The legal feasibility of the EU's external action on legal migration: The internal and the external intertwined

European Journal of Migration and Law

Volumn 15, Issue 3, 2013, Pages 263-281

  Andrade, Paula García ^a  

^a UNIVERSIDAD PONTIFICIA COMILLAS   (Spain)

Author keywords

association agreements; external competence; integration; Legal immigration; mobility partnerships

Indexed keywords

EID: 84893429885     PISSN: 1388364X     EISSN: 15718166     Source Type: Journal    
DOI: 10.1163/15718166-00002036     Document Type: Review

References (112)

1. See European Council, Conclusions, Thessalonica, 19-20 June 2003, point 9, or the Hague Programme: strengthening freedom, security and justice in the European Union (DO C 53, 3.03.2005), point 1.4.
2. European Council, Presidency Conclusions, Brussels, 15-16 December 2005, point 4 and Annex I, 'Global Approach to Migration: priority actions focusing on Africa and the Mediterranean'. Among several relevant documents, see European Commission, 'The global approach to migration one year on: towards a comprehensive European migration policy', COM (2006) 735, 30 November 2006
3. European Council, Presidency Conclusions, Brussels, 14-15 December 2006
4. European Commission, 'Applying the Global Approach to Migration to the Eastern and South-Eastern Regions Neighbouring the European Union', COM (2007) 247, 8 June 2007
5. European Commission, 'Strengthening the global approach to migration: increasing coordination, coherence and synergies', COM (2008) 611, 8 October 2008.
6. European Commission, 'A dialogue for migration, mobility and security with the southern Mediterranean countries', COM (2011) 292, 24 May 2011.
7. European Commission, 'The Global Approach to Migration and Mobility', COM (2011) 743, 18 November 2011, p. 5, 12 et seq.
8. Council, 'Conclusions on the Global Approach to Migration and Mobility', Council doc. No. 9417/12, 3 May 2012, pp. 5-6.
9. Visa facilitation agreements have been concluded by the EU with Russia (OJL 129, 17 May 2007, p. 27)
10. Ukraine (OJL 332, 18 December 2007, p. 68)
11. Albania, Bosnia-Herzegovina, Montenegro FYROM, Serbia, Moldova (OJL 334, 19 December 2007, pp. 85, 97, 109, 125, 137 and 169, respectively)
12. Georgia (OJL 52, 25 February 2011, p. 34). Negotiations are ongoing with Belarus and Azerbaijan, and have finalised with Cape Verde and Armenia.
13. According to Article 79(3) TFEU, "the Union may conclude agreements with third countries for the readmission to their countries of origin and provenance of third-country nationals who do not or who no longer fulfil the conditions for entry, presence or residence in the territory of one of the Member States".
14. As it was the case of readmission before the Lisbon reform, when an implied external competence could be deduced from former Article 63(3)(b) ECT.
15. For comments on Article 216(1) TFEU, see, for instance, M. Cremona (2008), 'Defining competence in EU external relations: lessons from the Treaty reform process', in: A. Dashwood and M. Maresceau (eds), Law and Practice of EU External Relations. Salient Features of a Changing Landscape, Cambridge: Cambridge University Press, pp. 34-69
16. M. Dony (2009), 'The EU's external relations and their evolving legal framework', in: M. Telo (ed.), The European Union and Global Governance, London: Routledge, pp. 131-156
17. P. Eeckhout (2011), EU External Relations Law, 2nd edn., Oxford: Oxford University Press, pp. 112-113.
18. Case 22/70, Commission v. Council (AETR/ERTA) [1971] ECR 263, para. 16
19. Opinion 1/76, Draft Agreement establishing a European laying-up fund for inland waterway vessels [1977] ECR 741, para. 3.
