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«A thesis submitted to the Department of Political Science and International Studies of the University of Birmingham for the degree of Doctor of ...»

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Nevertheless, there are some important differences between these two fields in terms of both the types of borders configured and the potential role of the Commission in their configuration. These differences are crucial in light of the goals of this research and thus, I examine Commission discourse in these two policies separately. In distinction to border controls where the measures undertaken overall configure physical (territorial) borders, in the free movement of people, the overwhelming majority of measures concern functional borders because they regulate issues such as access to the labour market or the welfare state. Contrasting with the intergovernmental origins of cooperation on border controls, issues falling within free movement of people have been part of the EC since the Treaty of Rome. Therefore, on free movement of people the Commission is better placed to overcome the limitations it has faced on border controls issue, which puts it in a better position to transcend internal EU borders. In this chapter I interrogate whether this is the case in practice. I argue that the Commission has been successful in setting up trends that 127 overcome current internal borders but that this still only reconfigured rather that transcended them.

In order to develop this argument, I have divided the chapter into five sections. The first one aims to provide a background for the following discussion. I look into the major developments related to free movement of people. In the second part, I establish the main articulations in Commission discourse that configure borders and present and analyse the articulations in Commission discourse that contribute to decreased salience of internal borders. In the third section, I look into how Commission articulations contribute to the emergence of a new border at the outer edges of the EU. In the fourth section, I focus on the silences and contradictions within Commission discourse on free movement that contribute to the reconstruction of some internal borders between the member states and analyse the reasons for their occurrence.

4.2. Major Developments in the Field of Free Movement of People and Main Themes in Commission Discourse As I emphasised earlier, the free movement of people has its origins in the Treaty of Rome. It refers to the abolition of any discrimination based on nationality between workers of the member states regarding employment, work conditions, and remuneration. The free movement of people implies the rights to take up employment in other member states; to move freely within the territory of the member states for work purposes; to stay in a member state other than the workers‟ own for employment purposes. 1 As such, from its inception free movement of people was related to functional borders. Therefore, it is a complex matter and encompasses a variety of policy areas, such as social security, professional qualifications, or immigration. However, while the first two are issues that have been dealt with at the supranational level since the first decade of integration, the third one has gained prominence only in recent years. Furthermore, traditionally immigration has fallen within the remit of JHA. As I explain in greater detail in section 4.4. it was only it the

1 Article 48, Treaty Establishing the European Economic Community, p. 51

128 last decade that immigration issues started to be linked more consistently with free movement.

The complexity of free movement, where questions often form an interrelated web with problems that nominally fall outside of the scope of the policy on the free movement of people, precipitates a situation where articulations from different discourses (i.e. border controls and free movement of people) configure borders in a similar way. An example of such a situation is the construction of different categories of people under existing EU law (EU nationals and TCNs) that enjoy different rights in relation to their freedom to move in the EU.2 Thus, in this chapter, as well as in the previous chapter, the different categories of people constitute a major division line along which the analysis is organised. In other words, I will examine policy proposals of the Commission that relate to both EU citizens and TCNs and scrutinise whether they lead to decreased importance of borders/ construction and reconstruction of borders for Union nationals and/ or TCNs.

As I also pointed out in the previous chapter, in the period after the adoption of the SEA to the present a very important shift has occurred in the understanding of which EU nationals are entitled to free movement in the EU. Before the Treaty of the EU was adopted in 1992, a narrow interpretation to the entitlement to free movement prevailed and it was only conferred upon workers.3 It was only with the new integration impetus in the second half of the 1980s that the conditions were established for expanding the scope of the provisions to cover more groups of people. However, importantly in distinction to the development of border controls this evolution was within the EC.

Both the gradual extension of the groups of people covered and this falling within the remit of the EC can be illustrated with the following Commission articulations.

According to its White Paper on Completing the Internal Market, the issue of the free movement of people is still explicitly linked to their status as economically active 2 A more detailed analysis of how this is achieved is provided in Chapter Three, Border Controls. See section 3.2.2.





