presheva, Shkupi, Dibra, Shkodra, Elbasani,Tirana , Kavaja,Permeti. Contribution to the progress of the learning process at school gave the Albanian nation personalities Luigj Gurakuqi, Sotir Peci and intellectuals from the city of Elbasan Aleksander Xhuvani, Peter Dodbiba, Demetrius Paparisto, Hasan Mezja, Simon Shuteriqi etc. First director of the school was chosen Luigj Gurakuqi. In Italy, the newspaper 'La nazione Albanese', directed by Lorekio (of Albanian origin) wrote that: They decided to open a school, as in all civilized countries377 Decisions of the Congress of Elbasan and the formation of society Perparimi in the town of Kora, directly influenced the expansion of the Albanian national schools. During the year 1909 - 1910, the number of schools and courses in Albanian language and national education was extended to all Albanian territories, from Mitrovica, Kosovo to southern parts of the ameria. After the Congress of Elbasan was opened about 25 new schools in the Albanian language.378 Contributions to the opening of Albanian schools in Kosovo gave especially patriotic Hasan Pristina, Bajram Curri, Nexhip Draga. Attempts to open Albanian schools made the Albanian clubs in Diber, Struge, Durres etc. In these years of education in Albania began the stage of development, with many difficulties and obstacles, which were part of the political, economic situation in Albania. Conclusion: Albanian national movement during the Renaissance, 1830 - 1912, has been movement for political independence, for opening of schools in the Albanian language and cultural emancipation of the Albanian people. An important role, have played and
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Arkivi Qendror SHteteror,Fondi Nr.3,Dos.53, p.1. Newspaper La Nazione Albanese,Catanzaro,1909,15 tetor,nr.19 378 Instituti i Studimeve Pedagogjike:Historia e arsimit dhe e mendimit pedagogjik shqiptar,Tirane 2003.

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patriots of the city of Elbasan, being activated in the event of important political, educational and cultural in the country. Efforts of the Patriots were associated with the spread of education and national content. Historical legacy in this period characterized by efforts elbasan`s patriots who did not stop for a moment their efforts to engage the region of Elbasan and the patriots of this region in the revolts of the years 1910-19111912 until reaching the final goal, the Albanian declaration of independence on November 28, 1912. This event marked the final separation of Albania from the Ottoman Empire.

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