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Legal and Political Aspects of EU’s Possible Visa Sanctions Against Russian Nationals

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Just a few years ago, Russia and the EU were actively engaged in dialog on a visa-free regime. Sadly, visa matters have taken an entirely differently turn within some ten years. Today, far from discussing abolishing visa requirements for all Russian nationals, some EU nations are considering a prohibition on issuing Schengen visas to Russians.

In early August 2022, the President of Ukraine called upon Western states to close their countries off to Russians, while Ukraine itself is so far abstaining from such steps.

Virtually simultaneously, Estonia’s Prime Minister and several politicians from Lithuania, Latvia, and Finland suggested that the EU stop issuing visas to Russian nationals. Previously, Polish authorities had made a similar proposal.

After Russia recognized the Donetsk People’s Republic and the Lugansk People’s Republic, several EU states, on various grounds, either restricted the issuance of Schengen and national visas to Russian national, or stopped issuing them altogether, or restricted Russian nationals’ entrance by other means. However, the EU statistics for the year 2019, the one before the COVID pandemic, indicates that the states that suspended issuance of visas in 2022, taken together, issued to Russians no more than 20% of the overall number of Schengen visas back then. At the same time, some EU member states, as part of lifting COVID restrictions, resumed issuing all types of visas to Russians already after February 24, 2022.

Since the EU has a common visa space, unilateral restrictions on visas imposed by some states will not facilitate the desired effect of the EU’s anti-Russian sanctions. Therefore, by the end of summer, proponents of greater sanctions pressure on Russia were seen discussing an EU-wide ban on issuing Schengen visas to Russian nationals.

Predictably, Moscow took a very negative view of this idea, while the European Commission and leaders of other EU member states were rather skeptical. Nonetheless, plans envisage discussing this matter at the meeting of the Council of the European Union to be held on August 31, 2022.

National measures for restricting visa issuance and entry

Alongside restricting the issuance of Schengen visas, some EU member states restrict Russian nationals’ entry. For instance, since August 18, 2022, Estonian authorities restricted entry into Estonia for Russian holders of Schengen visas issued by Estonian foreign missions. Polish authorities came up with a rather original way of restricting entry of Russian nationals. In February 2022, while lifting coronavirus-related restrictions, Poland kept in place restrictions for entry via Russian-Polish and Belarusian-Polish borders. Officially, Russian nationals are not prohibited from entering Poland, and they may enter the Republic of Poland via any domestic and foreign borders except for the Russian-Polish and Belarusian-Polish border crossings. Moreover, these are blanket restrictions, since they apply to nationals of any states crossing the border with Russia and Belarus, with the exception of those directly listed in the Order of the Ministry of the Interior of the Republic of Poland. No matter how absurd these restrictions are, they are not technically at odds with either the EU law or international law as they constitute part of anti-COVID measures where states have a broad discretion.

As for Estonia’s decision to prohibit Russian nationals from entering, this directly contravenes the EU law. Article 6 of the Schengen Borders Code establishes conditions for foreign nationals entering the Schengen space on having a travel document (passport), a visa, reason for travel, no alerts issued in the Schengen Information System, and no reasons to believe that a foreign national posits a threat to public policy, internal security, public health, and international relations. If a foreign national meets all conditions of entry, a border guard has no reason to deny entry to such a person. This norm has direct force, and Estonian authorities must comply with it.

Besides, under Article 4 of the Schengen Borders Code, all decisions on applying this code should be made on an individual basis. In other words, authorities cannot classify all Russian nationals as persons positing a threat to public policy. It means that the European Union’s law rules out blanket denial of entry to Russian nationals. It should be mentioned that the concept of “threat to public policy” has been repeatedly explained in the EU in case law and in the Union’s legislation. However, no one has ever propagated the idea of declaring an entire nation a threat to public policy.

As for individual EU member states that suspend the issuance of Schengen and national visas, such actions are dubious as regards compliance with EU law. Technically, the EU’s Community Code on Visas has direct force as it establishes the procedure and conditions for issuing Schengen visas. Any decision to deny a visa must comply with the Code’s requirements and must be well-founded (Article 32). Moreover, national legislation should envisage the possibility of an appeal. When applying the Code on Visas, law enforcement bodies must make decisions on individual basis (Article 1). However, the states that have suspended issuance of visas do not deny visas, they do not accept visa applications. In other words, these states do not conduct activities with a view to issuing Schengen visas to Russians, and the European Union cannot force them to conduct such activities since this issue comes within the purview of national governments.