3 For studies that make the same point see Gallya Lahav, Immigration and Politics in the New Europe – Reinventing Borders (Cambridge: Cambridge University Press, 2004), esp. pp. 38-51; Hans-Werner Sinn, „EU Enlargement, Migration and New Constitution‟, Economic Studies, 50: 4 (2004), pp. 685-707; Andrew Geddes, Immigration and European Integration – Towards a Fortress Europe? (Manchester: Manchester University Press, 2000), p. 44 129 individuals in the member state to which they have moved: “The Commission considers it crucial that the obstacles which still exist within the Community to free movement for the self-employed and employees be removed by 1992 … the Commission intends to make the necessary proposals which will eliminate the last obstacles standing in front of the free movement and residence of migrant Community workers.”4 The wider interpretation became possible with the TEU, which established EU citizenship to all nationals of the Union‟s member states. According to the Maastricht Treaty: “Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States …” 5 This however, meant that provisions had to be put in place for allowing non-economically active citizens (students, pensioners, etc.) to be able to enjoy the rights conferred upon them in their status as EU citizens. This is clearly evident from the Commission‟s position that Community legislation on free movement of people has to be made clearer and restructured around the notion of Union citizenship. 6 This development considerably enlarged the scope for Commission action in terms of the fields in which it could now make proposals. This can be exemplified with Commission proposals, such as the Green Paper on the obstacles to transnational mobility7 in education, training and research8 and the Report on the implementation of the Directives on the Right of Residence. 9 All in all, the main fields that were involved in guaranteeing the free movement of people were provisions for the harmonisation of social protection, recognition of professional qualifications, and the terms regulating the freedom to reside in a member state other than the national‟s own. Despite this expansion of the applicability of the right to free 4 European Commission, Completing the Internal Market, COM (85) 310 final, 14.06.1985, p. 27 5 Article 8a, The Maastricht Treaty – Provisions Amending the Treaty Establishing the European Economic Community with a View to Establishing the European Community, p. 5, available at http://www.eurotreaties.com/maastrichtec.pdf, accessed on 10.01.2009 (emphasis added) 6 European Commission, Report on the Implementation of Directives 90/364, 90/365 and 93/96 (Right of Residence), COM (1999) 127 final, 17.03.1999, pp. 2-3 7 It has to be pointed out that Commission documents very often refer to “mobility” for movements within the EU, which as a term is usually employed for movements within a country and not for cross-state migration.

For this distinction see for example Franck Dűvell, „Migration, Minorities and Marginality: New Directions in Europe Migration Research‟ in Chris Rumford (ed.), The Sage Handbook of European Studies (London: Sage, 2009), pp. 328-346, p. 330 8 European Commission, Green Paper – Education- Training – Research. The Obstacles to Transnational Mobility, COM (96) 462 final, 2.10.1996 9 European Commission, Report on the Implementation on Directives 90/364, 90/365 and 93/96 (Right of Residence), COM (99) 127 final, 17.03.1999 130 movement of people, some scholars continue to argue that it: “is still economically linked to a great extent.”10 This suggests that EU nationals that do not meet certain economic criteria are very likely to still have their freedom of movement within the EU curtailed. In the last section of this chapter I will engage in greater depth with this argument in order to show how it is articulated in the Commission discourse and to show that such enunciations have contributed to the reconstruction of the EU‟s internal borders.

