INTEGRATION POLICY IN THE
EUROPEAN UNION
THE QUESTION OF COMPETENCE
John Handoll
INTRODUCTION
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To discuss how question of competence – as between EU and its Member States has been addressed in area of third-country national integration policy.
“Constitutional” rules in EU Treaties (TEU, TFEU and CFREU). Restatement with
entry into force of Lisbon Treaty (1 December 2009).
EU has exercised competence in a number of areas relevant to integration of thirdcountry nationals, including immigration policy relating to “conditions of entry
and residence” (Article 63(3)(a) TEC) and now to “fair treatment” and definition of
rights of legally-resident TCNs (Article 79(1) and (2) TFEU)
Before Lisbon Treaty, recognised (as now) that primary responsibility for
integration policy lay with Member States rather than Union as whole. Recognised
that EU could and should support and incentivise national integration policies in a
number of different ways. However, there was no specific Treaty basis for doing so.
Now Article 79(4) TFEU allows EU measures to incentivise and support Member
State action promoting the integration of third-country nationals legally residing in
territories, excluding any harmonisation of laws and regulations of Member States.
What does this mean?
OUTLINE
• General Framework for Competence under the
EU Treaties
• EU Competence in the Immigration/Integration
Policy Field
– Immigration Measures
– Measures Supporting/Incentivising Member State
Action
• Relationship between Article 79(1) & (2) (b) and
Article 79(4) TFEU
• “European cooperation in the field of integration”
COMPETENCE: THE EU TREATIES
• TEU (Articles 4 and 5):
– Principle of conferral. Competences not conferred on
Union remain with Member States
• TFEU (Article 2). Union competence may be:
– Exclusive
– Shared (see Protocol No. 25)
– “Supportive” of Member State action, without
superseding Member State competence.
• Charter of Fundamental Rights of the EU (Articles
51 and 52)
EU COMPETENCE:
IMMIGRATION/INTEGRATION POLICY
• TFEU (Article 4(2)(j)):
– Shared competence in area of FSJ (including
immigration policy).
• TFEU (Article 79(1) and (2)(b)):
– Immigration policy includes “fair treatment” of legallyresident TCNs and EU has power to adopt measures in
relation to definition of their rights.
• TFEU (Article 79(4):
– Measures to provide incentives and support for action
of Member States with a view to promoting
integration of legally-resident TCNs, excluding any
harmonisation of Member State laws and regulations.
EU COMPETENCE IN INTEGRATION:
DRAWING THE LINE
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Article 2(6) TFEU: Scope of and arrangements for exercising EU competence
determined by EU Treaties provisions relating to each area.
Exercise by EU of shared powers in relation to immigration (and other areas) may
involve “integration” elements. See, e.g., LTR and Family Reunification Directives.
Wording of Directives reflects Member State competence concerns (see Protocol
No. 25 on the exercise of shared competence and references to national
competence in preambles).
Article 63(3)(a) TEC also provided basis for specific integration measure: 2007 EIF
Decision.
Article 79(4) TFEU has taken over a part of what was previously covered by Article
63(3)(a) TEC (now Article 79(1) & (2). EIF Decision would now be based on Article
79(4).
Introduction of Article 79(4) enables the start of a new stage of European
cooperation in the field of integration (April 2010 Zaragoza Declaration)
Designed to remove/reduce risk that Article 79(1) & (2) might be used as basis for
EU measures primarily directed at integration.
Drawing the line is ultimately for the Court of Justice.
Much of the frontier-delimitation work has already been done.
EUROPEAN COOPERATION IN THE
FIELD OF INTEGRATION (1)
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October 1999 Tampere Summit
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Development of common approach to ensure integration into our societies of lawfully-resident thirdcountry nationals.
The EU must ensure fair treatment of legally-resident third-country nationals. A more vigorous integration
policy should aim at granting them rights and obligations comparable to those of EU citizens.
Set foundations for current policies, applying post-Amsterdam Treaty provisions. Did not resolve
competence issues.
Consensus early on that integration was primarily role of Member States, that a measure of
“coordination” of national measures was needed and that national policies should be developed
within a coherent EU framework.
Commission’s initial approach was ambitious – OMC approach (with suggestions of eventual
extension of Community powers) and idea of “civic citizenship” – and not fully taken up by the
Member States, which preferred a more gradualist approach, respectful of national differences and
competences.
European Council/Council start to set agenda, with Commission rowing back on ambition.
2004 Common Basic Principles established by the Council of the EU and the Representatives of the
Governments of the Member States.
Note the “driver” provided by successive ministerial conferences on integration: Groningen,
Potsdam, Vichy, Zaragoza.
EUROPEAN COOPERATION IN THE
FIELD OF INTEGRATION (2)
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2005 Common Agenda provides “guidance” for EU and Member States integration
policies, clearly distinguishing between the two.
Need for EU and Member States to work together more effectively stressed by the
European Parliament in its 2006 “Strategies and Means” Resolution.
2007: Council of EU and Representatives of Governments: “unity in diversity”.
2008 European Pact invited Member States to establish ambitious policies for
promotion of the harmonious integration of migrants, with the help of Community
support measures.
2009 Stockholm Programme: European cooperation contributes to more effective
integration policies in Member States by providing incentives and support for their
action.
2010 Zaragoza Declaration: recognises importance of Article 79(4) TFEU in
allowing further progress. Practical implications still not clear.
Key point is that Member States retain considerable freedom vis-à-vis the EU in
defining and implementing integration policy.
If national policies fail to respect basic values of EU (Article 2 of the TEU),
possibility of invoking Article 7 TEU (mechanism for addressing risk of breach /
serious & persistent breach of basic values, even in areas of retained competence).