This part begins the investigation in the past and examines how economic and social objectives shaped the regulation of migration in the period from the Treaty of Paris to the Single European Act. In doing so, it proves that while the concept of sustainable migration is a recent one, the social and economic pillars of sustainability have been constantly guiding the development of EU migration law. Specifically, the balancing between economic and social considerations shaped the regulation of migration already from the establishment of Community law. The analysis further shows that during the years of post-war growth, the Community institutions’ approach to the regulation of migration was aligned for both Community and third country national (TCN) migrants. Contemporary analyses of EU migration law emphasize the different rationales behind free movement and regulation of migration from third countries. In contrast to this, the investigation shows that during the early years of Community law, all migrants were perceived as having the same function for the collective project of growth.
The demand for labour necessary for economic development in the Member States conditioned the extensive attribution of social rights at least until the 1970s. Following the 1970s oil crisis, the disruptive potential of surplus migrant labour for the economy lay behind the limitation of rights for migrant workers. Looking more closely at the regulation of migration in light of the economic and social objectives of Community law and the economic circumstances in the Member States until the end of the 1980s, one thing becomes clear. The attribution or limitation of rights to migrants is dictated by the need to ensure the smooth functioning of the economy in the Member States. In parallel, social progress is pursued in the form of equal rights for all migrant workers and their families. During this period, the regulation of migration could be found in four legal areas: in the free movement of workers framework as regards Community workers; in Accession Treaties regulating how migrants from acceding states should become part of the free movement framework; in Association and Cooperation Agreements with specific countries granting rights to their nationals; and, finally, through the Community labour and employment policy aiming to generally raise the living standards of all population within the Community territory. This legal framework of migration, which is analysed in detail in this chapter, developed at a time of shifting economic and social circumstances. The 1950s and 1960s were characterized by rapid economic development and increased need for labour migration.Footnote 1 During that time, migration movements mainly comprised guest workers, and these were regarded by Member States as a short-term phenomenon, regulated by the demands of the market.Footnote 2 In contrast, during the 1970s, the Community underwent a period of economic crisis and a declining need for manpower. After the 1973 oil crisis, the economic situation in most Member States was characterized by stagnation, unemployment, and inflation.Footnote 3 This led to a decline in migration flows from third countries, and many Member States tried to completely ban migration.Footnote 4 However, a significant number of migrants remained on Community territory.Footnote 5 What is more, while in 1959 TCN workers accounted for 51.9 per cent of the migrant working population, by 1973, and despite the persistent economic stagnation, the share of TCN workers had risen to 73 per cent of the migrant working population in the Community.Footnote 6 This created the impetus to coordinate national migration policies.Footnote 7
Perhaps the hope of return to the 1950s and 1960s paradigm, or the resilience of the legal framework to quickly shifting circumstances, meant that the considerations behind the legal instruments adopted during this period did not immediately reflect the bleak economic realities on the ground. Rather, the effects of the recession and national unemployment for Community legal instruments were felt later, during the 1990s when it became clear that growth would never again achieve the levels enjoyed during the initial years of the Community project.
The scholarly analysis conducted during this period was mostly doctrinal and did not extend to all the areas reviewed in this part. The initial examination of the free movement framework consisted of purely doctrinal studies until the late 1970s, providing an overview of the relevant primary and secondary law of the field in this novel supranational area.Footnote 8 At this stage, certain authors suggested that free movement could also include TCN workers.Footnote 9 In light of judicial and legislative evolution from the 1980s onwards, scholarship in the field of free movement of workers became theoretically denser and started to explore the rights attributed to workers as an incipient form of European citizenship.Footnote 10 At the same time, while these evolutions clarified the personal scope of free movement to Community nationals, they spawned limited output on the relation of Community law to migrants from third countries.Footnote 11 As a result, scholarly research identifies the beginning of an EU migration policy in the late 1980s or early 1990s, starting with the intergovernmental cooperation of Member States discussed in Part II.
Regarding accession, the elements of flexibility and differentiation introduced in the 2004 enlargement enjoyed considerable academic attention, which is reviewed in Part III. Before that point, there is little literature on the issue of regulating migration in the context of accession. The only work that stands out is a book published by Böhning, who engaged with the Community rules on migration to diffuse misconceptions about the potential threats to the UK economy posed by foreign workers during the period of UK accession.Footnote 12 Similarly, on international agreements and the rights they created for migrant workers, scholarly attention was only drawn later to the extensive interpretations of the Court on the rights of migrants under the EEC–Turkey Association Agreement.Footnote 13 Migrants from third countries and the potential of their enjoyment of rights during this period were largely overlooked.
Against this backdrop, this part looks at the period before the adoption of the Single European Act to investigate how economic and social objectives shaped the regulation of migrants’ rights under Community law. Specifically, Community primary and secondary law, as well as Accession Treaties and Association Agreements that include provisions regulating labour movement, are examined in order to investigate how economic and social considerations appeared in their negotiation and eventual adoption. In this examination, I show how economic considerations conditioned the attribution or limitation of rights for migrants across different instruments already in the early years of Community law. The Community institutions had a clear view on the function of Community and TCN migrants for the project of growth, and relatedly they also considered the rights that migrants should enjoy because of their contribution to growth. The material examined in this part includes legal instruments, agreements, and case-law that were in place before the Single European Act was signed.
Chapter 2 analyses how free movement of workers was included in the Treaty of Paris and the Treaty of Rome and outlines the framework that was put in place to operationalize it for the completion of the internal market. Next, Chapter 2 engages with case-law and investigates how the CJEU took into account economic and social considerations in its adjudication of rights of Community workers. Chapter 3 provides an overview of (mostly) soft-law material and highlights the aspiration of Community institutions to extend the protection offered by Community law to all migrants legally resident in the Community. Finally, Chapter 4 turns to the focus on International Agreements negotiated by the Community that created rights for migrant workers, whose power was only felt later, through rulings of the Court in the 1990s.
From the analysis, it will become clear that the attribution and/or limitation of migrants’ rights under Community law followed a single logic across the different instruments adopted in this period. According to this logic, migrant workers, regardless of origin, contributed to the Community development project. For this reason, they were to be granted rights. At the same time, the wide-ranging attribution of rights (with an emphasis on residence rights) could lead to market distortions and hinder growth. Thus, the legal framework needed to include clauses allowing for the smooth distribution of labour force in the Member States, while limiting potential distorting effects. In parallel, the attribution of social rights to all legally resident migrants was without question. Granting social rights was the central means to guarantee social progress to the population engaged in the Community development project, and to ensure that no unfair competition took place between the Member States, which were all involved in the same project. Arguably, across the different periods and shifts that took place in different areas of EU law, the attribution or limitation of migrants’ rights did not follow a single logic based on the origin of the migrant. It rather followed a logic based on the function of the migrant for the collective development project. Behind this logic lies a balancing act between economic and social considerations aimed at shaping a sustainable migration framework that could support Community growth.
2.1 The Initial Free Movement Framework Aimed at the Optimal Allocation of Manpower
Free movement of all factors of production (worker, goods, capital, and services) is so fundamental to our understanding of Community law that it is scarcely questioned whether the inclusion of migrant workers in the Treaties was an automatic element of the intended closer cooperation between the founding Member States. On this matter, Christian had suggested that free movement found its way into the Treaty framework due to Italy’s pressure for the use of Italian workers in the rest of the Member States.Footnote 1 The countries negotiating the European Project in the aftermath of World War II joined with different interests and posed different threats to the stability of the European future.Footnote 2 Italy was the only emigration country of the founding six and, at that time, was experiencing problems related to overpopulation and unemployment.Footnote 3 Positioning its overpopulation problem in combination with the political threats of this period, Italy managed to secure labour positions for its unemployed population in the form of free movement of workers within the ECSC under Article 69 ECSC.Footnote 4 In this initial framework, free movement was not open to all workers, but only to qualified workers in the coal and steel industries, and under a specific procedure on vacancies.Footnote 5 By limiting the personal scope of free movement, the founding Member States wanted to ensure that no massive migratory waves would be caused by this concession to Italian interests.Footnote 6
The abolition of the requirement of qualifications as a prerequisite for enjoying the right to free movement came with the Treaty of Rome.Footnote 7 Under this Treaty, the optimal allocation of manpower and its integration in the national societies was the objective of free movement, which was focused on abolishing the hardships deriving from the migrant status of the workers in the European industries.Footnote 8 Member States did not perceive the Treaty of Rome as creating an obligation for them to employ Community migrants.Footnote 9 Instead, the prevailing understanding was that nationals should always be chosen first to fill vacancies. If nationals were not in need of employment or were not sufficient, then a Member State could turn to Community migrants through a specifically designed procedure. If Community migrants did not suffice, then Member States could resort to TCNs. This national perception of the Treaty framework is not very different from what is in place today regarding the principle of Union preference in the labour market.Footnote 10 At the same time, this perception of free movement was nowhere close to a teleological reading of a scheme that would eventually foster a true political community. On the contrary, Member States perceived free movement as a labour migration framework that created obligations of preferential treatment to Community migrant workers only as long as national workers were not sufficient to fulfil labour needs.
What is more, at that point in time, there was nothing distinguishing the migrant workers employed in the Member States depending on whether or not they held Community nationality. On this matter, Thym points out:
It would be wrong, however, to assume that the Rome Treaty wanted to establish universal free movement irrespective of nationality. During negotiations, there was agreement that only nationals of the member states should be covered; an explicit nationality clause was discarded in reaction to Franco-Italian disputes about the status of workers from Algeria and German concerns about the status of citizens from communist East Germany.Footnote 11
Regardless of the intentions of the drafters, institutional practice pointed to a uniform approach towards both TCN and Community migrants. Specifically, the first Commission reports on free movement of workers generally discussed the number of labour migrants employed in Community Member States, regardless of their origin.Footnote 12 Even after the adoption of a framework that prioritized Community workers, the relevant Commission Reports looked at the labour market situation in Member States and examined how national manpower demand was covered by migrant workers in general, and not exclusively by Community migrants.Footnote 13
At the time, the importance of labour mobility as a means to increase the production capacities of national industries was so prominent that there were discussions on including TCNs in the Community scheme of mobility in order to meet Community labour needs.Footnote 14 Any opening up of the Community labour markets in this way would always take place with oversight so as to not risk the unlimited access of foreign workers to national markets, which was seen as possibly limiting the quality of life for nationals.Footnote 15
In Section 2.1.1, I turn to the secondary law adopted in successive steps in 1961, 1964, and 1968 to operationalize the free movement provisions. The analysis shows that free movement was structured as a labour mobility scheme aimed at addressing the uneven distribution of manpower between the Member States. The economic expansion of the Community was pursued through the ‘optimum valorization of the technical abilities of human beings’ residing in the Member States.Footnote 16 At the same time, the social aims of the Community, namely improving living standards, were to be realized through strategies related to achieving the full potential of labour mobility in order to maximize productive activities in Community industries, and were not reflected in an extensive attribution of rights in legal instruments.Footnote 17 Section 2.2 examines how this framework was interpreted by the CJEU whose judgments revolutionized the rights of EU migrant workers.
