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For example, the Green Paper on Economic Migration talks about “Preference for the domestic market”.152 Under the goals of the SEA this should imply the inclusion of all TCNs. Nevertheless, in the document the Commission employs the Council‟s more restrictive definition, according to which: “Member States will consider requests for admission to their territories for the purpose of employment only where vacancies in a Member State cannot be filled by national and Community manpower or by nonCommunity manpower lawfully resident on a permanent basis in that Member State and already forming part of the Member State’s regular labour market.”153 As a result, different categories of people in relation to their ability to move within the EU for employment purposes are constructed. The references to “national” and “Community” manpower establish these as the two categories of people that can benefit of a right of free movement in the EU. These two types are in effect juxtaposed to two other kinds of people: TCNs in general and the long-term resident TCNs. The latter two, apparently do not enjoy a right to move freely in the EU for employment purposes because the Community preference principle only allows them to take up employment in their member state of residence. Such articulations contribute, to the emergence of new identities.
152 European Commission, Green Paper on an EU Approach to Managing Economic Migration, COM (2004) 811 final, 11.01.2005, p. 6 153 Council Resolution of 20 June 1994 cited in Ibid (emphasis in the original) 169 At the same time, the definition of Community preference contributes to the construction of national internal functional borders between the EU member states through its provision that only non-Community long-term resident in the member state in question can attempt to fill a particular position on this member state‟s labour market. As already discussed, this brings back the importance of the Union‟s constitutive entities, the member states, through putting the accent on them. Therefore, references to “the member states” and the meaning given to the Community principle in Commission documents on free movement of people are contradicting the goals of the SEA. They are working against the successful achievement of the formulated targets required for the establishment of an area for free movement of people in the EU.
In recent years, however, the Commission has adopted some documents that challenge this principle of restricting the free movement of TCNs. For example, the Green Paper on Economic Migration explores whether the Community Preference principle should be granted to TCNs already present in a member state.154 This can be interpreted as an attempt of the Commission to overcome Council objections to allowing TCNs to move freely for labour purposes. This attempt of the Commission is further illustrated by the proposals on the rights of long-term residents and on the conditions of entry and residence of TCNs for work purposes. According to the former: “The Commission considers that full integration also entails the right for long-term residents to reside in other Member States …”155 Therefore, the proposal provides that: “A long-term resident may exercise the right of residence in the territory of Member States other than the one which granted him the status, for a period exceeding three months …”. 156 The latter, does not make a distinction between the type of economic activity because it deals with the conditions of entry and 154 Ibid.
155 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. 8 (emphasis added) 156 Ibid., p. 36 (emphasis added). As I pointed out earlier in the chapter, this proposal has already been adopted by the Council. See http://ec.europa.eu/prelex/detail_dossier_real.cfm?CL=en&DosId=196320, accessed on 23.11.2008. For the opinions of the Council see http://europa.eu/rapid/pressReleasesAction.do?reference=PRES/07/253&format=HTML&aged=1&language= EN&guiLanguage=en;
http://europa.eu/rapid/pressReleasesAction.do?reference=PRES/08/250&format=HTML&aged=0&language= EN&guiLanguage=en, all accessed on 23.11.2008 170 residence of (all) TCNs for the purpose of paid employment and self-employed activities.157 That is why according to Guild, this attempt by the Commission was characterised by a uniform approach that applies to all types of economic activity. However, it did not manage to secure acceptance and had to be withdrawn. 158 Despite this setback in 2007 the Commission adopted another proposal that provides TCNs with the possibility to move within the EU for work purposes after fulfilling certain criteria. According to the proposal on the conditions of entry and residence of TCNs for highly-qualified work: “After two years of legal residence in the first Member State as holder of an EU Blue Card, the person concerned … shall be allowed to move to a Member State other than the first Member State for the purpose of highly qualified employment …”159 The articulation of highly-skilled TCNs as the category that is envisaged to benefit from freer movement in the EU is in synch with the perception of the Self analysed above.
Given the open acknowledgement in Commission discourse that the EU will require increased volumes of legal migration, it is over highly-skilled TCNs that it is most likely for the EU decision-making institutions to be able to reach an agreement. Such interpretation concurs with the argument of Guild who also points out that in this second attempt to promote greater freedom of movement in the EU for TCNs, the Commission has adopted a more piece-meal approach. It has abandoned the earlier more comprehensive method and has divided the issue into sectors.160 In this respect the Commission Blue Card initiative is a very good example of it successfully161 employing cultivated spillover and acting as a policy entrepreneur by trying to find ways for securing the adoption of its preferred position. This Commission articulation clearly breaks with the principle of restricting the movement of TCNs and 157 European Commission, Proposal for a Council Directive on the Conditions of Entry and Residence of Third-Country nationals for the Purpose of Paid Employment and Self-Employed Economic Activities, COM (2001) 386 final, 11.07.2001 158 Elspeth Guild, „EU Policy on Labour Migration – a first Look at the Commission‟s Blue Card Initiative‟, CEPS Policy Brief, num. 145, November 2007, p. 1 159 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, Article 19, point 1 160 Elspeth Guild, „EU Policy on Labour Migration – a first Look at the Commission‟s Blue Card Initiative‟, CEPS Policy Brief, num. 145, November 2007, p. 1 161 As pointed out above, footnote 38, the proposal was recently adopted by the Council.