20. For the interpretation of "necessity" in the sense of facilitating internal objectives, see also A. Dashwood (1998), 'Implied external competence of the EC', in: M. Koskenniemi (ed.), International Law Aspects of the European Union, The Hague: Kluwer, pp. 120 and 122
21. A. Dashwood and J. Helikoski (2000), 'The classic authorities revisited', in: A. Dashwood and C. Hillion (eds), The General Law of E.C. External Relations, London: Sweet & Maxwell, p. 16.
22. See Article 79(1) and the reproduction of the Tampere milestones, which filled in the lacuna of the Treaty of Amsterdam that had transferred to the EC "competences without objectives". Nevertheless, as Labayle points out, the absence of any reference to cooperation with third countries of origin and transit is even more striking given that this was the first of the Tampere milestones. See H. Labayle (2011), 'La competence externe de l'Union europeenne en matiere migratoire', in: M. Maes, M.-C. Foblets and P. De Bruycker (eds.), External dimensions of EU Migration and Asylum Law and Policy/Dimensions externs du droit et de la politique d'immigration et asile de l'UE, Brussels: Bruylant, p. 190.
23. Article 79(1) TFEU.
24. See S. Peers (2011), EU Justice and Home Affairs Law, 3rd edn, Oxford: Oxford University Press, pp. 393-394.
25. Although this objective contained in Article 79(1) TFEU is not very specific, the fact that the goal of preventing and combating illegal immigration and trafficking in human beings is formulated separately suggests that the efficient management of migration flows corresponds to legal immigration policy. See P. De Bruycker, 'Le Traite de Lisbonne et les politiques relatives aux controles aux frontieres, a l'asile et a l'immigration', 2 Revue des Affaires Européennes (2007-2008), 223-243, at p. 234.
26. European Council, the Stockholm Programme: An Open and Secure Europe Serving and Protecting Citizens (OJC 115, 4 May 2010), point 6.1.3.
27. On the distinction of different dimensions of the integration process, see S. Carrera (2005), 'Integration as a Process of Inclusion for Migrants? The Case of Long-Term Residents in the EU', CEPS Working Document No. 219, p. 6, available online at: http://www.ceps.be.
28. See Stockholm Programme, point 6.1.4.
29. Article 79(1) TFEU.
30. "Developing the JHA external dimension is not an objective in itself. Its primary purpose is to contribute to the establishment of an area of freedom, security and justice", Council, Report by the Presidency on "European Union priorities and policy objectives for external relations in the field of justice and home affairs", Council doc. No. 7653/00, 6 June 2000, p. 5, approved by the European Council of Santa Maria da Feira, 19-20 June 2000, point 51. For further references to this effect, see European Council, Presidency Conclusions, Tampere, 15-16 October 1999, point 59; the Hague Programme, point 4
31. Council, "A Strategy for the External Dimension of JHA: Global Freedom, Security and Justice", Council doc. No. 14366/3/05, 30 November 2005, points 1 and 8.
32. The Lisbon reform has explicitly included this safeguard in the Treaties, but it was already present in EU political documents and legislation. See, for instance, Article 6 of Directive 2009/50 of 25 May 2009 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment (OJL 155, 18 June 2009, p. 17).
33. See, for instance, Article 8(2) and 8(3) in relation to Article 6 of Directive 2009/50 on the conditions of entry and residence for the purposes of highly qualified employment.
34. The same distinction between volumes of admission and the examination of the labour market situation can be found in the Commission's proposal for a Directive on the conditions of entry and residence of third-country nationals for the purposes of seasonal employment, COM (2010) 379, 13 July 2010.
35. In any case it is incorrect to affirm, as the European Pact on Immigration and Asylum does, that "it is for each Member State to decide on the conditions of admission of legal migrants to its territory and, where necessary, to set their number", (Council doc. No. 13440/08, 24 September 2008, p. 5; emphasis added), since the EU is competent to regulate "the conditions of entry and residence" of third-country nationals on the basis of Article 79(2)(a) TFEU.
36. COM (2011) 292, p. 8
37. COM (2011) 743, p. 5 and 11
38. Council, 'Conclusions on the Global Approach to Migration and Mobility', Council doc. No. 9417/12, 3 May 2012, point 12.