2.1.1 The 1961 Framework
The original framework regulating free movement in the Community was provided in Regulation 15/1961 and the Directive of the same year.Footnote 18 The 1961 Regulation was adopted with an emphasis on prioritizing national markets. Specifically, the 1961 Regulation gave preference to free movement of workers towards Member States that could not satisfy their labour needs by recourse to national workers.Footnote 19 Simply put, Community workers could take up work in another Member State if such work could not be carried by national workers.Footnote 20 What is more, they could exercise their free movement rights only after obtaining a specific job offer.Footnote 21 This was in order to avoid an ‘invasion of workers from other countries’ that could ‘upset the economic and the social order of the national markets’.Footnote 22
The scheme initiated by the 1961 Regulation was based on cooperation between national authorities and the Commission to ensure that national vacancies would be occupied by Community workers. In this regard, national employment offices were tasked with sending information to the Commission on such vacant positions in each Member State as needed to be filled by international labour.Footnote 23 Simultaneously, the Community set up a European Office on the coordination of this scheme.Footnote 24 Migrant workers moved following authorization to work in another Member State. Such authorization could be prolonged for one year in case of employment in the same profession.Footnote 25 After three years, the workers were provided with the possibility of exercising another profession for which they were qualified, while after four years they had the possibility to pursue regular employment in any profession.Footnote 26
The aim of this Regulation was to replace the traditional migratory schemes between Member States based on bilateral or multilateral agreements.Footnote 27 In this regard, it granted migrant workers the right to equal treatment with respect to their working conditions and the right to vote in their respective trade unions.Footnote 28 In addition, migrant workers could be joined by their spouses and children under the age of twenty-one, who were also given access to the labour market.Footnote 29
The right to equal treatment was introduced as a necessary part of the Community framework. It was not based on considerations regarding human rights guarantees for migrant workers, but rather derived from the ‘new spirit of European solidarity’.Footnote 30 It was presented as a concession made by the Member States with a view to creating a labour market that would ensure the best use of the ‘Community’s human potential’.Footnote 31 It was the capacity of migrants as workers (not as human beings, or as nationals of the Member States) that ensured them the right to equality of treatment. This also ensured that native workers would be protected from unfair competition that could be caused from migrants taking up work for lower wages and less favourable working conditions.Footnote 32
This first regulation was pronounced by Levi Sandri as ‘an element of economic integration in its own right’ and an ‘important step towards the integration of Europe’.Footnote 33 The rights attributed to Community workers reflected a vision of social progress going hand-in-hand with economic development. These rights ‘without representing such a direct return for progress in the individual worker’s productivity, are nevertheless useful on a broader view, and satisfy requirements which progressive societies cannot evade’.Footnote 34 These words reflect the continuous balance of economic and social considerations behind the attribution of rights for Community migrants. They are attributed to migrants because of their function for growth, but also with a view to raising living standards for both nationals and migrants within the Member States. The Commission’s vision of free movement was guided by the interdependence of economic growth and social progress in a way that today we would call economic and social sustainability of migration.
2.1.2 The 1964 Framework
At the second stage, Regulation 38/64 and Directives 220 and 221/64 were adopted.Footnote 35 The 1964 framework abolished the clauses on the priority of the national labour market. It did, however, maintain Member State discretion to restrict free movement rights, ‘s’il existe un excédent de main-d’œuvre ou si l’équilibre du marché de l’emploi est mis en grave danger’.Footnote 36 This possibility was used by the Netherlands, Belgium, and France with respect to specific regions of their countries or specific professions.Footnote 37 The scheme put in place by the 1961 Regulation, whereby vacant positions were notified and coordinated by national employment offices in cooperation with the Commission, was maintained.Footnote 38 However, the rights of Community workers were now assimilated with those of national workers after two years of employment following their original entry to another Member State.Footnote 39 Migrant workers under the 1964 Regulation maintained the equal treatment rights with respect to their working conditions. In parallel, their rights to participation in trade unions were extended to include the right to be elected as well, upon condition of employment in the same company for at least three years.Footnote 40 The conditions on family admission also evolved to include all dependent relations of the worker.Footnote 41
At this stage, human mobility among the Member States was restricted in an instrumental use of people as a resource on the path to economic development of Europe. In a report on the economic situation of the Community in 1964 and the outlook for 1965, this instrumentality is pronounced as follows: ‘It is of course essential that each worker should have a job, but it is also necessary that he should be employed where the economy most needs his contribution, and where he can make the best use of his abilities.’Footnote 42 Free movement rights were not tied to the individual agency of the people of Europe, but were rather conditioned by the workers’ contribution to economic development.Footnote 43
2.1.3 The 1968 Framework
The third and final phase of harmonization came with Regulation 1612/68 and Directive 68/360.Footnote 44 The 1968 Regulation, in its preamble, points to the links between mobility and development both for the individual and for the states involved:
[W]hereas mobility of labour within the Community must be one of the means by which the worker is guaranteed the possibility of improving his living and working conditions and promoting his social advancement, while helping to satisfy the requirements of the economies of the Member States.Footnote 45
The connection of mobility to national economies further implied that such mobility should be restricted in cases where Member States experienced or foresaw disturbances in their labour market which could threaten the standard of living and level of employment in a specific region or industry.Footnote 46 In any case, the phrasing of this Regulation was more open and guaranteed access to the labour market of Member States to every Community worker under the same conditions as nationals of the host Member States.Footnote 47 The 1968 framework also provided more enhanced protection for workers against potential discriminatory practices.Footnote 48
Despite the right to access Community labour markets, the scheme was still based on a mechanism of exchange of information between Member States and the European Co-ordination office regarding vacancies that could not be filled by the national labour market, but also applicants who were willing to undertake employment in another Member State.Footnote 49 The scheme thus aimed to match vacancies in one Member State to the surplus of manpower in another.Footnote 50 Vacancies could also be announced to non-Member States, if it was considered that Member States could not provide a sufficient number of workers.Footnote 51 This further serves to point out that labour migration under the free movement framework was intimately connected to the production needs of the time.
Even though the 1968 Regulation was a lot more progressive in terms of workers’ rights compared to the previous ones, the extension of free movement rights was still balanced by the mechanism foreseen in Title III of the Regulation. This mechanism provided for an analysis to be carried out by the Member States and the Commission twice per year on the labour positions occupied by TCNs, the expected developments of the labour market, and the manpower movements in the Community.Footnote 52 Member States had to give priority to Community workers in order to ensure a balance between vacancies and employment applications.Footnote 53 Nevertheless, Article 20 of the 1968 Regulation provided that, upon approval by the Commission, Member States could partially or totally suspend the mechanisms provided for vacancy clearance, in case of existent or expected disturbances in the national labour market that could threaten the standard of living or level of employment in a specific region or occupation.Footnote 54 It should be noted, however, that unlike the 1964 Regulation, Member States could not adopt these measures unilaterally.
The analysis of secondary law shows that free movement was progressively opened to ensure orderly migration of workers and to avoid negative effects to national economies. The demand of primary law to ensure free movement of workers was gradually achieved via secondary law that evolved through the incorporation of clauses related to national labour market priority and the possibility to restrict free movement for economic reasons. This shows how economic considerations shaped the applicable legal framework that operationalized Article 48 EEC.
The three phases of liberalization of movement were all connected to different concerns as to how national labour markets operate in relation to a Community-wide free movement objective. In essence, the institutional build-up of free movement was shaped with a view to addressing manpower mismatches between the national labour markets, mismatches which posed dangers for the unhindered pursuit of growth.Footnote 55 At that stage of industrialization, the productive capacities of Member States and availability of manpower were codependent.Footnote 56 The Commission therefore had to set up a system that could address the disequilibrium between national labour markets (shortage of labour in Germany and the Netherlands which had greater productive capacities and surplus of unskilled labour in Italy) to make the best of the human capital of the Community Member States.Footnote 57
The adoption of the 1968 Regulation marked the end of the transitional period provided under Article 8 EEC for the establishment of the common market. According to the Commission, the provisions of this Regulation along with the Directive of the same year would serve to create European awareness by attributing identical rights to all Community migrants.Footnote 58 Moreover, the Commission envisioned the extension of these rights with the eventual purpose of making the free movement framework an element of geographic and vocational mobility for a single Community labour market.Footnote 59 In this setting, migration was perceived as a means of a functioning common market, which should be able to cover shortages in the respective national markets. Community workers were first and foremost manpower, and their movement was directed towards the optimal allocation of resources within the common market. Even though there was an attempt to present free movement ‘as something more important and more exacting than the free movement of a factor of production’,Footnote 60 the attribution of rights to migrants in this context was dictated by their economic contribution. At this stage, there was no perception of migrant workers as Europeans with connected historical and political identities.
In what was presented as an achievement towards the end of a political union, Levi Sandri stated that ‘all the citizens of the Member States are placed on an equal footing and therefore possess the same status’.Footnote 61 This equal footing, however, was framed in the pursuit of what he called ‘man’s most important practical activity’ – work, and not on the basis of their political existence in the Community.Footnote 62 At this stage of liberalization of free movement, we see an unlimited emphasis on worker status as the core source of the social and human rights tied to migration. With this in mind, Section 2.2 turns to the Court and examines the way in which it revolutionized the protection enjoyed by migrant workers.
2.2 Social Rights of Community Migrants: A Judicial (R)Evolution
In the secondary law adopted to implement free movement of workers’ provisions, the set of rights enjoyed by Community workers was dictated by Regulation 1612/68.Footnote 63 Article 7 of the Regulation implemented the non-discrimination principle of Article 48 EEC. It provided that migrant workers should enjoy equal treatment in relation to their working conditions and equal access to the social and tax advantages that are available to national workers. The Regulation also provided for the right of migrant workers to be joined by their family in the host Member State (Article 10), the right of family members to pursue employment (Article 11), and the right of migrant children to access education in the host Member State (Article 12).
In addition to this, Regulations 3 and 4 of 1958 and later Regulation 1408/71 were adopted under Article 51 EEC to coordinate social security between the Member States. Social security rights were harmonized to facilitate free movement of workers, and this objective conditioned the interpretation of the relevant regulations.Footnote 64 The Court developed a rich case-law on social security dealing primarily with the calculation of pension rights or accident costs.Footnote 65 By focusing on the abolition of barriers to ensure the greatest possible free movement for migrant workers and their families, it ensured the protection of Community workers.Footnote 66 However, in cases where the Court assessed that the rights of Community workers could not be protected under the more specific scope of application of Regulation 1408/71 on social security rights, it did not exclude the relevant rights from the scope of Community law. Rather, it used the principle of non-discrimination and created extensive rights, by recourse to the concept of social advantages under Article 7 Regulation 1612/68.