171 instead advances a position that is much closer to the de-bordering aims of the SEA.
Nevertheless, all Commission proposals discussed here contribute to the transcendence of the two main types of internal borders only partially. Therefore, they still configure borders ambiguously. On the one hand the references to “member states” in these proposals persist, thus recreating national internal borders. On the other hand, internal borders beyond the national borders of the member states are constructed because this discourse leads to border transcendence only at the expense of creating distinctions between different types of TCNs (long-term vs. not long-term; highly-qualified vs. low skilled). As a consequence, functional and identity internal border in the EU will only be reconstructed again instead of being abolished completely.
Despite that, the challenge that these Commission articulations pose to the established principles shows a different contribution of the Commission in the reconfiguration of internal EU borders in comparison to these examined in section 3.4.
While on border controls, as I argued, Commission discourse has by and large followed the established solutions, which through intertextuality are reproduced in its discourse, on the issue of free movement of TCNs for work purposes, the Commission has managed to advance a position that is different from the established pattern. This puts in the position of setting up the trend rather than following it, which are distinctively different roles.
4.5.2. Absences from Commission discourse As with the previous sections, the absences from Commission discourse on free movement of people can be classified as related to EU citizens and TNCs. These silences lead to the reconstruction of internal borders in the Union due to the Commission inability to overcome objections from the member states. If the aim is to establish a common area of free movement, certain conditions should be put in place. However, currently, not all of them are reflected in Commission discourse on the issue. Therefore, the silence on certain issues means that for the time being at least they will not be enacted in the EU. This makes it impossible to fulfil completely the goal of creating a space within which people can move freely.
172 The first major silence in Commission discourse on free movement of people is related to the position on the role of member states on migration of TCNs. For example, according to Franco Frattini, Commission proposals on migration: “fully respect the division of power with Member States which will remain solely responsible for the actual numbers of labour migrants admitted onto their territories.” 162 Commissioner Vitorino declares that: “the establishment of common conditions for the majority of Member States, will facilitate the admission and the integration of those migrants who are needed to take up jobs in the country concerned.”163 These articulations make the acknowledgement that member states will retain their primary position on legal migration, which contributes to the reconstruction of the national internal EU borders. Therefore, if the aim is to establish an area of free movement of people, the Commission should articulate a position that enables the transcendence of any internal dividing lines that may persist. An example of a Commission articulation that clearly does not leave any space for member states reconstructing internal borders is the Commission position on how the area without internal frontiers is to be achieved. As I explained in the previous chapter, on this matter, the Commission has argued that it is necessary to go beyond simply easing border controls and instead abolish internal frontier controls altogether.164 At present the Commission has not articulated such a radical position on some important aspects of the free movement of people.
For example, the so-called “EU Blue Card” initiative is still based on the condition that the TCN spends a required amount of time in his/ her first member state.165 Thus, the starting position is still not that highly-qualified TCNs (which as we have already seen the EU is keen to attract) should face no internal obstacles altogether. Such articulation is missing from the Commission discourse. This is an important silence in Commission 162 Franco Frattini, Enhanced Mobility, Vigorous Integration Strategy and Zero Tolerance on Illegal Employment: a Dynamic Approach to European Integration Policies, SPEECH/07/526, 13.09.2007, p. 3 163 Antonio Vitorino, Migratory Flows and the European Labour Market: towards a Community Immigration Policy, SPEECH/01/334, 9.07.2001, p. 5 (emphasis added) 164 European Commission, On the Abolition of Controls of Persons at Intra-Community Borders, COM (88) 640 final, 07.12.1988, p. 5 165 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, Article 19, point 1 173 discourse, which obstructs the creation of a common zone for free movement of people and instead contributes to the reconstruction of internal EU borders. This provision does not completely eliminate one of the reasons identified by Commission discourse as contributing to the lesser attractiveness of the EU for highly qualified workers in comparison to other leading economies. It does not comprehensively transcend the lack of a cross-border dimension of national immigration policies of the member states, which hinders the possibility to move to another member state for work purposes and obstructs the efficient use of the labour force in the EU.166 It is as a result of Commission reluctance or inability to address this silence in its discourse that some articulations leave TCNs out of the picture. For example, in its Paper on the Internal Market it is made clear that: “the Commission intends to make the necessary proposals which will eliminate the last obstacles standing in the way of the free movement and residence of migrant Community workers.”167 This, however, is a clear silence on the question of the regime of movement of TCNs. As we have seen in the previous section, such silences also lead to contradictions in Commission discourse. As a result, not all internal borders are abolished and in certain cases internal obstacles to freedom of movement of people continue to exist.
A further example of Commission silence on the issue of free movement of people is its articulations on free movement of labour from the member states that joined in 2004 and 2007. Despite all of the rhetoric that encourages and welcomes the opening of the labour markets of the “old” member states to the “new” ones, currently the Commission discourse is silent on actively promoting a more inclusive arrangement for the movement of
workers from the new member states. During the Enlargement it was established that: