Freedom of movement among the citizens of the European Union has taken a progressive and historical process. This began with workers in the steel and coal industry and progressed to the freedom of movement of all persons including ordinary citizens. This study is mainly concerned with the anti-discriminatory clause of the freedom of movement legislation.
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There were various forms of discrimination among the EU member states that rendered exercising of the legislation ineffective. The study explores the agenda behind the anti-discrimination directive, decision making process through to its implementation.
The study also examines some of the controversies surrounding the implementation of this directive by the member states. In order to succeed in exercising these rights the EU member countries ought to pursue convergent and well harmonized strategies that match with EU policies.
Free movement across the EU member states was founded upon the Maastricht accord, which like the Rome statute did not considers the legislative challenges of these EU affiliate countries in their social system. This brought a new political dimension to the already existing economic integration among the EU member states.
Each and every citizen of the EU affiliate states automatically gains EU citizenship but still retain their national citizenship. On the other hand, EU citizenship increases the economic benefits to the citizens of the EU member’s states as stipulated in the treaty1.
Maastricht treaty gives EU citizens right to enjoy within the scale of the treaty the same treatment in the law regardless of the nationality.
For that reason, EU citizenship has increased the rights of the persons within the EU member states considerably. EU court of justice ruled that citizens of the EU are eligible to live in any state as citizens, consequently the EU citizenship gives citizens of the EU member states right to move freely across the these countries2.
In the EU, the policy for free movement of people is mainly associated with labor mobility. The EU’s Lisbon Strategy for growth and employment could not be achieved without guaranteeing the right of citizens to t lives and work anywhere in the Union. The mobility of workers is encouraged because it brings benefits to the individuals in terms of personal and career development3.
The paper analyses the EU s policy on free movement of people and more specifically the Directive in the rights of citizens of the Union and their family members to move and reside freely within the territory of the Member States adopted by the European Parliament and the Council on 29 April 2004 (2004/38/EC)4.
In the first place, the paper identifies the nature of the policy process, its setting in the EU agenda, the actors who are responsible for its formulation then it evaluates the power and influence exercised in the policy making process, as well as its implementation.
The Nature of free movement of persons
The European Union ability for legislative acts and other initiatives on free movement of people is based legally in the provisions in the Treaties of the European Union. In the treaty of Rome, the universal right of free movement was not enshrined.
It was only the Treaty of Maastricht which introduced the freedom of movement as a fundamental right that the EU citizens have irrespective of whether they have economic activities or not. Article 3 /2/ of the TFEU stipulates that the Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which free movement of persons is ensured5.
Article 45 of the Treaty on the Functioning of the European Union (TFEU) provides for the freedom of movement of workers who shall move freely within the territory of member States and shall stay in the Member States for the purposes of employment.
The rights of economically-active persons to free movement within the EU have been complemented by limited rights for non-economically-active citizens to move freely within the EU, under Article 20 (1) of the TFEURegulation 1612/1968 of the Council of 15 October 1968 on the freedom of movement of workers within the Community only provides for the free movement of employees6.
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Towards the end of 1970s European parliament on all the EU stakeholders to fight forms of discrimination the EU citizens were facing in relation to their freedom of movement within the EU’s jurisdiction7. In most occasions the EU council opposed this action arguing that EU had no legal base to deal with this issue.
One of the issues that attracted great concern especially in UK was the protection of the immigrants linked to immigration policies of the individual member states. Debates on appropriate policy to fight racism and xenophobia continued and deepened in 90’s.
The fight against racism also involved policy consultations among non-governmental organizations and action groups which resulted to the formation of European Network against Racism (ENAR). Simultaneously, a group of legal experts from these groups of activists formed Start Line Group (SLG).
This organization became a major tool for policy formulation and also helped in organizations of awareness campaigns to support and promote synchronization of the policies against discrimination of the EU member states8.
The above group of activists lobbied rigorously across Europe to acquire the legal basis for the anti-discrimination policy geared towards the preparation of the Amsterdam treaty. Starting Line Group later on supplied the EU commission with a particular draft proposal for the directive on combating religious and racial prejudice.
Their contributions were openly supported and authenticated by the European Parliament which issued a number of resolutions pushing for the EU commission to utilize the SLG proposals as foundation for main proposal, which was accepted by the commission9.
The following events were taking place in order to integrate all the debates which were also taking place in the EU member states. Therefore, pushing of this agenda at the European level was very attractive to rights group since they wanted to bypass some o the EU member countries that were reluctant to adopt this policy.
In spite of the obstacles experienced within the EU institution wise, attaining a unanimous decision for safeguarding protection against the above forms of discrimination was very vital in choosing EU as the policy platform10.
Therefore, the coalition between different set of players with the European parliament and commission with the well organized competence of the Starting Line Group in consolidating information and authenticating support to raise the subject on the agenda was very important.
Besides the intensive lobbying, the research carried out by the legal experts was also used for awareness and formulation of the legislative proposals. Those who took part in the debate utilized existing research, assigned new research or assumed this role on their own.