By reviewing of the case-law of the Court on the social rights granted to migrant workers (Section 2.2.1) and their families (Section 2.2.2), we can see how economic considerations conditioned the consolidation of social rights for migrant workers. Section 2.2.3 will demonstrate how this reasoning played out in relation to access to education by migrant workers and their families. The ratio underlying the judgments is that granting social protection to migrants and thereby improving their living and working conditions can guarantee labour mobility that will in turn lead to the development of the Member States’ economies. The achievement of growth was considered to bring about social progress as a by-product, by the raising of living standards for the worker in the form of social rights.
2.2.1 Social Advantages Extending the Scope of Equal Treatment
During the 1970s and 1980s, the Court addressed many different aspects of Regulation 1612/68 and developed a rich case-law that extended the rights granted to migrant workers beyond what might be imagined under a literal reading of the Regulation. The logic behind this approach can be found in the 5th Recital of Regulation 1612/68, which prescribes, inter alia, that free movement should be exercised in freedom and dignity, and that worker and their families should be integrated in the host country. The economic benefits of migration and its position as means to achieve further development of the Union were tied to an improvement in the living and working conditions of the migrant and eventual social progress of the Community.
The provision of Article 7(2) Regulation 1612/68 provided that migrant workers should enjoy equal treatment in relation to their working conditions, and equal access to the social and tax advantages that are available to national workers. This provision was central to the development of the relevant case-law. In all cases where the Court dealt with discriminatory practices against migrant workers, it resolved them by recourse to the non-discrimination principle of Article 48 EEC, and Article 7 of Regulation 1612/68, which was held to be a more specific application of Article 7 EEC.
The Court interpreted the concept of social advantages broadly and found that they did not have to be directly linked to a contract of employment. Specifically, it defined social advantages as all the advantages
which, whether or not linked to a contract of employment, are generally granted to national workers primarily because of their objective status as workers or by virtue of the mere fact of their residence on the national territory and the extension of which to workers who are nationals of other Member States therefore seems suitable to facilitate their mobility within the Community.Footnote 67
Already in 1969, the Court examined its first free movement case, which concerned protection against disadvantages resulting from fulfilment of military service.Footnote 68 Ugliola, an Italian worker in Germany, who had completed his military service in Italy, claimed the protection of a German law which provided that military service should be taken into account for the calculation of benefits related to the conditions of work and employment. Germany put forward an argument related to the economic burden it would have to bear if it were to apply the national benefits to workers who performed their military service in other Member States. Essentially, it suggested that in such a case, it ‘would be indirectly relieving the defence budget of those States’.Footnote 69 AG Gand’s Opinion in the case reflected the economic integration basis of the Community and highlighted that free movement of workers was promoted and protected due to the multilateral advantages drawn by all members of the Community.Footnote 70 The Opinion implied that workers were not seen as full subjects of the Community.Footnote 71 They were rather protected in a format similar to bilateral migration treaties: the nationals of a state of origin should enjoy protection in a host state because the host state’s nationals enjoy equal protection in the state of origin. The Court found that national law should extend to migrant workers in light of the principle of equal treatment under Article 48 EEC and 7 Regulation 1612/68.
Following this case, the Court’s docket consisted of cases on different national benefits and their classification under Community law. In most cases, where the benefits could not be classified under social security coordination, the Court used Article 7(2) of Regulation 1612/68 and declared them to be social and tax advantages. Thus, it established an extensive reading that fortified the social protection offered to workers.Footnote 72
At the same time, this reasoning was applied as regards discriminatory practices in Member States which were completely unrelated to employment. In Marsman, the Court found that Community workers were entitled to the special protection against dismissal. Such a protection was granted under German law only to workers who were resident in Germany. The Court held that the protection should extend to all migrants who work in Germany, even if they reside in another Member State.Footnote 73 In Mutsch, the Court held that the right to be heard by a Court in one’s own language was a social advantage under Article 7(2) of Regulation 1612/68.Footnote 74
Then, in Netherlands v Reed, the Court held that the right of a Community worker to be accompanied by his unmarried partner also constituted a social advantage.Footnote 75 Article 10(1) Regulation 1612/68 provided the right of migrant workers to be joined by their spouse. The wording of the provision could not be stretched to incorporate family reunification rights for the unmarried partner.Footnote 76 Despite this, the Court held that the right to be accompanied by an unmarried partner fell within the scope of Community law. This right was recognized as a social advantage for the purposes of Regulation 1612/68 in light of the economic function of the Regulation.Footnote 77 The Court found that the residence permit of the unmarried partner supports the integration of the migrant worker in the host state and thereby contributes to the free movement of workers framework.Footnote 78
In conclusion, the Court’s case-law at the early stages of the EU project dealt with discriminatory practices against migrant workers in the Member States. Such cases were resolved by recourse to the non-discrimination principle of Article 48 EEC and Article 7 of Regulation 1612/68, which was held to be a more specific application of Article 7 EEC. As the Community developed, the Court attempted to guarantee the more human aspects of free movement. However, the competence of the Community on the market could not go further than the prescriptions of Article 51 EEC on the harmonization of social security systems. Where the Court saw that the rights of Community workers could not be protected under the more specific scope of application of Regulation 1408/71 on social security rights (due to the personal nature of certain rights or the relation to specific benefits in kind), it used the principle of non-discrimination and created a set of rights under the concept of social advantages under Regulation 1612/68.
2.2.2 Extensive Interpretation of Social Advantages for the Families of Migrant Workers
In parallel with this broad interpretation of social advantages for migrant workers, the Court developed a line of case-law on benefits for workers’ families. This extension was affected by employing a similar line of reasoning. In most cases, the Court recognized derivative rights for migrant workers’ families as social advantages under Article 7(2) Regulation 1612/68. In the relevant case-law, the Court always clarified that social advantages granted to the worker’s family were in all cases derivative rights, and they were enjoyed by virtue of the person’s association to the migrant worker. This is because the members of a worker’s family were granted the right to move in order to join the worker and ensure that they migrate in dignity.Footnote 79 Thus, the status of the migrant worker was the source of rights for the worker’s family. The migrant worker was the only one engaged in the process of economic development of the Community and, as a result, the only subject that could draw rights directly from Community law. In this context, the Court recognized the right of workers’ families to fare reduction cards for large families that were available to nationals of the host Member State,Footnote 80 handicap allowance for dependent children,Footnote 81 and the right of dependent family members to old people’s benefit.Footnote 82
The protection afforded to workers’ families was further extended in Deak, where the Court held that unemployment benefits could be granted to TCN family members of Community workers as social advantages under Article 7(2) of Regulation 1612/68.Footnote 83 The Court held that Deak could not draw rights to a benefit under Regulation 1408/71 on social security, as this Regulation applied to benefits related to personal rights of Community workers, and he was a TCN associated to a worker.Footnote 84 In this context, the Court went on to examine whether protection could stem from Article 7(2) Regulation 1612/68, and it found that under this provision, advantages of this kind should be attributed to the worker’s family. An unemployment benefit for the worker’s child should be recognized as a social advantage of the worker themself due to the objective of effective exercise of free movement rights:
A worker anxious to ensure for his [sic] children the enjoyment of the social benefits provided for by the legislation of the Member States for the support of young persons seeking employment would be induced not to remain in the Member State where he had established himself and found employment if that State could refuse to pay the benefits in question to his children because of their foreign nationality.Footnote 85
Subsequently, the Court held that the principle of non-discrimination, which migrant workers enjoy in relation to their employment, also extended to their TCN spouses. In Gül, a Cypriot doctor married to a British worker in Germany was denied the renewal of his temporally limited authorization to practice medicine due to the fact that there was an increasing level of unemployment among doctors of German nationality.Footnote 86 The Court held that the right of access to the employment market enjoyed by the spouse of the migrant worker under Articles 10 and 11 Regulation 1612/68 was linked to the rights enjoyed by the worker under Article 48 EEC.Footnote 87 As long as the spouse relies on such ‘secondary rights’, their access to employment should take place under the same conditions of non-discrimination as those enjoyed by the migrant worker beneficiary of free movement.Footnote 88
Later, the Court built on Hoeckx and the entitlement of workers to minimex, a Belgian minimum subsistence benefit, finding that dependent family members were also entitled to this benefit. Lebon, a French national, lived in Belgium with her father, who received a retirement pension there.Footnote 89 She received minimex, which was discontinued on the ground of lack of evidence that she was looking for a job. The Court considered that Lebon came under the scope of Community law, since her father was a retired Community worker. It thus confirmed the extension of equal treatment regarding social advantages under Article 7 Regulation 1612/68 to members of the worker’s family.Footnote 90 It also emphasized that this extension of equal treatment referred to rights derivative from the worker and extended to family members only to relieve the migrant worker from undue burden. As a result, the descendants of migrant workers can rely on equal treatment only to the extent that they are dependent on the worker.Footnote 91
Such rights as are enjoyed without regard to the nationality of the family members required an association with the worker. This means that benefits that are attributed in the form of personal rights could not be claimed under Article 7(2) of Regulation 1612/68.Footnote 92 It is the association to a worker, or the dependency on them in certain cases, that forms the basis of the rights of family members. At this stage of Community law, families and family members were not protected independently out of considerations of humanity; instead, they were situated within the functional logic of the Community. They were granted rights because they facilitated migration in dignity.Footnote 93 What is more, when the association with the worker ends, there is no longer a basis to claim the rights under Community law. This was confirmed in Diatta, where the Court implicitly held that an official divorce would take away residence rights of a TCN spouse of a migrant worker.Footnote 94
2.2.3 The Social Protection of Migrant Workers and Their Families in Education
The case-law analysed in Section 2.2.2 shows how the Court interpreted the concept of social advantages broadly as a means to facilitate free movement and to promote the economic objectives served by labour mobility. The economic progress supported by labour migration would bring about social progress for the migrant as a by-product. This section turns to how this reasoning played out in relation to access to education. It shows that equal access to education was guaranteed for Community workers and their families because it supported personal development that could make them more competitive in the internal market. Non-discrimination and the effective exercise of free movement rights have been examined in a series of preliminary rulings related to enrolment fees for access to education or grants related to maintenance while in education.Footnote 95 Sections 2.2.3.1 and 2.2.3.2 will look at how the effective protection of social rights developed in the case-law related to access to education of children of Community workers (Section 2.2.3.1) as well as of Community workers themselves (Section 2.2.3.2). The analysis will highlight the close link between economic and social objectives also in relation to this type of social rights.
