«A thesis submitted to the Department of Political Science and International Studies of the University of Birmingham for the degree of Doctor of ...»
17 Antonio Vitorino, Migration as a Resource to be Managed for the Mutual Benefit of Sending and Receiving Countries, SPEECH/03/417, 18.09.2003, p. 2 18 Both quotations are from Ibid., p. 3 19 Ibid.
4.3. De-bordering in Commission Discourse on Free Movement of People There are a number of ways in which Commission discourse contributes towards the decreased salience of previously existing borders between the member states of the EU in the field of free movement of people. These can be classified into several major categories. Firstly, they can be dealing with the free movement of EU citizens or alternatively of TCNs. Secondly, as far as EU citizens are concerned, Commission discourse can be contributing towards the diminished importance of different manifestations of functional borders or establishing a common European identity. Thirdly, some Commission documents contain articulations that promote the idea that the temporary border for free movement of workers for the member states that joined in 2004 should be eliminated. Below I present and analyse all these articulations. What these articulations have in common is that they all relate to several main formulations, which I argue the Commission has used to promote decreased salience of previously existing borders between EU member states.
4.3.1. Main Commission articulations configuring borders These formulations are related to the major fields concerned with the free movement of people: the existing regime for workers‟ access to the labour market and the welfare state, education and immigration. In each of these areas, the Commission has articulated formulations implying the existence of a common European space. For example, as I explained in greater detail in Chapter Three, the creation of an “area of freedom, security and justice” is viewed as an important route for addressing some of the challenges raised by immigration. As I explain below, certain immigration issues have been persistently linked to free movement of people since the early 2000s. The Commission discourse also promotes the attainment of the goal of free movement of people through a 133 number of articulations concerning mainly EU citizens. In the field of education this is exemplified by the support the Commission has given to: “a variety of programmes for transnational mobility of persons who are keen to undergo training … or contribute to training activities in another Member State of the Community.” 20 Mobility is also a key term in Commission discourse on the free movement of workers in general: “Worker mobility is a key instrument for an efficiently functioning single market …” 21 Furthermore, as far as the regime for free movement of workers is concerned, there are a number of terms employed by the Commission that contribute to the construction of a common space. The most prominent of them are: “European labour market”, “a single European employment/ labour market”, “European-wide labour markets”, “the creation of an employment and work area on a Community-wide scale”. 22 These formulations are important in terms of how they configure borders. There are two main reasons why efforts of the Commission towards free movement of people should be interpreted as aimed at de-bordering. Firstly, in its discourse terms such as mobility are linked with phrases such as “united Europe” and “development of solidarity between all Europeans”. 23 Thus, the overall goal is to reduce the existing divisions between the member states. Secondly, the anticipated emergence of a common area in the EU as a result of the increased mobility is regarded as contributing towards the achievement of a single market,24 which as explained in depth in Chapter Two is premised on the idea of creating a frontier free area in the EC/EU. Below I present a 20 European Commission, Green Paper – Education- Training – Research. The Obstacles to Transnational Mobility, COM (96) 462 final, 2.10.1996, p. 1. For other references to mobility in relation to learning see for example European Commission, Recommendation on the Establishment of the European Qualifications Framework for Lifelong Learning, COM (2006) 479 final, 05.09.2006, p. 14 21 European Commission, Mobility, an Instrument for More and Better Jobs: The European Mobility Action Plan (2007-2010), COM (2007) 773 final, 06.12.2007, p. 2 22 The first three formulations can be found in European Commission, An Action Plan for the Free Movement of Workers, COM (97) 586 final, 12.11.1997, pp. 8-17. The last formulation is from European Commission, Green Paper – Education- Training – Research. The Obstacles to Transnational Mobility, COM (96) 462 final, 2.10.1996, p.1. For other references to “the European Labour Market” see for example European Commission Report, Towards a Single European Labour Market, COM (2007) 116 final, 16.03.2007 and Anna Diamantopoulou, The New Technologies and a Single European Labour Market, SPEECH/01/75, 20.02.2001 23 European Commission, Green Paper – Education- Training – Research. The Obstacles to Transnational Mobility, COM (96) 462 final, 2.10.1996, summary and p. 1 respectively 24 See for example, European Commission, Mobility, an Instrument for More and Better Jobs: The European Mobility Action Plan (2007-2010), COM (2007) 773 final, 06.12.2007, p. 2 134 detailed account of how this de-bordering is articulated in this policy area for different categories of people and analyse what types of borders it configures.
