Freedom to travel for Schengen migrants on long-stay visas

The current situation has led to thousands of complaints, says the European Parliament rapporteur Carlos Coelho.




The Grahnlaw blog post Schengen residents with long-stay visa: Proposals on freedom to travel (3 February 2010) mentioned the travel restrictions on legally residing migrants with a national long-stay visa. We also mentioned the Regulations proposed by the European Commission in COM(2009) 90 final and COM(2009) 91 final to enable these expats with “D visas” to travel inside the Schengen area.


The proposals have now advanced in the European Parliament to the stage where the Committee on Civil Liberties, Justice and Home Affairs (LIBE) is set to adopt its report today, based on the draft prepared by Carlos Coelho (rapporteur):



Draft report PE430.461 on the proposal for a regulation of the European Parliament and of the Council amending the Convention Implementing the Schengen Agreement and Regulation (EC) No 562/2006 as regards movement of persons with a long-stay visa (COM(2009)0091 – C6 0076/2009 – 2009/0028(COD))



The other draft report is PE430.459 on the proposal for a Council regulation amending the Convention Implementing the Schengen Agreement as regards long stay visa and alerts in the Schengen Information System (COM(2009)0090 – C6 0107/2009 – 2009/0025(CNS)).

Here the procedure will probably change from consultation to the ordinary legislative procedure, due to the entry into force of the Lisbon Treaty.


Concerning both proposals the rapporteur noted the entry into force of the Lisbon Treaty, as well as the “omnibus Communication” being prepared with regard to the new legal bases. He also expressed uncertainty whether the national Parliaments have yet to be consulted and granted an 8 weeks period to react on the files which are pending at the moment when the Treaty of Lisbon comes into force.


We may be somewhat wiser with regard to the possible amendments and the procedures after the LIBE meeting today.

Anyway, improvements seem to be on their way for legal migrants on long-stay visas.




Ralf Grahn






P.S. Cross-border communication about European issues is important for our future, and Euroblogs offer an enjoyable way to improve our language skills.

Eva Peña in Barcelona writes expertly and critically about the challenges of the European Union and the EU politics of Spain on Eva en Europa (in Spanish).

Perhaps inspired by the Spanish presidency of the Council of the European Union, bloggers in Spain can now be found on a new aggregator Europeando.eu, with posts in Spanish, Catalan and Galician.

Eva en Europa is listed among 522 great Euroblogs (at the latest count) on growing multilingual Bloggingportal.eu, your useful one-stop-shop for fact, opinion and gossip on European affairs: politics, more than thirty policy areas, communication, economics, finance, business, civil society and law.

If you are interested in the EU or the euroblogosphere, you can also subscribe to the RSS feed for new blog posts appearing on Bloggingportal.eu.

By the way, I also discuss European issues in Finnish on Eurooppaoikeus and in Swedish on Grahnblawg.

Citizens and EU law - The real world

There is an emerging body of EU law for Europeans who travel, move, live, love, work, parent, retire or divorce across borders within the European Union. There are still lacunae, but the application, the realities on the ground, are the main focus of the report Alain Lamassoure MEP has prepared for president Nicolas Sarkozy.

‘Le citoyen et l’application du droit communautaire – Rapport au Président de la République’ (8 June 2008; 188 pages) looks at the problems of EU citizens face outside their country of origin, but inside the European Union. Cross-border families are one example.

The report is posted on a number of web pages. One of them is Toute l’Europe:

http://www.touteleurope.fr/fileadmin/CIEV2/entretiens/Rapport_definitif_8_juin_2008.pdf

The perspective is French: EU citizens living in France and French citizens in other EU countries. But Lamassoure uses materials of general applicability, and he suggests that France uses its Council presidency to propose concrete measures to ameliorate the situation of cross-border persons and to inspire other EU member states to take a closer look at their laws and practices.

Taking into account how much corporations are at the centre of textbooks on European Community law, Lamassoure’s report is a valuable source for students and researchers of European law and politics, as well as migrant EU citizens.

Lamassoure looks at the human side of European integration.


Ralf Grahn

EU TFEU: Legislating free movement for workers

With about 500 million people the European Economic Area (EEA) offers opportunities for employees and employers, if the conditions are right for labour mobility.

According to the Lisbon Treaty the European Parliament and the Council can legislate to facilitate the free movement for migrant workers, abolishing restrictions and improving job-search.