39. Article 4(2) (j) TFEU.
40. The fact that Article 79(4) TFEU qualifies EU integration powers as support competences could be at odds with Article 4(2) (j) TFEU which states that the AFSJ constitutes a field of shared competence. However, it must also be taken into account that, according to Article 2(6) TFEU, "the scope of and arrangements for exercising the Union's competences shall be determined by the provisions of the Treaties relating to each area".
41. Initiated with Case 22/70, Commission v. Council (AETR/ERTA) [1971] ECR 263, paras 17-18 and consolidated in subsequent ECJ case-law. See Opinion 1/03, Competence of the Community to conclude the new Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2006] ECR I-1145.
42. With regard to ERTA exclusivity, see, for instance, J.-V. Louis (2005), 'La competence de la CE de conclure des accords internationaux', in: J.-V. Louis & M. Dony (eds), Relations Extérieures, Commentaire J. Mégret, Le Droit de la CE et de l'Union européenne, volume 12, Brussels: Ed. de l'Universite de Bruxelles, pp. 57-75
43. As Cremona argues, "the Member States may not, of course, derogate from the Treaty by means of a Declaration and it is hard to see how this Declaration is consistent with Article 3(2) TFEU - at least it has to be read subject to that provision and the definition of shared competence in Article 2 TFEU, in which case the Declaration does no more than re-state that the AFJS is a field of shared competence": M. Cremona (2011), 'EU External Action in the JHA Domain. A Legal Perspective', in: M. Cremona, J. Monar and S. Poli (eds), The External Dimension of the European Union's Area of Freedom, Security and Justice, College of Europe Studies 13, Brussels: P.I.E. Peter Lang, 77-118, at p. 103.
44. Council Directive 2003/86 of 22 September 2003 on the right to family reunification (OJL 251, October 2003, p. 12).
45. Council Directive 2003/109 of 25 November 2003 concerning the status of third-country nationals who are long-term residents (OJL 16, 23 January 2004, p. 44).
46. Council Directive 2004/114 of 13 December 2004 on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service (OJL 375, 23 December 2004, p. 12).
47. Council Directive 2005/71 of 12 October 2005 on a specific procedure for admitting third-country nationals for the purposes of scientific research (OJL 289, 3 November 2005, p. 15).
48. Council Directive 2009/50 of 25 May 2009 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment (OJL 155, 18 June 2009, p. 17).
49. Directive 2011/98 of the European Parliament and of the Council of 13 December 2011 on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State (OJL 343, 23 December 2011, p. 1).
50. See P. De Bruycker (2007), 'Legislative harmonization in European Immigration Policy', in: R. Cholewinski, R. Perruchoud and E. MacDonald (eds), International Migration Law: Developing Paradigms and Key Challenges, The Hague: TMC Asser Press, pp. 329-347.
51. See, for instance, Article 3(5) of Directive 2003/86; 4(2) of Directive 2004/114; 4(2) of Directive 2005/71 or 4(2) of Directive 2009/50.
52. See Case C-540/03, Parliament v. Council, Opinion of Advocate General Kokott [2006] ECR I-5769, para. 41.
53. European Commission, 'Delivering an area of freedom, security and justice for Europe's citizens. Action Plan Implementing the Stockholm Programme', COM (2010) 171, 20 April 2010, p. 52.
54. According to K. Hailbronner (ed.) (2010), EU Immigration and Asylum Law. Commentary on EU Regulations and Directives, Baden-Baden: Nomos, p. 26, "the concept of more favourable treatment may easily lead to an incompatibility with the achievement of the purpose to avoid benefit-driven immigration".
55. It must be recalled that, for excluding ERTA exclusivity, the rules contained in the international agreement in question shall also be minimal. Otherwise, Member States' assuming of those commitments will impede the increase of the EU's level of harmonisation in the future: see Opinion 2/91, Convention No. 170 of the International Labour Organization concerning safety in the use of chemicals at work [1993] ECR I-1061, para. 18 and Opinion 1/03, paras 123 and 127.