2.2.3.1 The Double Objective of Access to Education for Children of Community Workers
The case-law of the Court during the 1970s made groundbreaking steps in relation to the protection of children of migrant workers and their access to education. Article 12 of Regulation 1612/68 provided for the equal access of migrant children to education in the host Member State. This provision was interpreted by the Court in relation to benefits of different kind and the rights of access to education for children of migrant workers under Article 12 of Regulation 1612/1968.
The first line of cases examined disability benefits for children of migrant workers. In Michel S, the Court recognized that the child of a Community worker was entitled to access any benefits aimed at improving the fitness for work of disabled individuals under Article 12 Regulation 1612/68.Footnote 96 Subsequently, in F, the Court found that benefits under Article 12 could also be granted to children of migrant workers, even when such children had no prospect of employability.Footnote 97 In that case, Belgium, where the migrant family resided, argued that the only reason why disability benefits should be granted to children of migrant workers was to improve the children’s fitness for employment. This could not be the case for F’s child, who had no prospect of employment due to their disability. The Court did not accept this argument. Similar to Deak, the Court put forward the effective enjoyment and exercise of free movement rights and emphasized that if this benefit was not recognized,
[A] worker anxious to ensure to his child the lasting enjoyment of the benefits necessitated by his condition as a handicapped person, would be induced not to remain in the Member State where he has established himself and has found his employment.Footnote 98
In these first cases, the derivative rights of children were interpreted in an instrumental manner. Children of migrant workers should enjoy social rights in the host Member State because otherwise the worker would not be able to move and become an active part of the Community labour market. The second line of case-law of the Court developed by reference to the right of migrant children to equal access to education in the host Member State.
In Casagrande, the Court addressed the question whether migrant children of Community workers should have access to education grants available to children of German nationals. The case was resolved in favour of the migrant children with reference to the fifth recital of Regulation 1612/68,Footnote 99 which enshrined the intended purpose of integration of the migrant family in the host country. This reasoning was confirmed in Alaimo.Footnote 100 As a result, migrant children were entitled to equality not only in terms of admission to education but also, more broadly, with respect to all measures, adopted by Member States, that could facilitate their course of education.
The issue was developed by the Court in di Leo, which concerned a German educational grant for attendance of courses outside Germany.Footnote 101 The daughter of an Italian worker was refused this grant, because under national law, even though the grant could be provided to children of Community nationals, the education could not be provided in the state of which they were nationals. Despite the clear case-law on Article 12 of Regulation 1612/68 and its application to educational grants, the German and Dutch governments argued that if the children of a migrant worker were to study in their state of origin, the objective of the Regulation, which is to promote integration, would not be pursued.Footnote 102
The Court rejected these arguments. It emphasized that integration of migrant workers in the host country should take place in respect of liberty and dignity.Footnote 103 To that end, it was essential that children of migrant workers, who resided with them in the host country, should be able to choose their education in the same way that children of nationals did.Footnote 104 As a result, Article 12 of Regulation 1612/68 also extended to grants for training or education abroad. However, Article 12 imposed obligations only on the Member State in which migrant workers resided. In Humbel and Edel, the Court held that protection from discrimination in relation to access to education could not be extended to create obligations for a third Member State in relation to any migrant worker within the Community.Footnote 105
Overall, in the aforementioned case-law, the Court acknowledged various objectives underlying the broad interpretation of secondary law. First, the rights of children were meant to facilitate the function of their worker parent in the internal market. Especially when it comes to children with no prospect of employment, the central idea was that the worker should be facilitated in the host Member State; otherwise, they would be less willing to migrate. This reason is a primarily economic one tied to providing incentives for labour migration. Second, equal access to education for migrant children is ensured in order to achieve integration. Integration in this case is sought as a purely social objective. It is a recognition that the common historical and cultural background of Community workers is not enough in itself. Rather, action needs to be taken to promote the social advancement of migrant families by facilitating their incorporation into national societies. Section 2.2.3.2 turns to migrant workers themselves and their rights to education to investigate how economic and social objectives appear in their protection under Community law with regard to education.
2.2.3.2 Migrants’ Rights While in Education: Protection Dependent on an Effective Market Link
The Court’s extensive interpretation of social advantages presented earlier in Section 2.2.1 also applied to maintenance grants for students, insofar as they could qualify as workers. This was confirmed in Lair, which concerned training grants requested by a French national in Germany.Footnote 106 Germany refused to award the grants on the ground that the worker had not been engaged in occupational activity in Germany for five years prior to their studies. The Court took this opportunity to clarify the difference between access grants and maintenance grants. It reiterated that grants related to registration and tuition fees, insofar as they concerned access to education, came within the scope of the Treaty as conditions of access to vocational training, and Article 7 EEC was thus applicable.Footnote 107 In contrast, grants attributed by Member States to students for maintenance during their education fell outside the scope of Community law as they fell under educational policy, which was a competence retained by the Member States.Footnote 108
The Court could have concluded the case at this stage – but it did not. It tried to examine whether that type of assistance could fall under the notion of social advantage for migrant workers under Article 7 of Regulation 1612/68. In this regard, Article 7(3) provided for access to training in vocational schools and retraining centres. But the school in question did not fall in either of these categories. This did not preclude the Court from qualifying the training grant at issue as a general social advantage under Article 7(2) of Regulation 1612/68.Footnote 109 During the proceedings, Member States argued that once a person became a student, they lost their status as workers and, accordingly, the entitlement to social advantages in the host Member State.Footnote 110 The Court resisted such a limitation of the right to equal access to social advantages. Specifically, the Court held that as regards grants for university education, the status of worker could form the basis of entitlements as long as there was a relationship between the previous employment and the course of study.Footnote 111
This function of studies as a means of developing a worker’s capacities can only be invalidated if ‘a migrant has involuntarily become unemployed and is obliged by conditions on the job market to undertake occupational retraining in another field of activity’.Footnote 112 Hence, the granting of entitlements to migrant students presupposes that it takes place in the context of professional development that could reinforce their professional mobility. If the course of study had no link with one’s occupational activities, then the status of worker and the benefits that come attached to it could not be retained.Footnote 113
In Brown, the Court additionally held that when a Community national entered in an employment relationship for a short period (eight-month traineeship in this case) with a view to undertaking studies in the same field, and where his employer employed him only because he was already accepted for admission, that person qualified as a worker under the Treaty, but he did not qualify for maintenance benefits related to study under Article 7(2) of Regulation 1612/68.Footnote 114 This created a ‘legal loophole’ according to O’Keeffe and Johnson.Footnote 115 Prospective students could take up casual work in the country where they intend to study and qualify as workers.Footnote 116 In such cases, they would be eligible for all the benefits available to workers in that state under Regulation 1612/68. This issue was clarified in Raulin.Footnote 117 There the Court held that enjoying benefits related to education through the concept of social advantages under Article 7(2) of Regulation 1612/68 required an independent employment relationship prior to pursuing studies. The nature and duration of the prior employment had to be taken into account and the migrant needed to show that there was an effective and genuine exercise of economic activity.Footnote 118
Finally, in Matteucci, the Court held that equal treatment of migrant workers should also apply in relation to scholarships awarded pursuant to a bilateral agreement between two specific Member States.Footnote 119 Specifically, the Court observed that even if such types of agreement fell under the cultural sphere, they could not jeopardize the rights of Community workers to equal treatment.Footnote 120 What is more, similarly to the case-law on access to education,Footnote 121 the Court held that Article 7(2) of Regulation 1612/68 created a responsibility in the social sphere on each Member State to ensure equality of treatment for every Community migrant worker whether they pursued training in the territory of their host Member State or abroad.Footnote 122
This case-law shows that the Court proceeded in far-reaching interpretation and application of Community law in the educational sphere. This led to a significant enlargement of equal treatment rights when it comes to maintenance while in education. Nevertheless, this was never disconnected from the functional logic of education in the Community legal order. The Community worker was not attributed rights on the grounds of human dignity and freedom of choice on how to pursue life, or at least the Court’s reasoning does not point to such bases for justification. Rather, they were attributed rights to survive while better tailoring themselves to serve the market. This close interdependence of social rights for migrants and economic growth under Community law points to considerations that would nowadays fall under the economic and social pillars of sustainability.
Overall, the analysis in this chapter demonstrated how free movement was progressively opened up to ensure orderly migration of workers and to avoid detrimental effects on national economies from lack of labour migrants. The demand of primary law to allow free movement of workers was gradually achieved via secondary law that evolved with the incorporation of clauses related to national labour market priority and the possibility to restrict free movement for economic reasons. This highlights the presence of economic sustainability considerations driving the applicable legal framework that operationalized Article 48 EEC. Next to the legal framework, the rulings of the Court revolutionized the social rights of Community migrants by an extensive application of the free movement provisions. The analysis in this section revealed the centrality of economic objectives in the reasoning of the Court as a basis for broader interpretations facilitating free movement. By promoting such objectives, the Court also guaranteed social progress for the Community migrants and their families in the form of rights they were entitled to. Against this background, Chapter 3 engages with the material related to migrants from third countries and investigates whether and how similar considerations drove the Commission’s and the Council’s agenda to coordinate national labour migration policies.
3.1 The Prelude to an Admission Policy: Coordination of National Positions on TCN Migration
By the time of the completion of the common market by the adoption of Regulation 1612/68, it was clear that the Community’s workforce would not be enough to cover its labour needs and to ensure the productive capacity of Member States. Member States continued to employ workers from non-member countries at high rates to fill their vacancies. The First Medium-term Economic Policy Programme issued by the Commission in 1967 showed that recourse to workers from non-member countries would become necessary as the years passed.Footnote 1 Essentially, it was at this stage that the Commission started pushing for comparison of national recruitment policies to establish whether there existed common interests that could form the basis for closer cooperation in this field.Footnote 2
The change in the economic situation and the declining need for labor forces in the 1970s did not alter the Community approach. In this regard, the first explicit articulation of the need for a Community migration policy appeared in the 1974 Action Programme in Favour of Migrant Workers and their Families.Footnote 3 In this Programme, the Commission emphasized the benefits of migration for the economies of the Member States:
The influx of migrant workers on this scale has profound consequences for the economics of the Member States. First, their presence has contributed to a faster rate of economic growth than would otherwise have been attainable – least without much greater rates of capital investment. Second, they have given the system a greater degree of flexibility than it would otherwise have had. The fact that migrants are available in such large numbers and are usually engaged in short term-contracts – typically one year – has facilitated the adjustment of the labour force, both in individual enterprises and in the economy as a whole, to short-term changes in demand, and has therefore, facilitated anti-cyclical policies. Third there is evidence that the ready availability of a relatively cheap source of unskilled manpower has retarded the search for greater productivity in Community industries.Footnote 4
Despite the economic problems that co-occurred with migration during a period of stagnation, the Commission highlighted what should be the driver of a Community migration policy. In this, the 1974 Action Programme mentions that ‘[t]hese solutions must take account of the migrant workers’ needs and their rightful place in a society to whose prosperity and well-being they contribute’.Footnote 5 The contribution of the migrant workers to the economic development of the host society set the basis for the need to attribute rights. In this alignment between the treatment of Community and TCN workers, we see the implicit attempt of the Commission to frame a sustainable migration policy, that is, a migration policy that supports the economic development of the Community and attributes rights to migrants in view of securing their social progress and relatedly social cohesion.
