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Integration into Society and Free Movement of Non-EC Nationals
Thomas Hoogenboom 1
Full text available: PDF format *
I. Introduction
Discrimination against aliens, particularly those who are not nationals of one of the Member States, is a source of concern in the European Community. This concern has repeatedly been expressed by the Council, the Commission and the European Parliament.2 What is more, this topical and highly sensitive issue is one of extreme political and legal complexity. While there is a growing awareness that integrated measures are needed at Community level, the traditional view is that the treatment of aliens remains an area which belongs to state sovereignty. This view is apparently difficult to reconcile with the requirements of the internal market. This is evidenced by a debate about the powers of the Community and the possible transfer of the authority of the Member States to the Community.
Both in material and formal terms, the position of non-EC nationals who are resident in the Community gives rise to tension, for the people themselves and also for EC nationals. Among the material factors causing this tension are government attempts to put a stop to continuing immigration, the poor schooling and high unemployment of immigrants in the Community, and racism and xenophobia. Traditional solutions that have been suggested by governments are a radical restriction of immigration by exercising more vigilant control at the outer borders, harmonization of visa and admission policies, and the promotion of integration. Formal factors which impede effective action at a Community level are the supposed lack of competence of the Commission and the Council, the traditional view that the Member States should hold sovereignty in respect of immigration law, and the vast differences between the economies of the Member States.
If this tension is not alleviated, Community principles will be corrupted and there will be a huge waste of social and human resources. It may be possible to find solutions for the formal problems by granting powers to the European institutions, or by making use of intergovernmental conventions to harmonize provisions relating, inter alia, to the law relating to aliens, such as the Schengen Conventions3 and the Dublin Asylum Convention.4 The Member States have shown a preference for the latter path, though this has not, in the Commission's view, produced significant results.5 Moreover, following the intergovernmental path has other disadvantages, namely that the European Parliament and the Court of Justice are shut out. Thus, for example, the measures which are being prepared by the ad hoc immigration group (an informal working party which is, among other things, drafting the Convention on the crossing of the external borders of the Member States of the European Community) lack the necessary exposure to scrutiny and have little or no democratic legitimation. As immigration matters, in particular the free movement of persons, have been expressly declared as matters of common interests in the Treaty on European Union (done at Maastricht 7 February 1992),6 these matters will in principle be settled by intergovernmental conventions. Thus they still are excluded from the scope of the EEC Treaty and their legitimacy is not as a rule subject to review by the Court of Justice. It is therefore doubtful whether uniform implementation of the regulations and legal protection against their application can be assured. Nonetheless the Treaty on European Union contains the possibility of establishing
the Court's jurisdiction to interpret provisions of intergovernmental conventions in the field of inter alia conditions of entry and movement by nationals of third countries on the territory of Member States, and their conditions of residence including family reunion and access to employment.7
A formal solution which can be tried out is the granting of nationality to nationals of non-member countries, who are then also allowed to retain their original nationality.
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1 Practising lawyer, and lecturer at the University of
Amsterdam.
2 For an outline of Community action since 1986 see European
Parliament, Report drawn up on behalf of the Committee of Inquiry into Racism
and Xenophobia (Ford Report) (1991) 97-98.
3 Agreement between the Kingdom of the Netherlands, the Kingdom of
Belgium, the Federal Republic of Germany, the French Republic and the Grand
Duchy of Luxembourg on the Gradual Abolition of Checks at the Common Borders,
done at Schengen 14 June 1985, Trb. [Dutch Treaties Series] 1985, 102 and the
Convention applying the Schengen Agreement of 14 June 1985 between the
Governments of the States of the Benelux Economic Union, the Federal Republic
of Germany and the French Republic on the gradual abolition of checks at their
common borders, 30 ILM (1991) 68.
4 Convention determining the State responsible for examining
application for asylum lodged in one of the Member States of the European
Communities, done at Dublin 15 June 1990, 30 ILM (1991) 425.
5 Commission of the European Communities, Commission opinion of 21
October 1990 on the proposal for amendment of the Treaty establishing the
European Economic Community with a view to Political Union, COM(90) final,
12.
6 Article K1 of the Treaty on European Union.
7 Article K3(2)(c) of the Treaty on European Union.
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