In fact, the migration policy group in collaboration with the European Centre on Racism and Xenophobia analysed and compared the proposed legislations from the EU commission and the SLG and the national versions11. This was done to come up with the common ground by accommodating all the proposals to convince the restrained governments. The main distinction between the SLG’s proposal and the Commission’s proposal was the insertion of religion as a basis or discrimination.
This was removed by the EU commission but later re-introduced by the European parliament. Framing the religious subject into the EU agenda as an obstacle to free movement of people was considered to be an effective strategic approach. Another positive aspect was the decision by the commission to handle the issue of racism separately from other forms of discrimination12.
At the proposal stage, the EU commission had most of the influence on the proposal in line with the EU comitolgy in decision making process. The commission voted for the proposal and submitted the draft for adoption in EP and the council who approved it.
The commission took over most of the implementation process. The decision making process was facilitated by a number of factors including domestic politics and tactics from the European parliament. Politics as a factor in the decision making process was very much unpredictable13.
Australian election in the year 2003 brought the extreme right Australian freedom party into the then coalition government resulting to solemn concerns and unilateral approval by the rest of the EU member states. This also underpinned the necessitated urgent response from the EU institutions which analysts believe was a crucial factor for quick adoption of the directive.
European parliament strategically narrowed the debate by persuading the EU commission and council to move the directive on racism swiftly. Henceforth, the decision making process took place in a consultative manner, isolating the process behind the close doors of the council thus keep away from the interference.
This was specifically frustrating for the European parliament which had been a more active proponent of the EU obligation against racism. However, the European parliament stepped up its opinion delivery after gaining more seats14.
With the decision making process clearly in their hands, EU member states managed to control the decision making process and resulted into a weaker directive than the earlier proposals.
Their main topic of debate was based on auxiliary principles, probable cost of implementation, non interference with the national policies on immigration, and a constricted treaty base. Even though, in principle, no EU member country was opposed to the new directive, a number of issues resulted to acrimonious debate for instance impact of the directive on the third country citizens15.
The great support Australian accorded the proposed directive minimised opposition from the other member states who feared being compared negatively for instance Germany. Earlier declarations and unanimous reaction after election in Australia made it very perilous for any government to exhibit inconsistency in the adoption of the anti-discriminatory legislation.
It should be noted that after the adoption of the directive article 13 and respect for the minority group were also included for new countries joining the European Union16.
The implementation process was both well strategized and followed effective division of work between the external and internal actors. External actors were mainly the NGO’s, who provided the design for the policy and technical know-how while the internal actors were mainly the EU parliament and the commission.EU member states were given 3 years to realign their legislations with the EU directive.
In mid 2004, the EU commission began proceedings for the member states who contravened the EU directive within the July 2003 directive. By the year 2007, complete implementation of the directive was still not yet achieved and additional set of formal appeals from the EU commission was sent to 14 members to fully implement the directive.
Realising the serious loop holes in the implementation process, the European parliament also added its support in calling for the full implementation of the legislation17.
Some of the agencies promoted by the commission in the anti discrimination campaign faced many challenges until they were restructured with a wider mandate into the EU agency for basic rights. 18United Kingdom “good fit” is regarded as the most effective piece of legislation on antidiscrimination.
Several countries have also followed the same direction and in some cases surpassing the EU directive for instance France. The political situation in Germany made the implementation process very difficult, similar to Poland and Denmark thus lack of comitology in the implementation process.
Controversy surrounding implementation of the directive
In Germany the implementation of this directive led to higher immigration rate particularly during the electioneering period. The directive clashed with the other receptive issues such as citizenship law and gay marriages which delayed its adoption by the government in that time.
The directive also faced hostility in Poland and Denmark. UK was the strongest opponent of the EU directive on racism arguing that the impasse surrounding discrimination had to be tackled at the country level.
EU court of justice has offered clarification for the interpretation of the directive but the lack of proceedings relating to the racial discrimination has restricted its influence.
A court can only take action when permissible violations of rights are brought to its attention by authentic actors. However, the European court of justice has put a lot of pressure on a number of member states who failed to comply with its directives. But these cases take almost forever to be heard19.
Local changes among the EU member states that can be traced back the EU-level have somewhat limited. There have been a number of reforms and introduction of new laws in all EU member countries but the facts on the ground reveals that there is a broad difference with little convergence.
The impact of this directive is also very difficult to isolate from other legal and policies adopted by EU and the outsiders relating to anti-discrimination20.
Factors that have brought about convergence of these policies seem to be the compatibility of the directive with the social and political environment in many countries. Introduction of some legislations related to the directive have caused a lot of confusion and snarl up to the implementation process.
For instance one of the requirements of this directive is the setting up of an autonomous body to encourage and promote equality, assist victims and oversee development. However, several years after this clause was added in the gender equality directive it opened arguments in many countries whether to establish a joint or separate bodies encasing several discriminatory issues.
Division of the intricate issues facilitates adoption of the policy but complicates the implementation process21. Swift implementation of the EU directive left little time for the public to debate nor reflect on the consequences of the these laws at the country level.