Against this backdrop, this section presents and evaluates the first binding measure adopted by the Community on coordination of national migration policies in 1985, a measure that should be seen as the prelude to a Community policy on admission that was completed a lot later, in the new millennium. Subsequently, the analysis of soft-law instruments and legislative measures in Sections 3.2 and 3.3 will show that, in this early period, emphasis was placed on shaping a migration policy characterized by full extension of equal treatment to TCN workers and their families. Overall, this chapter shows the desire of the Community, as expressed via its institutions, to fully coordinate labour-migration policies and to assimilate the rights of migrant workers, so as to support economic growth in the Member States and to raise the living standards of the population legally resident in the Community, regardless of their nationality.
In 1979, the Commission started encouraging the coordination of national migration policies in order to ensure the better functioning of the labour market, as well as the harmonious development of Member States. The attempt was initiated by presenting the coordination of admission of migrants from third countries as corollary to the Community free movement framework:
Insofar as the terms and conditions under which Third Country citizens are admitted to a State, the decision on admission is related fundamentally to labour market policy, at national as well as at Community level. It is, in fact, labour market policy which generally determines the conditions and terms under which a non-Community migrant is admitted or allowed to remain, and, in this regard, consultation on migration policies vis-a-vis Third Countries, constitutes a corollary to the Community policy of free movement of Community workers.Footnote 6
In this light, the Commission presented the need for action to maximize the effects of migration for economic growth. As it suggested, the lack of coordination of national migration policies did not allow for the most effective use of workers, while at the same time the lack of central planning had led to the concentration of migration in the central industrialized areas of the Community and to the creation of economic and social problems for the periphery.Footnote 7 The Council also recognized the need for a policy that would allow consultation between the Member States on their national migration policies with third countries.Footnote 8
In a Resolution on the matter, the Council mentioned Article 117 of the EEC Treaty, which referred to the need to promote improved working and living conditions for all the workers in the Community as a legal basis for such action.Footnote 9 Eventually, Commission Decision 85/381/EEC was adopted, which set up a prior communication and consultation procedure on national migration policies in relation to third countries.Footnote 10 The legal basis used was Article 118 EEC, which provided that the Commission should promote the close cooperation of Member States in the social field and particularly with regard to employment and working conditions. The Decision required Member States to inform the Commission on draft measures and agreements related to migration from third countries and provided for consultations with the Commission, to coordinate common positions and ensure that national action does not compromise the Community labour market policy.
This Decision was met with resistance from Member States for fear of encroachment on national competences. Several turned against it and requested that it be declared void. In Germany a.o. v Commission, five Member States claimed that the Commission did not have competence to adopt a binding decision in the field of migration, which field fell within the exclusive competence of States.Footnote 11 Matters related to migration from third countries were, they argued, part of their sovereign core and went beyond the social field mentioned in Article 118 EEC.Footnote 12 The Court found that
[M]igration policy is capable of falling within the social field within the meaning of Article 118 only to the extent to which it concerns the situation of workers from non-member countries as regards their impact on the Community employment market and on working conditions.Footnote 13
In this finding, the Court aligned the rationale behind the Community competence with the points of Commission Communication of 1979, which mentioned that the coordination of migration policies is corollary to free movement.Footnote 14 As AG Mancini noted on the same matter,
The admission of foreigners, which is haphazard and ill-planned and often implemented illegally, seriously risks jeopardizing that policy. A series of measures should therefore be studied jointly with a view to adopting a coherent approach to the immigration of workers from non-member countries by safeguarding and strengthening the ‘priority for Community nationals’ in the Community labour market.Footnote 15
The Court confirmed the Commission’s competence to legislate and held that national migration policies should take into account action at Community level and specifically in the context of the labour market policy in order to not undermine its results.Footnote 16 It further held that such competence had the nature of procedural coordination. This means that Community action had to be restricted in coordination and could not involve the adoption of substantive measures that would create obligations for Member States or rights for TCN workers. The Court upheld Article 118 EEC as the basis of the Decision; however, it declared the decision void as regards two specific provisions extending Community powers.Footnote 17 The Commission then adopted Decision 88/384/EEC, which reproduced the provisions of Decision 85/381/EEC and included amendments to comply with the Court’s judgment.Footnote 18
In this early case-law, the Court confirmed both the Community competence on TCN migration and the rationale for such competence. In line with the Commission’s reasoning for the need for such a Decision, it became clear that national migration policies were not only related to the sovereign core of Member States and their right to control population movement; they also played a significant function at Community level. That is, they served the economic objective of ensuring the harmonious development of economic activities in the Community through a functional Community labour market. Both the EU institutions, in preparing and adopting the Decision, and the Court, confirmed the corollary nature of migration to free movement. This is apparent in the need to ensure that Community workers are not in a less competitive position because of national (lack of) planning. But most importantly, it appears in the alignment of objectives between free movement and migration coordination; they are both necessary means to ensure the economic objective of the Community.
In what follows, we shall see how similar objectives appear in parallel with social considerations in a series of attempts to grant rights to migrant workers. Unlike Community workers, TCN workers who did not fall under Association Agreements did not enjoy rights under primary or secondary law. However, by looking at soft-law instruments issued at that time, we will see that the progressive achievement of equal treatment between Community workers and TCN workers as regards their working and living conditions was the constant goal of the Community migration policy before the Single European Act. TCN workers and Community workers were thought of as facing the same problems in their social and working life.Footnote 19
3.2 The Case for Abolition of Discrimination between All Migrant Workers
As early as the 1974 Action Programme, the Commission had suggested that discrimination between TCN workers and Community workers as regards living and working conditions should be eliminated.Footnote 20 In the 1979 Communication that predated the Decision reviewed previously, the Commission stated that,
The social situation which arises from inequality of treatment, and the failure to insert migrant workers and their families into the economic and social life of the host country, leads to tensions and discriminations which are potentially dangerous.Footnote 21
This shows the interdependence of economic and social considerations behind the Commission’s approach. The demand for labour migration necessary to achieve economic growth would need to be paired with social rights to ensure what we would call today social sustainability. Relatedly, it was considered self-evident that TCN migrants who live and work in the Community should enjoy equal treatment.Footnote 22
The 1985 Commission guidelines for a Community Policy on migration set the goal of horizontal equality between Member States nationals, Community and TCN migrants, and required the extension of equal treatment to the social security field. In this regard, the Commission noted that ‘[f]rom the social standpoint, workers in the same objective situation cannot be treated differently on the sole basis of nationality’.Footnote 23 Even though the Commission realized that, especially as regards social security, this would also require the involvement of third countries (for aggregated periods of insurance and transfer of benefits), it still promoted the establishment of such agreements based on Community principles.Footnote 24 Similarly to the Commission, the Parliament was also insistent on achieving full equality between Community workers and TCN workers.Footnote 25
Aside from the economic contribution of migrant workers as the basis for equal treatment, the need for active measures to advance their social position also appears in the relevant material. During the rapid economic development of the 1950s and 1960s, Community institutions focused solely on employment policy as means to ensure the social advancement of migrant workers. Nevertheless, in the context of the economic stagnation and unemployment that persisted throughout the 1970s and 1980s, it became clear that the social advancement of migrant workers would need to go further than employment policies to be successful.Footnote 26 In this context, more emphasis was put on equal treatment as a principle that should guide integration policies related to access to residence, education, vocational training, housing, and working environment.Footnote 27 Social advancement via integration was also connected to the civic rights of migrant workers. During the period under review, the Commission, the Parliament, and the Economic and Social Committee were demanding the granting of the right to vote in local elections for all migrant workers and their families living and working on the Community territory, regardless of nationality.Footnote 28
However, this ambition of securing equal treatment was met with resistance from the Council. Under a more restrictive approach, the 1985 Council resolution on the Guidelines for a Community Policy on Migration confirmed the desire that ‘everyone within it [the Community] should have an equal opportunity of deriving advantages and making a contribution’.Footnote 29 A right of TCN migrant workers to equal opportunity is far from the Commission and the Parliament vision of full application of the free movement regime to TCN workers, voting rights in local elections, and equal access to the social security systems of Member States. The different approach of the Council can be explained by its proximity to national politics. After all, this was a time characterized by national bans on migration due to prevailing unemployment. The sensitivity of extending rights to migrants in such a national political climate will be seen more clearly in Chapter 6, where the analysis focuses on how national fears sealed the fate of many of the Commission’s plans to promote the rights of migrant workers.Footnote 30
In any case, a review of the relevant soft-law instruments shows that both economic and social objectives were tied to the demand of equal treatment for TCN workers. Equal treatment was linked to the contribution of the individual migrant to the project of growth. At the same time, we see an emphasis on the need to advance the living conditions of the population resident in the Community and to maintain social cohesion. The social considerations behind the promotion of migrant rights will become clearer in Section 3.3, which considers measures devised to ensure equal access to education for children of migrant workers.
3.3 The Social Imperative of Granting Access to Education to Migrant Children
Access to education for children of migrant workers was one of the first migration-related measures adopted at the Community level. The issue had been on the agenda since the 1960s, and gained the attention of Member States during the 1970s and 1980s. At this point it was becoming clear that migrant workers had set up family lives in the host countries, leading to a new generation of migrant children that had to be integrated in Member States to ensure their social advancement and avoid marginalization.