By stopping issuing visas to all Russian nationals, individual EU member states violate the principles of non-discrimination and of prohibiting collective responsibility while they must comply with these principles as the EU’s members.

Prospects of a Union-wide ban on issuing Schengen visas to Russian nationals

This situation requires considering both legal and political aspects of this initiative.

Legal aspect

Technically, the EU law does not provide for such a ban. Under Article 215 of the Treaty on the Functioning of the European Union, restrictive measures may entail partial or complete suspension or reduction of economic and financial relations with one or several third countries, and also measures against natural and legal persons, groups, or non-State entities. Individual sanctions may envisage visa restrictions, yet the Union’s law does not grant the EU the option on introducing a blanket visa restriction against all nationals of a certain state. The Community Code on Visas does not contain such provisions either. Under the Code on Visas (Article 25a), the Council may, acting upon the Commission’s proposal, make the decision to toughen visa regime for nationals of states that refuse to cooperate in the field of readmission, i.e. states that posit a high risk of immigration. According to the EU’s own data, Russia is not a state with a high immigration risk. In accordance with the EU’s official statistics, Russian nationals lately have been issued the highest number of Schengen visas with the highest percentage of multi-entry visas and they also have one of the lowest percentages of visa refusals.

Additionally, a prohibition on issuing visas to all nationals of a certain state contravenes such core principles of modern democratic society as non-discrimination and prohibition on collective responsibility. For, should a prohibition on issuing visas to all Russian nationals be introduced, it may be qualified as punishment imposed on all persons without account for each citizen’s role and guilt, and international law prohibits collective responsibility. A blanket prohibition on issuing visas may also be qualified as discrimination on the basis of nationality which is prohibited by international law and the EU’s law. This is why the history of European integration has known no such prohibitions up to this day.

Political aspect

As regards the political aspect of this initiative, this step will be counterproductive in any case.

Under the guidelines on implementation and evaluation of restrictive measures (sanctions) in the framework of the EU common foreign and security policy, the EU adheres to the targeted measures principle. The point of this approach is that sanctions’ greatest effect should be aimed directly against decision-makers and persons with connections to decision-makers, and should have minimal effect on the country’s general population. If a prohibition on issuing visas is introduced, it will primarily affect regular citizens and specifically that part of the population that is to some degree connected with EU states and is fairly sympathetic to them. Supporters of visa restrictions against Russian nationals believe that prohibition on entering the EU will cause the population to become discontented with Russia’s political leadership. This prohibition, however, is more likely to induce negative attitude toward EU authorities, which will certainly be conducive to a greater escalation of tensions between the parties.

Unfortunately, even though this initiative is irrational and has no legal grounds, the possibility of this decision being adopted cannot be ruled out since the anti-Russian sanctions policy—as currently implemented—shows that the EU has repeatedly taken steps that contravene both international law and the law of the Union itself.

At the same time, the EU is fairly unlikely to adopt a Union-wide ban on issuing Schengen visas to Russian nationals. As of today, only a small group of EU member states is sternly advocating this initiative, while this decision requires consent of all EU states (Articles 24, 29 of the Treaty on the European Union) and approval of the European Commission and the High Representative of the Union for Foreign Affairs and Security Policy (Article 215 of the Treaty on the Functioning of the European Union) since they are the two parties that will need to jointly draft the restriction bill. An initiative proposed by member states remains merely an initiative until the Commission and the High Representative shape it into a bill.

So far, the European Commission is evidently in no hurry to endorse such a radical step. Besides, many EU member states are not willing to sever relations with Russia and its nationals; and some do not wish to lose Russian tourists to accommodate someone else’s ambitions. Adopting such an EU-wide ban will become a very disturbing precedent that evidences the Union’s moving away from the fundamental principles of the European integration.