The quest for freedom of movement and legislations that are against all forms of discrimination that affects effective exercising of this freedom have taken an historic and strenuous journey. Following intensive lobbying by the European parliament and NGO’s plus the politics in Australia, the quest for freedom of movement and the legislation against all the discriminatory elements that acts as the obstacle for the same was realised.
The multi-level engagement between the NGO’s and the EU relevant divisions resulted led to daring and ground-breaking piece of legislations with high expectation and standards in the comparatively new policy areas. Despite of the limited role of the European parliament, the process was fairly democratic.
This is evident in the implementation process which was not smooth due to influence from the state quarters. The directive was a break through in the social policy issues but the implementation was relatively weak and deficient.
Bell, M. ‘Beyond European labor Law? Reflection on the EU racial quality, Directive.” European law journal, vol.8, no. 8, 2002, pp. 384-399.
Golynker, O. “Jobseekers’ Rights in the European Union: Challenges of hanging the Paradigm of Social Solidarity”. European Law Review vol. 30 no.1, 2005, pp. 111–22.
Guild, E. The Legal Framework of EU Migration. Working Paper No. 2, Pemint, 2002
Guild E. European Community Law from a Migrant’s Perspective. Katholieke niversiteit Nijmegen, Nijmegen, 2000
Hailbronner, K. “Union Citizenship and Access to Social Benefits.” Common Market Law Review vol.42, 2005, pp. 1245–67
Hix, S. “The political system of the European Union”. UK: Palgrave MacMillan, 2005
Nanda, VP, Folsom, RH, & Lake, RB. European Union law after Maastricht: a practical guide for lawyers outside the common market. The Hague: Kluwer, 1996
Steiner, J & Woods, L. Twigg-Flesner, Christian’, EU Law (9th ed.). Oxford: Oxford University Press, 2006, pp. 56–60.
Verwilghen, M. ‘Thirty Years of Free Movement of Workers in Europe’, Proceedings of the Conference Brussels, European Commission, Brussels, 1998
Weiss, F & Wooldridge, F. “Free Movement of Persons Within the European Community”, Kluwer Law International, The Hague, 2002
1 E, Guild , European Community Law from a Migrant’s Perspective, Katholieke niversiteit Nijmegen, Nijmegen, 2000
2 K, Hailbronner, “Union Citizenship and Access to Social Benefits”, Common Market Law Review vol.42, 2005, pp. 1245–67
3 M, Bell, ‘Beyond European labor Law? Reflection on the EU racial quality, Directive”, in European law journal, vol.8, no. 8, 2002, pp. 384-399.
4 E, Guild, The Legal Framework of EU Migration, Working Paper No. 2, Pemint, 2002
5 M, Bell, ‘Beyond European labor Law? Reflection on the EU racial quality, Directive”, in European law journal, vol.8, no. 8, 2002, pp. 384-399.
6 O, Golynker, “Jobseekers’ Rights in the European Union: Challenges of hanging the Paradigm of Social Solidarity”, European Law Review vol. 30 no.1, 2005, pp. 111–22.
7 S, Hix, “The political system of the European Union”. UK: Palgrave MacMillan, 2005
8 S, Hix, “The political system of the European Union”. UK: Palgrave MacMillan, 2005
9 E, Guild, European Community Law from a Migrant’s Perspective, Katholieke niversiteit Nijmegen, Nijmegen, 2000
10 M, Bell, ‘Beyond European labor Law? Reflection on the EU racial quality, Directive”, in European law journal, vol.8, no. 8, 2002, pp. 384-399.
11 M, Bell, ‘Beyond European labor Law? Reflection on the EU racial quality, Directive”, in European law journal, vol.8, no. 8, 2002, pp. 384-399.
12 K, Hailbronner, “Union Citizenship and Access to Social Benefits”, Common Market Law Review vol.42, 2005, pp. 1245–67
13V, Nanda, R, Folsom, & R. Lake, “European Union law after Maastricht: a practical guide for lawyers outside the common market”. The Hague: Kluwer, 1996
14 S, Hix, “The political system of the European Union”. UK: Palgrave MacMillan, 2005
15 M, O’Mahony & B, van Ark, “EU productivity and competitiveness: an industry perspective, European Commission”, 2003
16 VP, Nanda, RH, Folsom, & RB, Lake, “European Union law after Maastricht: a practical guide for lawyers outside the common market”. The Hague: Kluwer, 1996
17 Weiss, F & Wooldridge, F, “Free Movement of Persons Within the European Community”, Kluwer Law International, The Hague, 2002
18 S, Hix, “The political system of the European Union”. UK: Palgrave MacMillan, 2005
19 Steiner, J & Woods, L,’ Twigg-Flesner, Christian’, EU Law (9th ed.). Oxford: Oxford University Press, 2006, pp. 56–60.
20 Verwilghen, M, ‘Thirty Years of Free Movement of Workers in Europe’, Proceedings of the Conference Brussels, European Commission, Brussels, 1998
21 S, Hix, “The political system of the European Union”. UK: Palgrave MacMillan, 2005