In 1975, the Commission published a proposal for a Directive on the education of children of migrant workers.Footnote 31 The considerations behind the proposal were twofold. First, the 1974 Council Resolution concerning a social action programme prioritized actions related to the reception and education of children in order to improve free movement of workers.Footnote 32 And second, in the same resolution, the Council set the objective of achieving equal treatment between EC and TCN workers and their families as regards their living and working conditions.Footnote 33 In this context, the proposed Directive would establish a right to tuition-free compulsory education in the host country, and promote the teaching of the language and culture of origin. The system was conceived to improve the living and working conditions in the Community, and it was suggested that the right to education provided in the proposal should cover all migrant children residing in the Community, regardless of their country of origin.Footnote 34 The Directive sought on the one hand to assist in the social and personal advancement and integration in the host country, and on the other to ensure the maintenance of the possibility of repatriation. Specifically, the Commission wanted to ensure that, by having access to courses in their mother tongue and their national culture, migrant children would maintain the possibility of reintegration into the country of origin.Footnote 35
This proposal was approved by the European Parliament, which considered it an essential part of the educational aspects of the Community’s Social Policy.Footnote 36 Showcasing the interdependence of economic and social objectives behind the proposed instrument, the Parliament Committee on Cultural Affairs and Youth suggested that migrant recruitment to cover labour demands should also be followed by measures that ensure the social well-being of the migrants.Footnote 37 The European Economic and Social Committee (EESC) also welcomed the inclusion of all migrant children in the scope of the directive.Footnote 38
The initial proposal was based on Article 49 and Article 235 EEC. Article 49 EEC concerned the adoption of Directives or Regulations on measures necessary to ensure the realization of free movement of workers. Article 235 EEC, on the other hand, was a general clause providing for the adoption of measures necessary to achieve the objectives of the Community in cases where the Treaty did not provide necessary powers. Due to this, the Commission put forward Article 49 EEC as the legal basis for social measures concerning Community workers. Then, in line with the Council resolutions that provided for the objective of gradually establishing equal treatment for all migrant workers, the Social Action Programme, and the objective of Article 117 EEC to promote an improved standard of living of workers, the Commission argued that Article 235 EEC should be used as a legal basis to extend protection to TCN workers.Footnote 39
The proposal of the Commission was not welcomed by the Member States for various reasons. The Danish, Italian, and French delegations in the Council disagreed with the choice of legal basis. The Danish delegation insisted that the Community had no jurisdiction in matters affecting TCNs and that, as a result, no binding instrument could be adopted on the matter.Footnote 40 The Italian delegation objected to the joint use of Articles 49 and 235 EEC. The Italians did not contest the Community competence on TCNs. Rather, they suggested that the Directive should only cover EC nationals and be based on Article 49 EEC, whereas a different binding measure should be put forward under Article 235 EEC for TCN workers.Footnote 41 Eventually, the French delegation joined the opposition, and suggested that Article 49 EEC could not serve as the basis for covering TCN workers, but that similar measures could be extended to TCN workers by means of a non-binding act.Footnote 42 Besides these countries, Luxembourg, the UK, and Germany were in favour of a single instrument for both Community and TCN workers, but suggested that such an instrument should be non-binding.Footnote 43 Their disagreement did not relate to the personal scope of the instrument but with its material one. These states considered educational policy to be part of national competence.
Eventually, a compromise was reached: the Directive maintained Article 49 as its sole basis, and excluded children of TCN workers from its scope. At the same time, a declaration was added to the minutes of the Council Meeting of 25 July 1977. The declaration confirmed the Council’s intention that the measures adopted in compliance with the Directive should also apply to children of TCN migrants. This would allow the delegations that were in favour of a single instrument for all migrant children to introduce higher standards of protection while implementing the Directive.Footnote 44
In the negotiation of this instrument, we see how national disagreements over the personal and material scope of Community law led to the exclusion of children of TCN workers from the text of the Directive. Despite this exclusion, it is worth reflecting on the intimate link between the social and economic objectives of measures attributing rights to migrant workers’ families. As it appears in later documents of the Commission, the education of migrant children was a measure aimed at addressing the underachievement and marginalization of immigrant groups. On the economic side, education was connected to the growing realization on behalf of the Community that migrant communities would be necessary for future demands of the labour market and, as a result, education could play a central role in that.Footnote 45 The social advancement of migrant workers’ families was set in the context of improving the living and working conditions of the people residing in the Community regardless of their nationality. At the same time, a utilitarian approach to their education was adopted to ensure that the labour market demands will be covered by the offspring of migrant workers, so there is no need to recourse to more migration.
3.4 The Double Economic and Social Objective of the Community Migration Policy
During this period, the growing percentage of TCN workers present in Member States created the impetus for the adoption of a first set of legislative instruments, as means to create an incipient Community migration policy. The projected economic and social objectives of the Community dictated a need for coordination of national migration policies and attribution of rights to migrant workers. These objectives have been presented previously in this chapter in the following way.
First, there was the economic objective of ensuring the proper functioning of the Community labour market. Member States were required to safeguard free movement for Community workers and respect their obligations towards the Community manpower before hiring TCN workers.Footnote 46 This is closely related to a liberal trade theory on international migration that presupposes that in the long term, economic growth will reduce the need for factor mobility.Footnote 47 Insofar as the Community had labour demands that could not be covered by the regional labour force, there was a preference to adopt measures that would make the TCN workers already resident on the Community territory more appropriate for the market, rather than opening the door to more TCN migration. The initiatives related to the education of migrant children and the coordination of national positions on migration, which were reviewed in Sections 3.1 and 3.3, can be seen to fall under this economic objective.
Second, there was the social objective linked with TCN workers’ contribution to growth. Due to their status as workers, migrants had to be treated with respect and the Community had to take action for the improvement of their living and working conditions. The measures related to education of migrant children and the emphasis on equal treatment, as the central principle guiding integration were linked to the pursuit of this objective which is identical for all migrants regardless of their origin. At the stage of Community law under examination, the Commission envisioned a policy on labour migration that would cover both TCN workers and Community workers without discrimination. Both these categories of migration were necessary for the economic development of the Community, and both should be attributed rights to ensure social progress in the Community. This grounding of the Commission’s approach on the parallel pursuit of economic and social objectives is essentially an attempt to ensure a system of sustainable migration.
This aspiration did not meet much resistance from the Council, as long as there were national labour demands to be filled. While the Commission consistently backed this aspiration in the years that followed, the economic effects of the oil crisis and the increase in unemployment gave rise to a more restrictive approach in the Council as we shall see in detail in Chapter 6. In the meantime, Chapter 4 investigates the regulation of migration in the context agreements concluded by the EU with third countries either with the aim of instituting closer cooperation (like Association Agreements) or with the aim of accession.
4.1 Turkish Workers under the EEC–Turkey Association Agreement
After the examination of the evolution of the free movement framework in Chapter 2, and the ambition of extending rights to TCN workers regardless of their country of origin in Chapter 3, this chapter addresses the special arrangements made to regulate migration from specific third countries. First, it will be shown how social and economic objectives, paired with favourable economic circumstances, laid the foundation for the extensive protection of Turkish workers under the EEC–Turkey Association Agreement. Then, Section 4.2 shows how economic cooperation with specific countries that were crucial for supplying migrant labour led to the attribution of rights to third-country nationals, despite their exclusion from primary and secondary law. Finally, Section 4.3 turns to enlargement processes and investigates how Accession Treaties concluded during this period were framed in light of ensuring the promotion of economic objectives, while limiting migration rights for nationals of acceding states. The analysis reveals the constant attempts by EU institutions to ensure that migration policy is aligned with the objectives of growth and progress, and thereby with the economic and social pillars of sustainability.
The EEC–Turkey Agreement was concluded in 1963 with a view to preparing Turkey for eventual accession to the EU. Such an evolution has not materialized to this day.Footnote 1 Despite the fact that the accession has not occurred, the rights granted by this agreement to Turkish workers are quite extensive, especially as judicially interpreted, as we will see in Chapter 7. Due to this, their privileged status compared to other third country-national workers has been acknowledged in scholarship.Footnote 2 The aim of the EEC–Turkey Agreement enshrined in Article 2 was the continuous and balanced strengthening of economic relations between the parties, taking into account the need to ensure both the economic and social development of Turkey. In addition, the importance of Turkish workers for the development of the EU and for the functioning of the Turkish economy was acknowledged by all parties.Footnote 3
Labour migration was regulated in the Agreement in the following way. Article 12 provided that the parties should be guided by Articles 48, 49, and 50 EC Treaty for the purpose of progressively securing free movement of workers. Article 36 of the Additional Protocol to the Agreement provided that free movement of workers between Turkey and the Community must be secured by progressive stages in the period between the end of the twelfth and the twenty-second year after the entry into force of the agreement subject to rules adopted by the Association Council.Footnote 4 Article 37 provided that Turkish nationals employed in the Member States should enjoy equal treatment as regards conditions of work and remuneration. Finally, under Article 38, the Association Council had the possibility to return to issues related to the geographical and occupational mobility of Turkish workers in order to facilitate their employment in the Member States as the association progressed. Article 39 provided that the Association Council would eventually adopt social security measures for the workers and their families, whereas under Article 40, it could make recommendations for the exchange of young workers guided by Article 50 EC.
In the progressive development of the Association, the Association Council adopted specific decisions in order to implement Article 12 of the Agreement and Article 36 of the Additional protocol.Footnote 5 During the process of negotiating these decisions, the Turkish side put continued emphasis on the need to ensure priority for its nationals in the EU labour market.Footnote 6 The Community resisted this prioritization as inconceivable, since, in parallel to this Agreement, it was negotiating Association Agreements with all the countries from which it received migrant workers. Next to the Association concluded with Greece, it was negotiating with the Maghreb countries and Yugoslavia, which were also labour-exporting countries.Footnote 7 Thus, giving priority to Turkish workers would necessarily mean giving priority to all the other countries under negotiation, which would make the provision pointless.Footnote 8 At the same time, Member State delegations invoked issues of political (in relation to antagonisms with other Mediterranean countries with which they had historical bonds), economic (in relation to the effects such a priority would have in case of a potential recession in the Community economies), and technical nature (in relation to the practical procedure of recruitment).Footnote 9
Despite this, the Community sought to find a solution for a rational use of Turkish workers that could assist in the harmonious economic development of both the Community and Turkey.Footnote 10 What could be offered to achieve this was the implementation of the principle of non-discrimination by an analogous application of Article 48(2) EC, and the easing of restrictions to professional and geographic mobility within the Member States in a more preferential way compared to other migrant workers.Footnote 11 In this regard, the position of economic and social considerations and their effects on the rights granted to migrant workers in the context of International Agreements was correctly conceptualized by Edoardo Martino, the Community Commissioner for External Relations in the period of 1967–1970, during a speech to the EEC–Turkey Joined Parliamentary Committee.
Il convient de remarquer, a cet égard, que le problème de la libre circulation des travailleurs turcs à l’intérieur de la Communauté parait avoir été jusqu’à présent quelque peu surestimé. En effet, ce qui compte n’est pas seulement le statut juridique en tant que tel des travailleurs turcs, mais aussi la conjoncture économique favorable, d’une part, l’expérience et la qualification technique des travailleurs turcs, d’autre part. Dans la mesure où ces deux conditions sont réalisées le problème de la libre circulation des travailleurs turcs à l’intérieur des états membres de la Communauté pourrait apparaitre en quelque sorte un peu théorique.Footnote 12
In this passage, Mr Martino suggested that the issue of granting rights to Turkish workers was very much dependent on what these workers brought to the Community markets in terms of technical expertise, and the prevailing economic conditions in the Member States. As long as there was a favourable economic climate, experienced workers would be needed to cover labour demands, and the question of granting them free movement rights became theoretical. The legal protection to be accorded to migrant workers should then be seen as closely tied to the economic conditions existing at the time when the relevant legal instruments are negotiated.
