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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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4.5.1. Contradictions in Commission discourse The fundamental contradiction in Commission discourse that leads to a reconstruction of internal borders in the EU is between the interpretation that can be given to its stated aims on the free movement of people and some other articulations on the matter. According to the White Paper on Completing the Internal Market, one of the main goals is to ensure: “that the market is flexible so that resources, both of people and materials, and of capital and investment, flow into the areas of greatest economic advantage.”137 Therefore, as the former Commissioner responsible for social policy Flynn declared: “The challenge for the Union is to break down the remaining barriers to complete free movement and to create real European mobility.”138 These, as well as the major Commission terms that configure borders, which I discussed earlier (European employment/ labour market or Community-wide labour market) imply that as a result of integration efforts a common employment area will emerge. Importantly, these formulations suggest that the envisaged free movement will encompass all people in the territory of the EC/EU. This means that differentiations, such as nationality or income 137 European Commission, Completing the Internal Market, COM (85) 310 final, 14.06.1985, p. 7 138 Padraig Flynn, Free Movement of People in Europe – Equality between Nationals and non-Nationals in Social Security, SPEECH/94/122, 10.11.1994, p. 3 (emphasis added) 164 eventually should not matter and everyone should enjoy the right to seek employment or circulate for other reasons anywhere in the Union without facing lengthy and tricky legal and administrative obstacles. As we saw in the previous chapter, the Commission has regarded the creation of such a Community-wide market as one that functions as equivalent to a national market.139 However, as I already pointed out in section 4.3., in other instances, Commission documents articulate free movement of people in a different way. For example, a few pages later in the same White Paper is declared that: “The Commission … considers that Community citizens should be free to engage in their professions throughout the Community, if they so wish, without the obligation to adhere to formalities which, in the final analysis, could serve to discourage such movement.” 140 Thus, there is a clear ambiguity in Commission discourse on the issue of who should benefit from the free movement of people. The inclusive articulations in the founding documents and formulations imply that overall the anticipated end result is an EU in which all the different categories of people are allowed to move freely. Such a conclusion is supported by the trend in Commission documents discussed in section on 4.3. to promote expanding and more inclusive interpretations of the beneficiaries of the right to free movement of people. 141 However, if that is the case, the above reference to Community citizens contradicts the achievement of free movement of people.

This contradiction has led to a reconstruction of internal identity and functional borders in the EU, which is evident in the discourse of the Commission. The border transformation affects both EU citizens and TCNs but the Commission‟s contribution for 139 See footnote 41 of Chapter Three on p. 94 in this thesis.

140 European Commission, Completing the Internal Market, COM (85) 310 final, 14.06.1985, p. 27 (emphasis added). For other articulations in Commission documents that make it clear that free movement in the EU refers only to EU nationals see for example European Commission, Follow- up to the Recommendations of the High Panel on the Free Movement of Persons, COM (1998) 403 final, 01.07.1998, p. 1a; Padraig Flynn, Free Movement of People in Europe – Equality between Nationals and non-Nationals in Social Security, SPEECH/94/122, 10.11.1994, p. 3; European Commission, An Action Plan for the Free Movement of Workers, COM (97) 586 final, 12.11.1997, p. 3; European Commission, Green Paper – Education- Training – Research. The Obstacles to Transnational Mobility, COM (96) 462 final, 2.10.1996, p. 10 141 Another example of this trend in Commission discourse is its promotion of the idea for ensuring benefit entitlement for unemployed EU nationals undergoing training in another EU member state. For an illustration of this see European Commission, Green Paper – Education- Training – Research. The Obstacles to Transnational Mobility, COM (96) 462 final, 2.10.1996, p. 16 and p. 26 in particular 165 each of the two categories of people has been different. The recreation of internal EU borders for Union nationals is a result of the absence of social welfare provisions at EU level due to the sensitivities of the member states on this matter. Hence, in a similar way to the reconstruction of internal borders on border controls, on the issue of free movement of EU citizens any recreation of internal borders in Commission discourse is a result of established patterns of integration, which the Commission is not in a position to overcome.

Therefore, the reconstruction of this particular internal border is reproduced and reemerges through intertextuality in Commission discourse, rather than being actively created by it.

One example of such reproduction that creates a contradiction in the Commission discourse is the possibility to restrict the free movement in the Union for some EU nationals. According to the Commission: “At present, the Community provisions on social security do not yet apply to all persons moving or staying within the European Union or the European Economic Area.” 142 The document specifies that those not covered by Community provisions are persons not covered or no longer covered by a national social security scheme and who are not or are no longer considered members of the family of economically active or non-active persons.143 This is an obstacle to the free movement of people because as the next example makes clear, residence in another member state for periods longer than six months depends on sufficient social security provisions. Therefore, people lacking it can potentially be excluded from exercising their right to free movement in the EU. This issue is of great importance given the capacity of welfare states to mediate matters of inclusion and exclusion. 144 As some scholars argue, welfare provisions and social assistance without a doubt are some of the crucial “instruments for controlling improving or limiting the free movement of people.”145 In this context, the major example of reconstruction of the internal borders in the EU for the free movement of Union nationals is the current requirements for residence in 142 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. 9 143 Ibid.