As far as TCNs are concerned, their rights to free movement within the EU are regulated in two main interrelated contexts. Firstly, as workers and residents in a member state of the Union and secondly, under the emerging regime of the EU common policy on immigration. The foundations of the latter: “have been gradually established under the Tampere and Hague Programme” 11 and encompass issues of legal and illegal migration, Schengen, visas and the management of the EU external border and the external dimension of the policy. 12 The main trend in Commission discourse on the rights of TCNs as workers and residents in a EU member state is along the lines that it is necessary to guarantee to the greatest extent possible equal treatment between TCNs and EU citizens. In order to do this, the Commission has had a: “long-standing policy to improve the legal status of third country nationals residing in the Community.” 13 This is to be achieved through integration policy: “based on non-discrimination, equal treatment, rights and duties [that] allows immigrants to contribute more to society …” 14 Furthermore, in 2003 the EU Regulation on 10 Sergio Carrera, „What Does Free Movement Mean in Theory and Practice in an Enlarged EU?‟, European Law Journal, (2005), 11: 6, pp. 699-721, p. 721. Similar claim is made in Hans-Werner Sinn, „EU Enlargement, Migration and New Constitution‟, Economic Studies, 50: 4 (2004), pp. 685-707, p. 700 11 European Commission, Towards a Common Immigration Policy, COM (2007) 780 final, 5.12.2007, p. 3 12 Ibid., pp. 3-7. These are reiterated in a number of speeches of EU officials, such as Antonio Vitorino, Migratory Flows and the European Labour Market: toward a Community Immigration Policy, SPEECH/01/334, 9.07.2001; Antonio Vitorino, Migration as a Resource to be Managed for the Mutual Benefit of Sending and Receiving Countries, SPEECH/03/417, 18.09.2003; Franco Frattini, Legal Migration and the Follow-up to the Green Paper and on the Fight against Illegal Immigration, SPEECH/05/666, 07.11.2005; Benita Ferrero-Waldner, Migration, External Relations and the European Neighbourhood Policy, SPEECH/06/30, 24.01.2006; Franco Frattini, Management of Migration Flows, SPEECH/06/539, 27.09.2006 13 European Commission, An Action Plan for the Free Movement of Workers, COM (97) 586 final, 12.11.1997, p. 12. For an overview of the measures undertaken see Antonio Vitorino, What EU Strategy for Integrating Migrants, SPEECH/04/340, 30.06.2004 14 European Commission, Towards a Common Immigration Policy, COM (2007) 780 final, 5.12.2007, p. 2 131 coordination of social security systems between the Union member states was extended to cover the rights acquired by TCNs as well. 15 Thus, the Commission undertakings in the field of free movement of people have undergone significant development in the last two decades. Partly this is a result of the constitutional changes in the EU that have been put into place by successive Treaty amendments (such as those of Maastricht and Amsterdam). 16 As the former European Commissioner for Justice and Home Affairs Antonio Vitorino declares: “Aside from Article 3 (c) of the Treaty of Rome which talks about „the abolition … of obstacles to freedom of movement for persons, services and capital‟, there was nothing in the Treaty of Rome as a precursor to EU powers in asylum and immigration.” 17 As I explained in detail in Chapter Two, it was only in the second half of the 1980s that the push towards the establishment of the internal market in the EC laid down the foundations that enabled these

particular developments in the following years. As Commissioner Vitorino summarises:

“The impetus came from the concept of „Europe without frontiers‟ so well articulated by Jacques Delors …” because it required: “creating common rights at European level for bona fide migrants whether for protection or economic purposes.” 18 This opened the avenue for European integration to proceed in a number of new fields as a repercussion of the need to ensure the proper functioning of the internal market. As Commissioner Vitorino summarises: “It made no sense to have an internal market for free movement of goods, services and capital without free movement of persons. And from that sprang the evident need, … expressed at Maastricht, to legislate for common policies.” 19 Therefore, overall, over the years there has been a clear trend towards widening the scope of the rights of free movement – from free movement of workers to free movement of people in general. This has been accompanied by an increase in the number of 15 See for example, European Commission, The Community Provisions on Social Security – Your Rights when Moving within the European Union (Luxembourg: Office for Official Publications of the European Communities, 2005), p. 40 16 A significant part of these changes relates to third pillar issues, which are spelled out in greater detail in the section dealing with the evolution of cooperation under Schengen in the Chapter on Border Controls.



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