From our partner RIAC

D.Sc. in Law, Professor, Department of European Law, MGIMO University; Professor, Institute of Management and Territorial Development, Immanuel Kant Baltic Federal University

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Smile Diplomacy: From Putin to Macron

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Photo:kremlin.ru

In the world of politics, what should be done when things don’t go according to plan? The answer of Talleyrand, the French politician of the 18th and 19th centuries, was simple: organize a conference!

Perhaps it is due to this lesson from the French politician and diplomat that Vladimir Putin held his conference under the title of “Economic Boom of the East” in the port of Vladivostok, and French President Emmanuel Macron is going to start his conference under the title of “Political Council”, Europe” next month in Prague, the capital of the Czech Republic.

Let’s talk about Putin first. No matter how we look at it, the course of things is not as intended. The war in Ukraine is practically frozen in a north-south line. The pitched battles, the use of heavy artillery, the high casualties, and the ever-increasing logistical problems are more reminiscent of the First World War, or even the Crimean War than modern 21st-century war.

Last week, the first sign of Putin’s desperation to fully win this war appeared. In a short televised address, the Russian president claimed that his goal was to preserve the “Russians” of the Donetsk and Luhansk regions. In other words, it has moved away from its initial portent of removing Ukraine from the map as an independent country. Is he now calling for a limited deal that would put parts of eastern Ukraine under Russian control forever, if ever? No one knows the answer to this question, except maybe Putin himself. But, surprisingly, neither Volodymyr Zelensky, the president of Ukraine, nor his American and European supporters have shown any attention to this possible retreat of Putin.

Failure in the war is not Putin’s only concern. Contrary to his claim that Western sanctions have not affected the Russian economy, it can be seen that things are not going as planned on that front either. Of course, Russia has been able to find new customers for its oil—customers like India, China, and Turkey, which have reduced their purchases from Iran and Iraq by receiving significant discounts to take advantage of the Russian auction.

However, double-digit inflation, the closure of hundreds of factories, widespread shortages of many goods, a 25 percent drop in viewership of Putin’s state television, and the flight of tens of thousands of middle-class citizens show that the sanctions are having little effect.

The Vladivostok conference was formed with the slogan “The future is from Asia”. Putin’s message was: “Asia builds the future, while the West falls.”

Of course, we heard this slogan in the 1950s, during the last years of Stalin’s rule over the Soviet Union. Stalin spoke of “Young Asia and the West of Fertut”. Today, Putin plays the same music with notes from the Tsarist Imperial Symphony added.

According to Khmiakov, the Pan-Slavist guru, Russia is a “two-headed eagle”: one head looks to the East and the other to the West.

In the beginning, the double-headed eagle was the symbol of the kings of Hayatele in Asia Minor; But after a few centuries, the Byzantine emperors usurped it. In 1471, Ivan III, Tsar of Russia, married Princess Sophia, the daughter of the Byzantine Emperor, and the symbol of the double-headed eagle was assigned to Russia. Today, Putin is bringing this symbol, which was abandoned during the Soviet Union, back to the scene.

However, an eagle facing east is nearsighted. Out of 49 Asian countries, only 17 countries appeared seriously in this game. None of the heads of Asian countries were present at Putin’s show. The highest-ranking foreign personalities were the Prime Ministers of Armenia and Mongolia. General Ming Aung Heliang, the leader of the Myanmar (Burma) coup plotters, was also present. But China was represented by Li Zhangsu, the third leader of the Communist Party. Even the leader of North Korea, Kim Jong Un, did not accept the suffering of a trip to Vladivostok. Major Asian economic powers such as Japan and South Korea, or even Taiwan, were not present.

Putin’s hope is to develop the “Eurasian” bloc, which was formed years ago to compete with the European Union, but it never got anywhere. However, even if the participants in the Vladivostok conference were to join the bloc, they would collectively account for nearly 20 percent of global GDP. Currently, almost all of them are closer to the European Union and the United States than to Russia in terms of foreign trade. Russia’s own share of trade with bloc countries does not exceed 12%.

From any angle, the Vladivostok gathering is one of those shows that are referred to as “posturing” in the diplomatic dictionary. In this show, the host appears as the leader of a large group, but in reality, there is no group. The choice of Vladivostok, which means “ruler or emir of the east”, maybe a coincidental sign of Putin’s illusions to lead Asia.