144 See for example Stefano Bartolini, Restructuring Europe – Centre Formation, System Building and Political Structuring between the Nation-State and the European Union (Oxford: Oxford University Press, 2005) 145 Ceyhan, Crowley, King cited in Jef Huysmans, „The European Union and the Securitization of Migration‟, Journal of Common Market Studies, 38: 5 (2000), pp. 751-777, p. 759 166 another member state. As was shown above, with the adoption of the Treaty of the EU and the introduction of Union citizenship, there has been a significant increase in the categories of EU-nationals that are entitled to free movement, with pensioners or students acquiring this right together with economically active individuals. Furthermore, according to a proposal for a Council Directive, subsequently adopted in March 2003: 146 “The Commission‟s intention is that the movement of citizens between Member States should be on much the same basis as when citizens change their residence or job within their own Member State.”147 Despite that, if the aim is to allow all citizens of the member states to move freely within the Union, there is still a category of people that the documents of the Commission make clear will not be able to benefit from this right. According to a Commission proposal for a Directive from 2001: “Persons exercising the right to free movement should not … become an unreasonable burden on the public finances of the host Member State during an initial period of residence; it is therefore planned to retain a system whereby the exercise of the right of residence for Union citizens for periods in excess of six months remains subject to the requirement that such citizens be engaged in a gainful activity or, in the case of those not engaged in gainful activity, that they have sufficient resources and comprehensive sickness insurance in the host Member State …”148 Furthermore: “Prior to acquisition of the right of permanent residence, it is a matter for the host Member State to decide whether it will extend social assistance provision or sickness insurance coverage to persons not engaged in gainful economic activity, or maintenance grants to Union citizens coming to study on their territory.” 149 146 See http://ec.europa.eu/prelex/detail_dossier_real.cfm?CL=en&DosId=164059, accessed on 23.11.2008 147 European Commission, Proposal for a Council Directive Concerning the Status of Third-Country Nationals who are Long-Term Residents, COM (2001) 127 final, 13.03.2001, p. 3 148 European Commission, Proposal for a European Parliament and Council Directive on the Right of Citizens of the Union and Their Family Members to Move and Reside Freely within the Territory of the Member States, COM (2001) 257 final, 29.06.2001, Preamble, point 9. Similar requirement of having sickness insurance and sufficient resources to avoid becoming a burden on the social assistance systems of the host member state for EU nationals exercising their right to free movement is articulated in 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, p. 5 149 European Commission, Proposal for a European Parliament and Council Directive on the Right of Citizens of the Union and Their Family Members to Move and Reside Freely within the Territory of the Member States, COM (2001) 257 final, 29.06.2001, Preamble, point 19 167 Thus, these documents articulate people who do not have sufficient resources or comprehensive sickness insurance as a category of EU nationals that can face restrictions on their right of free movement in the Union for periods exceeding six months. Arguably, this is only one issue that remains to be resolved, so that a complete freedom of movement for EU citizens is attained. In that respect, significant progress towards de-bordering has been made in the course of European integration on this matter. Nevertheless, as the above analysis shows, currently there is still an important category of EU nationals that face restrictions on their free movement in the Union. Therefore, I regard the above articulations as a clear contradiction to the overall goal of creating an area of free movement that other Commission documents referred to above promote. This is the first way in which Commission articulations reproduce limitations in current EU legislation that contribute to the reconstruction of internal borders in the Union. Such a reading of the configuration of borders in this discourse is supported by the arguments of other studies that find that: “the poor are indirectly excluded from the privilege of their free movement rights and excluded from the privileges granted by the EU status.”150 This is because such people will rely on social assistance and currently in the EU there is no system under which they can receive it in another member state different from their own.151 There is another way in which these enunciations recreate internal divisions in the EU. As discussed in detail in Chapter Three, they talk about “host member state”, thus bringing back the issue of the “building blocks” of the Community. This undermines the perception of the existence of a common area and instead underscores the internal divisions that still exist and which are marked by internal, national, borders. In distinction to border controls, where Commission articulations contribute to the reconstruction primarily of territorial borders, in the free movement of people, the enunciations on EU nationals concern mainly functional borders.

150 Sergio Carrera, „What Does Free Movement Mean in Theory and Practice in an Enlarged EU?‟, European Law Journal, 11: 6 (2005), pp. 699-721, p. 705 151 See Elspeth Guild, „The Legal Framework‟ in David Cesarani, Mary Fulbrook (eds), Citizenship, Nationality and Migration in Europe (London: Routledge, 1996), pp. 30-53, p. 35 and Hans-Werner Sinn, „EU Enlargement, Migration and New Constitution‟, Economic Studies, 50: 4 (2004), pp. 685-707, p. 700 168 Although there are still some Commission articulations on free movement of EU citizens that contribute to the construction of internal borders, these, as we have seen, apply to decreasing categories of people and situations. On the free movement of TCNs, however, the dominant principle in the EU so far has been the restriction of their freedom of circulation for work purposes. This has led to the establishment of distinctive categories of people in relation to their rights of free movement in the EU, which is in contradiction with the aims of creating a frontier-free area. Again, this is reproduced in Commission discourse.

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