Ultimately, the rights of Turkish workers were established in Decision 2/76 adopted as the first stage in securing free movement of Turkish workers, and Decision 1/80 intended to improve the treatment of workers and their families in the social field. These Decisions provided that Turkish workers duly registered as belonging to the labour force of a member would be entitled, after a specified period of legal employment, to free access to any employment of their choice. What is more, Turkey succeeded in securing a priority status in the Community labour market, a provision which, together with the aims of the Agreement and the function of Turkish workers, can be seen as the basis for the differentiated treatment of Turkish workers compared to other TCN workers as we shall see in Section 7.1.1.Footnote 13
These Decisions also included safeguard clauses. Article 6 of Decision 2/76 and Article 12 of Decision No 1/80 provided that in cases where a Member State experienced or anticipated disturbances in the labour market which could affect the standard of living or level of employment in a region, branch of activity, or occupation, it could refrain from granting rights to Turkish workers and their families. This safeguard clause should be seen in parallel to Article 15 of Decision 1/80, which provided that the Association Committee should exchange information on the economic and social situation in Turkey and the outlook of the labour market to ensure that the provisions of the Decision do not cause the danger of disturbance of the Member States’ employment markets. Decision 3/80 was also adopted to coordinate social security for Turkish workers.Footnote 14
It should be noted that EEC–Turkey Agreement and its implementing Decisions did not create a right of residence for Turkish migrant workers. Member States maintained competence on regulating the admission of Turkish workers and their families under national law. What was regulated was the progressive access of Turkish workers to the Community labour market by a system based on attribution of rights depending on the period the migrant workers had spent under employment. Arguably, rights were earned by Turkish workers to the extent that they contributed to the Community project of growth by their long participation in national labour markets. The specific provisions that regulated this attribution of rights are examined in more detail in Chapter 7, together with the case-law which interpreted them. In the relevant analysis, it becomes apparent that not only the aim of the agreement but also the function of the individual migrant was taken into account by the Court in interpreting the provisions of the EEC–Turkey Agreement and its implementing Decisions.
4.2 A Minimum Right to Non-discrimination in Association Agreements
Provisions granting rights to TCN workers were also included in agreements concluded by the EU with countries from which it traditionally imported labour. Next to the Association Agreements concluded with Greece and Turkey, which foresaw the possibility of Accession, the first Cooperation Agreements that included labour migration clauses were signed with Morocco, Algeria, and Tunisia in the 1970s.Footnote 15 These Agreements had the purpose of contributing to the economic and social development of these third countries.Footnote 16 They established cooperation in the field of labour, which was guided by similar provisions in all three Agreements. At the time of their negotiation, workers from Morocco, Algeria, and Tunisia were employed in large numbers in various Member States.Footnote 17 The countries of origin of TCN migrants were suffering extreme demographic pressures and had no means to finance the creation of new employment.Footnote 18 Migrant work in the Community was crucial for their development, as it both eased pressure in the local employment markets and supported national economies through remittances. This support raised the purchasing power of the countries of origin, which was then used to the benefit of Europe.Footnote 19
For this reason, the third counties tried to ensure some type of preferential access to employment for their nationals.Footnote 20 The interdependence created between their economies and the Community, due to the labour export from the former to the latter, meant that it would be inconceivable for any cooperation not to cover labour-related questions.Footnote 21 However, the Community was not willing to grant preferential treatment to workers from Morocco, Algeria, and Tunisia, mostly because Greece and Turkey were negotiating similar advantages at the time, and they too had a large number of workers employed in the Member States. The Commission held that any advantage for Maghreb countries would have to be extended to Greece and Turkey.Footnote 22
However, the Commission also held that it that was ‘natural’ for any cooperation to include a guarantee of non-discrimination on working conditions and remuneration.Footnote 23 After all, these migrants had ‘contributed, and continue to contribute to Europe’s economic development’.Footnote 24 The final version of the Agreements eventually provided for equal treatment of Moroccan, Algerian, and Tunisian nationals as regards working conditions and remuneration.Footnote 25 Further, the Agreements provided that TCNs of the associated countries and their family members would enjoy equal treatment in the field of social security.Footnote 26
The changing economic and political circumstances that existed in the EU in the late 1970s called for a reconsideration of its approach to its Mediterranean partners. Specifically, the rise in unemployment in Member States, the introduction of restrictive migration policies to stem the inflow of foreign workers, in order to address both the lack of jobs and the need to integrate existing migrant labour and the completion of the South enlargement, whose candidates traditionally supplied migrant labour to the Community, limited the potential of large-scale migration from the Mediterranean region, as the relevant labour supply could not be absorbed.Footnote 27
During this period, the Community suggested an approach to its cooperation with South Mediterranean that would emphasize both the rights of TCN workers employed in the Community and their function in the development process in their country of origin. A Commission Communication on the matter mentions: ‘The Community owes much of its prosperity to migrant workers – it cannot now refuse its responsibility for their future. It should increase its efforts to give them true equality in their conditions of life and work.’Footnote 28 The Commission also mentioned the need for measures to support integration of workers and their families in the host countries.Footnote 29 Once more in this context we see that the functional role of the migrant sets the basis for the attribution of rights at the Community level in a discourse that is identical to the Commission’s approach for both Community and third-country nationals.
At the same time, clauses like the ones found in the Association Agreements with the Mediterranean were not included in the agreements regulating the cooperation of the EU with the African, Caribbean and Pacific Group of States (ACP). At the time of conclusion of the Treaty of Rome, decolonization was under way, and the founding states set up a framework that would allow them to maintain trade with their former colonies, while excluding nationals of these countries from free movement.Footnote 30 Scholars have engaged with how this exclusion privileged the interests of European states over the rights of former colonial subjects.Footnote 31 These interests were indeed privileged, with no consideration given to obligations of the Member States towards their former colonies. Archival material shows that underdevelopment of these states and the unskilled nature of their labour force were the reasons put forward for this exclusion.Footnote 32 As the Community states had no need for unskilled labour, the inclusion of the former colonial subjects in the free movement regime would only bring economic risks.
As decolonization proceeded and the Overseas Countries and Territories (OCTs) gained independence, various Conventions were put in place to establish trade cooperation with no mention of migrant’s rights.Footnote 33 It was not until late 1970s, in the Lomé II Convention, that the parties attached a Declaration on the matter. The Declaration provided that states would accord migrant workers legally employed in their territory equal treatment as regards working conditions and pay. The Declaration also provided that migrant workers and their families were entitled to enjoy equal treatment as regards social security benefits linked to employment.Footnote 34 A similar Declaration was attached to Lomé III, supplemented by another Declaration acknowledging that migrant workers and their families would enjoy in the host state the fundamental freedoms derived from general principles of international law as well as treatment free from discrimination on the basis of race, religious, cultural, and social differences.Footnote 35 Under Article 31 VCLT, Declarations are to be taken into account for the purposes of interpretation of international agreements. Given that no provision of Lomé included any obligation as regards migrant workers and the non-binding status of the declarations, they were unlikely to directly confer rights to migrant workers.Footnote 36 Equal treatment eventually made it into the Agreement in Lomé IV. Article 5, which made extensive references to human rights in the context of development and cooperation of the parties, provided under paragraph 2 that migrant workers must not be discriminated against on the basis of racial, religious, cultural, or social differences not only as regards employment but also as regards housing, education, healthcare, and other social services.Footnote 37 In parallel to this, the Joint Declaration specifying the equal treatment rights of migrant workers and their families was maintained as formulated in Lomé III.Footnote 38
Overall, these agreements were not framed with the aim of creating rights for migrant workers to enter Member States. Rather they demanded the effective protection of workers who were already resident and employed in Member States under national law. Given the significant presence of migrants from the associated states in the Community labour market, the guarantee of equal treatment was inserted to ensure their social advancement by an entitlement to a certain level of protection as regards working conditions, remuneration, and social security, as compensation for their contribution to the common market. Behind such rights is the demand that migration does not only support the growth of Community industries but also the fair treatment of the migrants, thereby ensuring social progress at the individual level and social cohesion at the Member State level. The way the demands for rights were incorporated in these Agreements showcases a balancing between economic and social objectives similar to what would be conveyed today in the concept of economic and social sustainability.
4.3 Avoiding the Presumed Negative Effects of Migration in Accession Treaties
Previous sections have examined the frameworks creating rights of different extent for migrant workers from third countries (from progressive access to employment and security of residence for Turkish nationals to social rights for migrants under Association Agreements). This section considers the in-between category of migrants whose states of origin were about to become a part of the Community growth project.
Accession to the Community did not take place in an unregulated manner. Various clauses were inserted in different Accession Treaties, and the enlargement process became differentiated over the years, to minimize the economic risks that could be caused by extending free movement of workers to all nationals of the acceding states. This differentiation took into account the circumstances of the acceding states in terms of economic development, as well as the extent to which they were already labour-exporting countries to the other Member States.
The first enlargement took place through the accession of the United Kingdom, Ireland, and Denmark in the 1970s. The relevant Accession Treaty provided the nationals of the acceding Member States with direct access to the free movement of workers framework. During the decade of negotiation that led to this enlargement, issues related to migration did not come up. From the perspective of the founding six, the UK, Denmark, and Ireland did not pose any risk in that respect, as they were not emigration countries. As a result, there was no prospect of migration flows that could cause any disruption to the Community labour market. From the perspective of the acceding states, the issue of migration appeared in a marginal way in the negotiations, and was of relevance solely in the internal politics of the UK.Footnote 39 In this regard, no transitional period was set as to the application of free movement of workers provisions. This meant that UK, Irish, and Danish nationals immediately enjoyed free movement rights as Community workers.
Despite the fact there was no migration-related risk, the Accession Treaty included a general safeguard clause under Article 135(1), which allowed both old and new Member States to apply for authorization to take protective measures in case of difficulties ‘which are serious and liable to persist in any sector of the economy or which could bring about serious deterioration in the economic situation of a given area’. Such an application was subject to the review of the Commission under Article 135(2). This general safeguard clause was similar to that of Article 226 of the Treaty of Rome. In this respect, it added nothing novel to the Community framework. The first free movement regulations examined in Section 4.1 also had clauses allowing derogations by Member States in case of national unemployment.Footnote 40 Finally, the Member States also attached a declaration to the Accession Treaty, where they acknowledged that free movement of workers might potentially create difficulties for the social situation of Member States.Footnote 41 As a result, they reserved the right to bring the matter before the Community institutions, should such difficulties arise, in order to tackle it from within Community law.