56. Note that, despite there being no reference in Council decisions of conclusion of international agreements, the subsidiarity principle has to be respected also when the EU exercises external concurrent competences. In this regard, see Cremona (2011), op. cit., p. 113. Neframi considers that the subsidiarity principle does not intervene directly in external competences, but similar considerations appear in the assessment of the necessity of EU's international action according to Opinion 1/76: E. Neframi (2007), Les accords mixtes de la Communauté Européenne: aspects communautaires et internationaux, Bruxelles: Bruylant, p. 102.
57. As an a priori exclusivity for R. Holdgaard (2008), External Relations Law of the European Community. Legal Reasoning and Legal Discourses, The Hague: Kluwer Law International, pp. 117-119
58. D. O'Keeffe (2000), 'Exclusive, Concurrent and Shared Competence', in: A. Dashwood and C. Hillion (eds), The General Law of E.C. External Relations, London: Sweet & Maxwell, pp. 188-190
59. R. Schutze, 'Dual Federalism constitutionalised: the emergence of exclusive competences in the EC legal order', 32 European Law Rev. (2007), 3-28, at pp. 14-15.
60. Opinion 1/94, Competence of the Community to conclude international agreements concerning services and the protection of intellectual property [1994] ECR I-5267, para. 85
61. Opinion 2/92, Competence of the Community or one of its institutions to participate in the Third Revised Decision of the OECD on national treatment [1995] ECR I-521, para. 4.
62. M. Cremona (2006), 'External relations of the EU and the Member States: competence, mixed agreements, international responsibility and effects of international law', EUI Working Paper LAW 22, p. 3.
63. Opinion 1/94, para. 86
64. Case C-476/98, Commission v. Germany (open skies) [2002] ECR I-9855, para. 87.
65. Opinion 1/03, para. 115.
66. See Opinion 1/94, para. 85
67. Opinion 2/92, para. 4.
68. This reasoning has been developed in P. Garcia Andrade (2012) La acción exterior de la Unión Europea en materia migratoria: un problema de reparto de competencias, PhD Thesis, Department of Public Law, Faculty of Law, Universidad Pontificia Comillas, Madrid (publication forthcoming).
69. J. Helikoski (2001), Mixed Agreements as a Technique for Organizing the International Relations of the European Community and its Member States, The Hague: Kluwer Law International, p. 44.
70. See also Case C-466/98, Commission v. United Kingdom et al. (open skies), Opinion of Advocate General Tizzano [2002] ECR I-9427, para. 49 et seq.
71. See, for instance, N. Coleman (2009), European Readmission Policy. Third Country Interests and Refugee
72. Rights, Leiden: Martinus Nijhoff, p. 75 et seq.
73. Italy is a paradigmatic example in this regard, since its Government used to increase or decrease labour quotas to third countries, depending on their level of cooperation with Italy on readmission and fighting against irregular immigration. To illustrate this case, see Di Pascale's considerations in P. Garcia Andrade, A. Di Pascale and A. Sarraj (2011), 'L'importance des relations bilaterales entre Etats membres et pays tiers en matiere d'immigration: une analyse de l'action exterieure de l'Espagne, la France et l'Italie', in: M. Maes, M.-C. Foblets and P. De Bruycker (eds), External Dimension of European Migration Law and Policy/Dimensions externes du droit et de la politique d'immigration et d'asile de l'UE, Bruxelles: Bruylant, pp. 315-317
74. P. Cuttitta, 'Yearly quotas and country-reserved shares in Italian immigration policy', 5 Migration Letters (2008), 41-51.
75. Case 12/86, Demirel [1987] ECR 3719, para. 9.
76. Case 12/86, Demirel, Opinion of Advocate General Darmon [1987] ECR 3719, para. 14.
77. M. Maresceau, 'Bilateral agreements concluded by the European Community', 309 Recueil des Cours de l'Academie de Droit International (2004), 125-451, at p. 168.