It is interesting that in Vladivostok there was no mention of the war in Ukraine. None of Putin’s entourage was wearing a T-shirt with the letter Z, and his bulletproof car did not have a Z mark.

The participants of this show undoubtedly know that Moscow is closer to Berlin than Vladivostok and whatever the underbelly of history, Russia’s national and cultural orientation is to the West, not to the East. Alexander Herzen, a 19th-century Russian writer, wrote: “Russia looks to the East to remember what dangers threaten its existence, and looks to the West to find out how to neutralize those dangers.”

Currently, Putin is not the only leader who is trying to polish his political image by playing the conference game. French President Emmanuel Macron is also busy organizing Smile Diplomacy. The Prague conference for the formation of the “Political Council of Europe” is a platform for introducing Macron as a strong European leader. With Britain mired in crisis, Germany governed by a floundering coalition government, and Italy on the brink of an election with uncertain results, Macron hopes to present France as the anchor of Europe’s stormy ship.

Macron’s failure to win an overwhelming majority in the parliamentary elections has limited his possibilities to exert power in the domestic political scene. Therefore, like many politicians in a similar situation, he turns to show his power in the foreign policy scene.

But Macron’s show, many analysts believe, will not have a better result than what Putin achieved in Vladivostok. In a sense, Macron’s show may even be harmful. Trying to prevent Turkey’s participation, under the pretext that a large part of Turkey is located in Asia, can deepen the gap between Western powers and Turkey.

Turkey’s exclusion from the Prague show could help re-elect Recep Tayyip Erdogan as president. Using an anti-Western discourse and being closer to Russia along with claiming to be the leader of the Islamic world, Erdogan is trying to distract Turkey’s public opinion from its failure in economic and social fields. In the last two decades, this is the first time that Erdogan is on the verge of an electoral defeat. Macron’s anti-Turkish stance could be a bitter irony that guarantees Erdogan’s victory.

Macron’s proposal has other disadvantages as well. First, one should ask what is the need for another “conference” in Europe. Aren’t the “European Security and Cooperation Organization” and “Council of Europe” which include all countries of the continent enough? After all, didn’t Britain leave the European Union under the pretext that it does not want Europe to participate in the regulation of London’s policies? Is the “Brexit” government willing to participate in a new grouping, with unknown goals and criteria, after leaving an established union with clear goals?

Currently, a growing trend across Europe, from Poland to France, is to move away from continental groupings. Even the European Union has lost some of its legitimacy and popularity at this time. The growing trend in most European countries is towards limited nationalism within the borders of each country, emphasis on national sovereignty, and striving for self-sufficiency. In other words, the globalism of the past two or three decades is receding and bilateral relations are becoming more acceptable.

You might say that Smile Diplomacy in Vladivostok or Prague wouldn’t hurt anyway. Unfortunately, this assessment of yours is not correct. Smile Diplomacy masks the fact that Russia and Western Europe do not currently have the ability or will to emerge from the crisis caused by war, economic stagnation, inflation, and environmental threats. Smile Diplomacy offers sideshows instead of serious policies.

Dramatic games allow Putin to mask his failure on the battlefield. On the other hand, Macron and other European leaders hide their inability to stop the war in Ukraine with the Prague show. Both sides are still dreaming of “victory”. Unaware that war never has a winner, because in every war both the victor and the vanquished will be losers in the end. Zelensky seems to think that defeat is better than surrender because it at least offers the badge of hero and martyr. On the other hand, Liz Truss, the new British Prime Minister, speaks of “victory”. The demonstrations in Vladivostok and Prague prevent these irresponsible positions from being seriously discussed.

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In a Crisis-Laden World, Serbia Should Think Green

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Countries around the globe are facing persistent economic headwinds. Trade and supply chain disruptions resulting from the Covid-19 pandemic, the war in Ukraine and extreme weather, have led to surging food and energy prices. Inflation is increasing at an alarming rate in many countries and economic growth is slowing. Policy makers around the world face difficult challenges and complex trade-offs. They need to maintain fiscal sustainability and rebuild economic buffers depleted during the pandemic; but also cater for the needs of the most vulnerable, who feel the impact of higher food and energy prices. As winter is approaching, countries in Europe are scrambling to secure sufficient energy supplies to keep homes warm and factories running. In this challenging context, the urgency of actively expanding renewable sources of energy, pursuing greater resource efficiency, and transitioning away from energy and emission-intensive industries is greater than ever.