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Article 40 of the Treaty establishing the European Community (TEC) is one of those without specific amendments in the Treaty on the Functioning of the European Union (TFEU), brought about by the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL). Cf. OJ 17.12.2007 C 306/54.

***

This leads us to believe that there is cause to look up the current provision, presented in the latest consolidated version of the TEU and the TEC in OJ 29.12.2006 C 321 E/58:

Article 40 TEC

The Council shall, acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and Social Committee, issue directives or make regulations setting out the measures required to bring about freedom of movement for workers, as defined in Article 39, in particular:

(a) by ensuring close cooperation between national employment services;

(b) by abolishing those administrative procedures and practices and those qualifying periods in respect of eligibility for available employment, whether resulting from national legislation or from agreements previously concluded between Member States, the maintenance of which would form an obstacle to liberalisation of the movement of workers;

(c) by abolishing all such qualifying periods and other restrictions provided for either under national legislation or under agreements previously concluded between Member States as imposed on workers of other Member States conditions regarding the free choice of employment other than those imposed on workers of the State concerned;

(d) by setting up appropriate machinery to bring offers of employment into touch with applications for employment and to facilitate the achievement of a balance between supply and demand in the employment market in such a way as to avoid serious threats to the standard of living and level of employment in the various regions and industries.

***

If there are no express amendments, we still have to look out for possible horizontal amendments (here 2(c), OJ 17.12.2007 C 306/41) and the renumbering of Articles in question as well as those referred to (OJ 17.12.2007 C 306/208). In addition, to get a sense of the framework, it is helpful to check the location of the provision (Tables of equivalences, OJ 17.12.2007 C 306/207-208). These exercises lead us to what should be the treaty basis when the Lisbon Treaty has entered into force:

Part Three ‘Policies and internal actions of the Union’

Title III (renumbered Title IV) ‘Free movement of persons, services and capital’

Chapter 1 ‘Workers’

Article 40 TFEU (ToL), renumbered Article 46 TFEU

The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, issue directives or make regulations setting out the measures required to bring about freedom of movement for workers, as defined in Article 39 [ToL, renumbered Article 45 TFEU], in particular:

(a) by ensuring close cooperation between national employment services;

(b) by abolishing those administrative procedures and practices and those qualifying periods in respect of eligibility for available employment, whether resulting from national legislation or from agreements previously concluded between Member States, the maintenance of which would form an obstacle to liberalisation of the movement of workers;

(c) by abolishing all such qualifying periods and other restrictions provided for either under national legislation or under agreements previously concluded between Member States as imposed on workers of other Member States conditions regarding the free choice of employment other than those imposed on workers of the State concerned;

(d) by setting up appropriate machinery to bring offers of employment into touch with applications for employment and to facilitate the achievement of a balance between supply and demand in the employment market in such a way as to avoid serious threats to the standard of living and level of employment in the various regions and industries.

***

The European Convention to change the substance in Article III-19 of the draft Treaty establishing a Constitution for Europe, but its wording was more straightforward and the legislative instruments were clearer (OJ 18.7.2007 C 169/31).

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Article III-134 of the Treaty establishing a Constitution for Europe took over the draft text (OJ 16.12.2004 C 310/59-60), but the IGC 2007 opting for ‘Constitution light’ chose not to burden the Lisbon Treaty with such minimal amendments without material bearing.

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Article 39 TFEU (ToL), renumbered Article 45 TFEU, carries much of its own weight, because the principles of free movement and non-discrimination lend themselves to direct application. Therefore there is less need for the legal base in Article 40 TFEU (ToL), renumbered Article 46 TFEU, than might appear at a first glance.

Another ground for the diminishing importance of specific rules on workers’ free movement is the growing importance of EU citizenship as the basis for individuals’ rights in the European Community (European Union) as a whole.

Because the free movement for workers is the one of the four freedoms potentially concerning the largest group of European citizens, it is somewhat disconcerting that many of the old member states raised barriers against migrant workers from ten new Central European member states in the Accession Treaties for fairly long transitional periods.

If illegal immigration from outside the European Union is seen by many as a potential source of difficulties, surely offering both employees and employers within the European Union improved legal possibilities to match offer and demand should be preferred?

One of the measures to strive for balance between supply and demand is EURES, the European Job Mobility Portal:

http://europa.eu.int/eures/home.jsp?lang=en


Ralf Grahn