78. Association agreements also contain, of course, clauses on readmission and migration management. See for instance Articles 75 and 76 of the Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the former Yugoslav Republic of Macedonia, of the other part (OJL 84, 20 March 2004, p. 13).
79. See, for instance, Articles 44-46 of the Stabilisation and Association Agreement with the former Yugoslav Republic of Macedonia or Articles 67-71 of the Euro-Mediterranean Agreement establishing an Association between the European Community and its Member States, of the one part, and the People's Democratic Republic of Algeria, of the other part (OJL 265, 10 October 2005, p. 2).
80. The only association agreements that grant true rights of entry and residence in the EU to thirdcountry nationals are the Agreement establishing a European Economic Area and the Agreement on Free Movement of Persons concluded with Switzerland. To this effect, see P. Garcia Andrade (forthcoming), 'Privileged Third-Country Nationals and their Right of Free Movement and Residence to and in the EU: Questions of Status and Competence', in: C. Gortazar, E. Guild and D. Kostakopoulou (eds), The Reconceptualization of European Union Citizenship, Leiden: Brill.
81. See S. Iglesias (2012), '.Hay lugar para la accion exterior de la Union Europea en materia de inmigracion legal? Acuerdos internacionales, asociaciones de movilidad e intereses estatales', in: J. Martin y Perez de Nanclares (coord.), La dimensión exterior del espacio de libertad, seguridad y justicia de la Unión Europea, Madrid: Iustel, pp. 173-193, at pp. 184 and 192.
82. See European Commission, "The External Dimension of EU Social Security Coordination", COM (2012) 153, 30 March 2012.
83. See Regulation No. 1231/2010 of the European Parliament and of the Council of 24 November 2010 extending Regulation No. 883/2004 and Regulation No. 987/2009 to nationals of third countries who are not already covered by these Regulations solely on the ground of their nationality (OJL 344, 29 December 2010, p. 1).
84. See Article 11(1)(d) of Directive 2003/109 on long-term residents, 12(2)(c) of Directive 2005/71 on researchers, 14(1)(e) of Directive 2009/50 on highly qualified employment and 12(1)(e) of Directive 2011/98 on a single permit and a common set of rights for migrant workers.
85. See Council Decisions No. 2010/697, 2010/698, 2010/699, 2010/700, 2010/701 and 2010/702, respectively, of 21 October 2010 (OJL 306, 23 December 2010)
86. as well as Council Decisions No. 2012/773, 2012/774 and 2012/776, respectively, of 6 December 2012 (OJL 340, 13 December 2012).
87. With regard to the rules on social security contained in association agreements, see, for instance, H. Verschueren (2009), 'Social Security Co-ordination in the Agreements between the EU and Mediterranean Countries, in particular Turkey and the Maghreb Countries', in: D. Pieters and P. Schoukens (eds), The Social Security Co-ordination between the EU and Non-EU Countries, Antwerp: Intersentia, pp. 19-55.
88. See European Commission, 'Communication on circular migration and mobility partnerships between the European Union and third countries', COM (2007) 248, 16 May 2007
89. GAER Council, Conclusions on extending and enhancing the Global Approach to Migration, 17-18 June 2007
90. JHA Council, Conclusions on Mobility Partnerships and Circular Migration, 6-7 December 2007.
91. In this regard, see, for instance, Case C-266/03, Commission v. Luxembourg [2005] ECR I-04805, para. 60.
92. European Commission, 'Mobility Partnerships as a tool of the Global Approach to Migration', SEC (2009) 1240, 18 September 2009, pp. 7-8.
93. Joint Declaration on a Mobility Partnerships between the European Union and the Republic of Moldova signed on 5 June 2008 (Council doc. No. 9460/08 ADD 1, 21 May 2008)
94. Joint Declaration on a Mobility Partnership between the European Union and the Republic of Cape Verde signed on 5 June 2008 (Council doc. No. 9460/08 ADD 2, 21 May 2008).