Growth outlook

The World Bank expects global economic growth to slow in 2022 to 2.9 percent, from 5.7 percent in 2021. A small and open economy like Serbia will feel the impact of the global slowdown. For Serbia, in 2022, we project an economic growth rate of 3.2 percent, following a 7.4 percent expansion in 2021. Serbia is equally feeling the impact of rising inflation: the NBS expects an inflation of nearly 14 percent in the third quarter of this year.

Higher energy prices have put pressure on current account balances for energy importers around the world. Serbia has also been affected. Its utilities have incurred exceptionally high costs of importing electricity and natural gas on the wholesale markets. While the government has financially supported these companies, it has so far only partially passed these additional costs on to consumers.

Mitigating the impacts of the energy crisis remains the biggest challenge for the new government. Serbia entered the current crisis in a strong macro-fiscal position, but fiscal space is limited. Short-term measures to support households and small and medium enterprises will need to be targeted, time-bound, fully budgeted, and transparent.

Despite the pressures, it is essential that policymakers do not lose sight of structural reforms that would boost Serbia’s potential rate of economic growth over the medium-term, including steps to increase market competition, reform state owned enterprises, raise human capital and productivity, and improve the efficiency of public spending.

Green Serbia

Sustaining long-term growth and resilience also requires putting the ‘green agenda’ at the center of policymaking. The country can do more to increase energy efficiency and lessen the impact of pollution on the health of people and the environment. Staying ‘brown’ runs the risk of slowing down Serbia’s accession to the EU, compromising access to finance, creating trade barriers, limiting the take up of modern technology, and failing to boost productivity. Going ‘green’ would be beneficial on all these fronts. It would also facilitate the structural transformation of the economy through the adoption of new technologies and knowledge. All this will require measures to facilitate a ‘just transition’ for workers and communities who depend on polluting industries for their livelihoods.

Serbia is a signatory to the Paris Agreement under the United Nations Framework Convention on Climate Change, aiming for a climate neutral world by mid-century. The Government recently published its updated Nationally Determined Contribution under the Paris Agreement, pledging to cut greenhouse gas emissions by 2030 by 33.3 percent compared to 1990.  Accompanying plans and strategies are under preparation, but the direction of travel is clear: Serbia urgently needs to boost domestic renewable energy production, increase energy efficiency, and gradually lower dependency on fossil fuels, especially coal and oil, for power generation, heating, and transport.

The World Bank is supporting Serbia’s progress on all these fronts both through financial and technical assistance.

Op-ed originally published in Kurir daily via World Bank

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Media-saturation challenges trust in European democracy

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BY KEVIN CASEY

Media is this layer that exists everywhere in our lives’, said Dr Tanya Lokot as she explained the term ‘mediatized’ to Horizon Magazine. It gives her the title of the seven-country research project she leads from the School of Communications, Dublin City University (DCU).

‘It’s not just something we do for an hour or two.’ We are drenched in media. In our personal, work, social and family lives, media has a meaningful role to play.

MEDIATIZED EU is examining the role of media in society and how it influences people’s perceptions of the EU and the European project. It does so by analysing media discourses in the EU Member States of Ireland, Belgium, Portugal, Estonia, Hungary, Spain, and non-member Georgia.

The researchers are monitoring and assessing the media coverage and conversations which mention European democracy and the European Union in the target countries of the study. ‘We wanted to investigate how people think and form beliefs about the EU. How do people become Europeanised? What does it mean to be more European or less European?’ said Dr Lokot.

‘Putting all of these countries together and looking at how different but also how similar the concerns are among policymakers, among media professionals, among the public has been really enlightening for us,’ she said.

Public conversation

When 90% of the EU’s population have access to the internet, media is ubiquitous. TV provides 75% of Europeans with their news. Altogether, taken collectively, all the media devices in the world create something intangible, a public conversation, which enables opinions to be formed and exchanged.

‘In a way, media are co-creating the space where people come to interpret what it’s like to be living in Europe, what it means to be European, to share European values and to be part of the European Union,’ said Dr Lokot.