In contrast to this first enlargement, which included safeguards despite the absence of risks, the Accession Treaties signed with Greece in 1979 and Spain and Portugal in 1985 were differentiated to take into account risks related to potential migration flows. In these cases, the risks stemmed from the fact that the candidate states were traditional emigration states and were less economically developed compared to the other members of the Community club. In the first enlargement, there existed a level of homogeneity between the founding and the acceding Member States.Footnote 42 Their level of development and industrialization was similar, allowing a smooth transition in a common market focused on promoting economic growth and social progress. Greece, Spain, and Portugal, on the other hand, were considered developing countries.Footnote 43 Despite individual differences, they had recently transitioned to democracy and were all lagging behind the Community in terms of economic development.Footnote 44 Their economies were primarily based on agriculture, their rate of economic growth was not as high as that of the Community Member States, they were facing problems with unemployment, and they were already countries of origin of labour migration to the Community.Footnote 45 In this context, a Commission analysis on labour migration from Greece, Spain, and Portugal noted:
During the period of high economic growth up to 1973, these [labor migration] links created a source of interdependence between the three applicant countries and the Community, with the Community being able to make up its labor shortage from labor surpluses in the applicant countries. Since the emergence of high and continuing levels of unemployment in the Community, this interdependence has gradually changed into a relationship of unilateral dependence of the three applicant countries on the Community, particularly France and Germany.Footnote 46
The difference in economic and social conditions between the acceding countries and the Member States created the risk of high concentration of migrant workers in the more developed regions of the Community. This concern was particularly connected with anticipated migration from Spain.Footnote 47 There, the demographic prediction showed an anticipated growth in young population seeking their first job. As the Commission stated in its Opinion on the Spanish Accession, this created ‘some justification for the fear that there would be a sudden flood of immigrants if access to employment were to be made completely free upon accession’.Footnote 48 This, in connection with the higher unemployment in the Community, created the necessity for extended transitional periods in order to allow the gradual and ‘orderly’ introduction of free movement.Footnote 49 Safeguard clauses were also considered next to the progressive liberalization of free movement to address ‘erratic movements of labour’.Footnote 50
Against this backdrop, the accession of the southern Member States was differentiated by the introduction of transitional arrangements specific to free movement of workers.Footnote 51 In the case of Greece, for a fixed period of six years, Greek workers would not be able to participate in the free movement framework.Footnote 52 During that period, Member States were allowed to regulate labour migration under national law, and thereby require prior authorization for migration of Greek workers to their territories. The members of the workers’ family were equally excluded from access to the labour market, albeit for a shorter period of five years.Footnote 53 As for Greek labour migrants who were already employed in Member States at the time of accession, members of their family would be allowed to independently take up work, if they had already resided with the worker for three years in the territory of the Member State where they sought employment.Footnote 54 From 1984 onwards, this requirement would be limited to eighteen months prior residence. This Accession Treaty also included the general safeguard clause that appeared in the first accession, allowing for protective measures to be adopted by the old Member States or Greece in case of serious problems which could bring deterioration in the economic situation in any given area for a period of six years.Footnote 55
Similar transitional measures were adopted in the Portuguese and Spanish accession of 1985. The accession envisaged a fixed period of seven years, during which labour migration from the acceding countries would be regulated under national law or bilateral agreements.Footnote 56 With respect to Luxembourg, the relevant transitional period was extended to ten years.Footnote 57 A new element, added for the first time in this Accession Treaty, is that the Community could subsequently review the transitional period and adjust the measures in place for Spanish and Portuguese workers within five years following the accession.Footnote 58 As for migrant workers employed prior to accession, members of their families residing with them would be allowed to immediately take up employment. Nevertheless, the Accession Treaty provided that such a right could be limited where special bilateral agreements put in place before the Accession Treaty provided for a different treatment.Footnote 59 As for Spanish and Portuguese workers who moved after the accession, their family members would be allowed to independently take up work if they had already resided with the worker for three years in the territory of the Member State where they sought employment. From 1989 onwards, this requirement would be limited to eighteen months prior residence.Footnote 60 This accession also included the same general safeguard clause, which allowed for protective measures to be adopted for a period of seven years and which was extended to ten years for Luxembourg due to the difficulties related specifically to its employment market.Footnote 61
The Accession Treaties did not make any differentiation as to how migrant workers who had been employed in Member States prior to accession should be treated during the transitional period. This gap was filled by the Court. In Peskeloglou and Lopes da Veiga, the Court dealt with restrictive policies against migrant workers and their family members who were nationals of Greece and Portugal.Footnote 62 The migrant workers were already employed in Germany in the case of Peskeloglou, and in the Netherlands in the case of Lopes da Veiga, prior to the accession of their states of origin to the Community. In both the cases, the Court confirmed that the aim of the derogation from free movement during the transitional period prescribed in the Accession Treaties was to prevent the disruption of the labour markets caused by the potential massive influx of migrants from the acceding Member States.Footnote 63 In this context, the Court held that derogations from free movement should be interpreted strictly, and should not be applied to the detriment of the migrant workers already residing in the Community Member States.Footnote 64 In contrast to this, in Tsiotras v Landeshauptstadt Stuttgart, the Court held that an unemployed national from an acceding Member State for whom it has become objectively impossible to find employment could not enjoy any rights under Community law during the transitional period. An ex-worker national of an acceding Member State who could no longer pursue work represented a category of migration that could pose adverse effects to economic growth.Footnote 65 Thus, only migrants actively engaged in the objective of growth and who could not pose a risk to the disruption of the labour market could enjoy Community rights during the transitional periods.
In light of this, and under a combined reading of the Accession Treaties and Regulation 1612/68 applicable to free movement of workers at the time of the Greek, Spanish, and Portuguese accession, we can infer the following. All labour migrants from the acceding states who were employed in Community Member States before or after accession would immediately benefit from the principle of equal treatment. Specifically, Article 48 EEC was subject to the transitional provisions laid down in the Accession Treaties and analysed in this section. At the same time, Regulation 1612/68, which implemented and specified how this freedom was to be enjoyed, was subject to transitional arrangements with respect to specific articles mentioned in the Accession Treaties. Article 7 of the Regulation, which constitutes a specific expression of the non-discrimination principle, was not mentioned as a provision whose application could be derogated during the transitional period. This meant that labour migrants of the acceding states who were employed in Community Member States during the transitional period fully enjoyed equal treatment.
In essence, the transitional arrangements set in place aimed at restricting free movement rights only for soon-to-be Community nationals who were suspected of seeking work in Community Member States. The fear of economic repercussions from a potential mass exodus to the north, which was a core rationale of the transitional arrangements, was unsubstantiated for one group of individuals from the acceding Member States. These were migrants who had established themselves in the Community prior to the accession and who were actively contributing to the development of the Community by participating in national labour markets as workers. Such migrants had acquired rights which should not be restricted during the transitional period.
Overall, in the regulation of accession, but also in the rest of the legal instruments which were negotiated and adopted in this period, the following characteristics can be identified. As the period was primarily characterized by demand for migrant labour, the Community agenda was quite liberal in the sense of demanding the extensive attribution of rights to migrant workers as a compensation for their participation in the project of growth. This was without consideration of nationality. Equal treatment in working conditions and social security was a bare minimum to be enjoyed by all migrant workers implicated in the Community project. In parallel, instruments which could lead to the creation of entry rights for migrants incorporated safeguard clauses to ensure that Member States can close the valve and limit potential adverse effects in case of change of economic conditions. Such safeguard clauses could not be adopted unilaterally and were instead submitted for review to the Community institutions. These were the ways in which social and economic objectives shaped the law-making during this period with due regard for parallel pursuit of growth and progress in a way which today would be called the pursuit of social and economic sustainability.
4.4 The Incorporation of Safeguards and the Attribution of Rights
Part I has engaged in a historical study of different areas of Community law that concerned the rights of migrant workers from the Treaty of Paris to the Single European Act and it highlighted the way economic and social considerations shaped the attribution of rights to migrants. The analysis has shown how economic and social objectives have affected the attribution of rights to migrants already from the establishment of Community law. It also showed that labour demand and positive economic circumstances were behind an aligned approach to both Community and TCN migrants. During the early years of the Community project and before the oil crisis, it would not have been an understatement to say that the Commission had the objective of shaping a sustainable migration. Such a plan was envisaged as based on social rights for all migrants contributing to the post-war project of growth.
Overall, the analysis showed that until the 1970s, there was nothing distinguishing Community workers and TCN workers, as both groups provided the same contribution to the Community project, and the different action plans put forward were meant to cover both.Footnote 66 The position of the migrant in the Community legal order was based on their market participation. By being actively engaged in the Community project of growth, Community migrants ‘earned’ social rights in return. Similarly, the Community institutions were determined to extend these rights to all other migrants engaged in this project. At the same time, the archival material revealed a link between the economic benefits of migration for the Community market and the social advancement of migrants in their capacity as workers. Social progress came in the form of rights as the result of the economic function of migrants. As long as the economy continued to develop, all migrants within the territory should draw benefits from this progress. In circumstances of unhindered economic growth, the paths of regulating migration were aligned for both Community and TCN migrants.
In the early 1980s, and with the effects of the oil crisis experienced in the Member States, the category of ‘workers’ slowly became differentiated based on nationality. Member States hesitated to extend rights to all, for fear that they could not guarantee social progress for their own citizens. And while extending rights to Community migrants is supposed by a form of solidarity between the different Member States that are all implicated in the same development project, this type of solidarity cannot extend to migrants whose state of origin is not implicated in the project at all. In that context, we do see the attribution of rights to migrants in trade and cooperation agreements, but once the crisis hit, Member States hesitated to maintain such treatment. Indeed, clauses were embedded in all frameworks and controlled by Community institutions to ensure that, in all cases, economy did not collapse under the weight of the rights granted.
In general, during this period, considerations related to economic imperatives determined the limitation, the temporal attribution, and the extension of rights for migrant workers. Depending on these economic considerations, social progress came as a by-product in the form of personal rights for the migrants and derivative rights for their family. The same considerations will continue to appear throughout the regulation of migration in Parts II and III. What changes is that during the period examined in Part II, political ambitions enter the picture in relation to the rights of Community migrants, whereas thicker perceptions of social progress in the form of rights are also found in the legal system. The interdependence and parallel pursuit of economic and social objectives via the regulation of migration framed both free movement and Association Agreements as the first manifestations of a Community sustainable migration. Similar considerations also lay behind the pursuit of coordinating national migration policies and in the transitional clauses inserted in the Accession Treaties concluded in this period. Part II will investigate how such considerations evolved after the adoption of the Single European Act and until the failed Constitutional Treaty.