95. Joint Declaration on a Mobility Partnership between the European Union and Georgia signed on 30 November 2009 (Council doc. No. 16396/09 ADD 1, 20 November 2009).
96. Joint Declaration on a Mobility Partnership between the European Union and Armenia, signed on 27 October 2011 (Council doc. No. 14963/11 ADD 1, 6 October 2011).
97. Joint Declaration on a Mobility Partnership between the Kingdom of Morocco and the European Union and its Member States, signed on 7 June 2013 (Council doc. No. 6139/13 ADD 1 REV 3, 3 June 2013).
98. European Commission, '4th Annual Report on Immigration and Asylum (2012)', COM (2013) 422, 17 June 2013, p. 9.
99. Senegal refused the offer to negotiate a mobility partnership with the EU in 2009. Negotiations with Ghana, started in 2010, seem to have stalled. See N. Reslow, 'The Role of Third Countries in EU Migration Policy: The Mobility Partnerships', 14 European Journal of Migration and Law (2012), 393-415, at p. 414.
100. See Case C-233/02, France v. Commission [2004] ECR I-2759, para. 40.
101. See Y. Pascouau (2010), La politique migratoire de l'Union européenne. De Schengen à Lisbonne, Paris: L.G.D.J., p. 495.
102. With regard to the recourse to soft law when implementing the external dimension of EU migration policy, see P. Garcia Andrade (2012), 'La dimension externe de la politique migratoire de l'Union europeenne: un bilan au travers de ses instruments', in: M. Dony (dir.), La dimension externe de l'Espace de liberté, sécurité et justice au lendemain de Lisbonne et de Stockholm: un bilan à mi-parcours, Bruxelles: Editions de l'Universite de Bruxelles, pp. 113-145.
103. Council, Conclusions on Mobility Partnerships as a tool of the Global Approach to Migration, doc. No. 15811/09, adopted at JHA Council of 30 November-1 December 2009, point 9.
104. In this sense, see also S. Carrera, R. Hernandez and R. Sagrera (2009), The Externalisation of the EU's Labour Immigration Policy. Towards Mobility or Insecurity Partnerships?, CEPS Working Document 321, available online at http://www.ceps.be.
105. An evaluation of the EU-Moldova Mobility Partnership acknowledges that the partnership is a clear success and that a balanced implementation of the several pillars of the GAMM is being increasingly achieved. Nonetheless, there has been little progress in facilitating legal migration to Moldovan citizens ('The European Union - Republic of Moldova Mobility Partnership 2008-2011: Evaluation Report', 1 October 2012, available online at http://www.mfa.gov.md/ img/docs/eu-moldova-mobility-partnershipevaluation.pdf).
106. See COM (2007) 248, part III. The main question lies of course on determining whether the EU concept of circular migration is rather a disguised form of temporary migration.
107. See A. Wiesbrock and H. Schneider (2009), 'Circular migration and mobility partnership', Briefing Paper, European Parliament, PE 410.680, available online at http://www.europarl.europa.eu/committees/en/studies.doc.
108. COM (2007) 248, p. 5.
109. See 'Study on the links between legal and illegal migration', COM (2004) 412, 4 June 2004, p. 3.
110. See I. Lirola Delgado (2008) ".Por fin una politica de inmigracion de la Union en el Tratado de Lisboa?", in: J. Martin y Perez de Nanclares (coord.), El Tratado de Lisboa. La salida de la crisis constitucional, Madrid: Iustel, pp. 539-550, at p. 544.
111. As Parkes notes, "Mobility Partnerships diminish the pressure for a common approach to legal migration. This is because they permit EU Member States to opt into the Partnerships as they see fit, rather than demanding an EU-wide approach to migration relations with the chosen third country". R. Parkes, 'EU Mobility Partnerships: A Model of Policy Coordination?', 11 European Journal of Migration and Law (2009), 327-345, at p. 329.
112. See, in this regard, S. Peers, 'An EU Immigration Code: Towards a Common Immigration Policy', 14 European Journal of Migration and Law (2012), 33-61.