The first step in learning to live with our media-saturated environment is to ‘acknowledge that media, not just social media but any kind of media, play an extremely important role in societies,’ said Dr Lokot.

From the research so far, the sense is that the idea of Europe is “a constant work in progress”, and perceptions of Europeanisation are shaped by media, as well as by political elites and public opinion, Lokot revealed. There is also widespread concern about the spread of disinformation. Alongside constructive discourse, the media has plenty of room for promoting extremism and polarising views.

People in every EU country have sophisticated concerns about the risks of media manipulation. ‘They understand the connection between disinformation that is being spread by malicious actors in the media and the threat to democracy,’ said Dr Lokot.

Spiral of cynicism

Populism and media manipulation can lead to a ‘spiral of cynicism’ in any media debate. As a result, even in countries with high levels of trust in media such as Ireland, Spain and Portugal, people often don’t know where to place their trust.

‘It’s because the way disinformation works has also changed,’ said Lokot. The new type of information warfare doesn’t try to persuade or convince people, but sets out to destroy public trust. It works to convince you that ‘there is nobody here who will tell you the truth,’ according to Dr Lokot.

Generating mistrust originates with outside actors but also from within the EU at times. In this climate, people ‘stop believing that a ‘European idea’ that unites people exists, and then they become lost,’ said Dr Lokot.

‘Once you stop believing in some sort of shared values, you don’t really know what else you have in common with these people who are living on the same continent with you.’

While each country has specific topics of concern, one major new trend unites them all. ‘Until Russia’s full-scale invasion of Ukraine in February 2022, Georgia and Estonia were much more concerned with Russian disinformation than the other countries in our project,’ said Dr Lokot.

‘Since February, concern has gone through the roof everywhere.’

The disinformation campaigns targeting Estonians and Georgians, along with their Ukrainian neighbours, insinuate that they were better off under the Soviet regime, that the EU is weak, they belong to Russia’s sphere of influence and not the European community. The conclusion of that thought process is stark.

‘Now we get to the point where not only is Ukraine, for instance, being told, you’re not a European country, they’re being told you’re not a real country at all,’ she said. ‘You’re actually part of Russia and nobody cares about you if you stop existing,’ said Dr Lokot.

‘We’re seeing such escalation of disinformation narratives across the region.’

Doomscrolling

But should people exercise personal responsibility for their media activity? Consuming the news of terrible events over endless hours of ‘doomscrolling’ has been identified as unhealthy behaviour.

The constant barrage of news and disinformation hits home for Dr Lokot who is a Ukrainian native working in DCU in Ireland for the past seven years. ‘I’m Ukrainian and I’m living in the EU. So, you know, I’ve been doing nothing but doomscrolling not just since February, but actually since 2014 because my country has actually been at war much longer than just for the past six months,’ said Dr Lokot.

A constant stream of bad news is exhausting ‘and so it’s also about how we structure media diets,’ said Dr Lokot.

Might there be a need for social media companies to make their algorithms more transparent?

Businesses like Meta who own Facebook, Instagram and WhatsApp need to create a space where people can access information and exchange opinions in a healthy, constructive way, argues Dr Lokot. ‘They need to realise the impact that the media ecosystem has on people and on people’s lives,’ she said.

Online citizens

Good online citizenship where you verify sources and reserve some amount of scepticism over content is important in a democratic environment. Regulation also has a role to play with, for example, laws about transparency in political advertising.

It’s not about control or unrestricted access either. ‘We want people to understand that as citizens, they have rights, they have responsibilities, but they also have agency,’ she says.

The next step is to conduct in-depth research into the other elements of the triangle MEDIATIZED EU has identified as composed of a relationship between citizens, media, and the elites. Speaking to media editors and policy makers, as well as conducting public opinion surveys, the researchers will seek to understand the media’s role in shaping perceptions and opinions of the EU from their points of view and how everything is connected.

The research could help to inform policy makers at every level. Thinking ahead, the imaginary ideally informed EU citizen of 2035 could be living in a media environment with a more democratic flow of information – one which leaves little fertile ground for disinformation. Hopefully, ‘we will also be living in a Europe that is much less polarized than it is today,’ Dr Lokot concludes.

This article was originally published in Horizon, the EU Research and Innovation Magazine. 

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