4.3.2. Free movement of TCNs Terms such as “European labour market” or “area of freedom, security and justice” promote the idea of the existence of a common space inside the EU in each particular field and that previously existing borders are less salient. Furthermore, usually when the Commission employs these terms, there are no qualifications added. Thus, they suggest that not only is the area in question de-bordered, but also, importantly, that this is the case for all the people on this area – EU citizens and TCNs alike.25 However, from time to time there are articulations that remind the reader that in fact this is not yet the case. For example, the Commission Action Plan for Free Movement of Workers reads: “Third country nationals do not currently enjoy the right to free movement under Community law, and this proposal does not imply the granting of such a right” 26; “The right to free movement of workers … gives every European citizen the right to enter the territory of any Member State in order to work or to look for work. The purpose is to open European labour markets to all EU workers …”27 Nevertheless, the Commission discourse shows obvious moves towards overcoming some of the still persisting barriers. A number of proposals contain provisions that aim at facilitating the free movement of some TCNs. This is well illustrated by the following examples. According to a Commission Action Plan, accepted with a resolution of the European Parliament in July 1998 28: “It is no longer justifiable that a worker who is covered by national security arrangements should be completely excluded from the protection offered by the Community co-ordination system simply because he or she is not 25 I. e. according to Guild, there has been much academic debate about the possibility of including TCNs into the concept of workers under the Community law. See Elspeth Guild, „The Legal Framework: Who is Entitled to Move?‟ in Didier Bigo, Elspeth Guild (eds), Controlling Frontiers: Free Movement into and within Europe (Aldershot: Ashgate, 2005), pp. 14-48, p. 22 26 European Commission, An Action Plan for the Free Movement of Workers, COM (97) 586 final, 12.11.1997, p. 12 27 Ibid., p. 5 28 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:1998:292:0102:0201:EN:PDF, pp. 44-48, accessed on 25.04.2009 135 an EU national.”29 This principle has been put into practice through signing agreements with third countries that coordinate the social security systems between the EU and the respective third country. This allows nationals of these third countries to aggregate the insurance periods they have acquired by working in different EU member states.30 Thus, these provisions follow the logic applied a few decades earlier when the free movement of Community workers had to be implemented. However, now the aim is to extent the current provisions on coordination of social security benefits to cover not only EU nationals but also TCNs that move between different member states. 31 This facilitates movement between EU member states for TCNs through removing previously existing legal and administrative barriers that are impeding it. In their place they establish new structures that make it much easier for TCN workers to preserve their social security benefits acquired through work in various EU member states.
Another way in which Commission discourse on free movement of TCNs promotes decreased importance of borders in the EU is via the provisions regulating the access to the member states and their labour markets for certain categories of TCNs. The two most prominent examples to date are the status of long-term TCN residents32 in a EU member state and highly qualified TCN employees. 33 On the issue of the status of long-term residents, the position of the Commission is that: “there should be a common status for long-term residents, so that all third-country nationals residing legally can acquire it and enjoy it on much the same terms in all the Member States … For the sake of certainty as to 29 European Commission, An Action Plan for the Free Movement of Workers, COM (97) 586 final, 12.11.1997, p. 12 30 See for example European Commission, Proposal for Council Decision on the Position to be Taken by the Community within the Association Council Created by the Euro-Mediterranean Agreement Establishing an Association between the European Communities and their Member States, of One Part, and the Republic of Tunisia, of the Other Part, with Regard to the Adoption of Provisions on the Co-ordination of the Social Security Systems, COM (2007) 788 final, 11.12.2007 31 For a general overview of the current system of social security coordination see http://ec.europa.eu/social/main.jsp?catId=26&langId=en, accessed on 28.08.2009 32 Prior to the official Commission proposal on this issue, it commissioned a report on the legal status of TCNs in the EU member states. On the basis of the report its authors published an article. See Kees Groenendijk, Elspeth Guild, „Converging Criteria: Creating an Area of Security of Residence for Europe‟s Third Country Nationals‟, European Journal of Migration Law, 3: 1 (2001), pp. 37-59 33 European Commission, Proposal for a Council Directive on the Conditions of Entry and Residence of Third-Country Nationals for the Purposes of Highly Qualified Employment, COM (2007) 637 final, 23.10.2007 136 the law governing third-country nationals, it is essential that acquisition of the status should not be left to Member State‟s discretion where the conditions are actually met.”34 To that end, the Commission has proposed to harmonise the conditions for conferring and withdrawing long-term resident status granted by a member state as well as the rights on which long-term residents enjoy equal treatment with EU nationals. Furthermore, according to this proposal, TCN long-term residents will enjoy the right to reside in a member state different from the one that conferred them the status.35 The Council formally adopted this proposal in November 2003.36 In a similar way, the proposal for the conditions of entry of TCNs for the purposes of highly skilled employment 37, which was adopted by the Council in May 2009 38, argues that the attractiveness of the EU for this category of people can be enhanced only through Community action and can be implemented only if there is a common system for admitting such workers. The aim is to ensure common rules for admitting this type of workers and that they enjoy the same rights throughout the Union. Furthermore, in drastic distinction to the existing system in other fields of employment, this proposal envisages the possibility of the TCN to move from one member state to another. 39 Thus, both these proposals provide for facilitating the free movement of highly-skilled or long-term resident TCNs within the EU through the removal of previously existing legal and administrative barriers. In turn this contributes to the establishing of an area of free movement of people. Furthermore, the tools employed in Commission discourse are the establishment of harmonised rules at EU level for regulating the free movement of the categories of TCNs concerned.