INTEGRATION POLICY IN THE EUROPEAN UNION THE QUESTION OF COMPETENCE John Handoll

INTRODUCTION To discuss how question of competence – as between EU and its Member States - has been addressed in area of third-country national integration policy. “Constitutional” rules in EU Treaties (TEU, TFEU and CFREU). Restatement with entry into force of Lisbon Treaty (1 December 2009). EU has exercised competence in a number of areas relevant to integration of third- country nationals, including immigration policy relating to “conditions of entry and residence” (Article 63(3)(a) TEC) and now to “fair treatment” and definition of rights of legally-resident TCNs (Article 79(1) and (2) TFEU) Before Lisbon Treaty, recognised (as now) that primary responsibility for integration policy lay with Member States rather than Union as whole. Recognised that EU could and should support and incentivise national integration policies in a number of different ways. However, there was no specific Treaty basis for doing so. Now Article 79(4) TFEU allows EU measures to incentivise and support Member State action promoting the integration of third-country nationals legally residing in territories, excluding any harmonisation of laws and regulations of Member States. What does this mean?

OUTLINE General Framework for Competence under the EU Treaties EU Competence in the Immigration/Integration Policy Field – Immigration Measures – Measures Supporting/Incentivising Member State Action Relationship between Article 79(1) & (2) (b) and Article 79(4) TFEU “European cooperation in the field of integration”

COMPETENCE: THE EU TREATIES TEU (Articles 4 and 5): – Principle of conferral. Competences not conferred on Union remain with Member States TFEU (Article 2). Union competence may be: – Exclusive – Shared (see Protocol No. 25) – “Supportive” of Member State action, without superseding Member State competence. Charter of Fundamental Rights of the EU (Articles 51 and 52)

EU COMPETENCE: IMMIGRATION/INTEGRATION POLICY TFEU (Article 4(2)(j)): – Shared competence in area of FSJ (including immigration policy). TFEU (Article 79(1) and (2)(b)): – Immigration policy includes “fair treatment” of legally- resident TCNs and EU has power to adopt measures in relation to definition of their rights. TFEU (Article 79(4): – Measures to provide incentives and support for action of Member States with a view to promoting integration of legally-resident TCNs, excluding any harmonisation of Member State laws and regulations.

EU COMPETENCE IN INTEGRATION: DRAWING THE LINE Article 2(6) TFEU: Scope of and arrangements for exercising EU competence determined by EU Treaties provisions relating to each area. Exercise by EU of shared powers in relation to immigration (and other areas) may involve “integration” elements. See, e.g., LTR and Family Reunification Directives. Wording of Directives reflects Member State competence concerns (see Protocol No. 25 on the exercise of shared competence and references to national competence in preambles). Article 63(3)(a) TEC also provided basis for specific integration measure: 2007 EIF Decision. Article 79(4) TFEU has taken over a part of what was previously covered by Article 63(3)(a) TEC (now Article 79(1) & (2). EIF Decision would now be based on Article 79(4). Introduction of Article 79(4) enables the start of a new stage of European cooperation in the field of integration (April 2010 Zaragoza Declaration) Designed to remove/reduce risk that Article 79(1) & (2) might be used as basis for EU measures primarily directed at integration. Drawing the line is ultimately for the Court of Justice. Much of the frontier-delimitation work has already been done.

EUROPEAN COOPERATION IN THE FIELD OF INTEGRATION (1) October 1999 Tampere Summit – Development of common approach to ensure integration into our societies of lawfully-resident third- country nationals. – The EU must ensure fair treatment of legally-resident third-country nationals. A more vigorous integration policy should aim at granting them rights and obligations comparable to those of EU citizens. Set foundations for current policies, applying post-Amsterdam Treaty provisions. Did not resolve competence issues. Consensus early on that integration was primarily role of Member States, that a measure of “coordination” of national measures was needed and that national policies should be developed within a coherent EU framework. Commission’s initial approach was ambitious – OMC approach (with suggestions of eventual extension of Community powers) and idea of “civic citizenship” – and not fully taken up by the Member States, which preferred a more gradualist approach, respectful of national differences and competences. European Council/Council start to set agenda, with Commission rowing back on ambition Common Basic Principles established by the Council of the EU and the Representatives of the Governments of the Member States. Note the “driver” provided by successive ministerial conferences on integration: Groningen, Potsdam, Vichy, Zaragoza.

EUROPEAN COOPERATION IN THE FIELD OF INTEGRATION (2) 2005 Common Agenda provides “guidance” for EU and Member States integration policies, clearly distinguishing between the two. Need for EU and Member States to work together more effectively stressed by the European Parliament in its 2006 “Strategies and Means” Resolution. 2007: Council of EU and Representatives of Governments: “unity in diversity” European Pact invited Member States to establish ambitious policies for promotion of the harmonious integration of migrants, with the help of Community support measures Stockholm Programme: European cooperation contributes to more effective integration policies in Member States by providing incentives and support for their action Zaragoza Declaration: recognises importance of Article 79(4) TFEU in allowing further progress. Practical implications still not clear. Key point is that Member States retain considerable freedom vis-à-vis the EU in defining and implementing integration policy. If national policies fail to respect basic values of EU (Article 2 of the TEU), possibility of invoking Article 7 TEU (mechanism for addressing risk of breach / serious & persistent breach of basic values, even in areas of retained competence).