DECISION-MAKING PROCEDURES WITH GENERAL SCOPE The provisions referred to above are certainly insufficient as a legal basis for the

adoption of, at least, most measures related to third country nationals. Either they are too vague to form a basis for substantive legal instruments (Articles 117 and 118), or their material scope is simply limited to specific fields (Article 101 and 123, on distortions of competition and the European Social Fund, respectively). In the rest of the areas related to third country nationals, the only ways for the Community to adopt measures seems to be to have recourse to Articles 100 and 235 of the Treaty, or to Article 238, on association agreements with third countries.

1 - Article 100 of the EC Treaty This Article states that:

"The Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament and the Economic and Social Committee, issue directives for the approximation of such laws, regulations or administrative provisions of the Member States as directly affect the establishment or functioning of the common market."98 99 100

It seems reasonable to argue that legislative differences on most of the issues concerning immigration and immigrants from third countries directly affect the common market. This applies to the abolition of internal border controls, as well as to other issues.101

Article 100 happens to be the legal basis of two of the three Commission draft Directives for the abolition of internal border controls on persons, presented on July 98 These aspects were the reference to the cultural integration of third country workers (and their families) and the objective of consultation for ensuring that the agreements and measures of the Member States "be in conformity with, and do not compromise the results of Community policies and actions".

99 With only one small difference. While, in the first decision, one of the objectives of the consultation was "to facilitate the adoption of a common position by the Member States, particularly as regards international instruments relating to migration", the new decision restates the same objective but it is referred to as "the adoption of a common policy" regarding the same topic.

100 This is the present version of Article 100. In the previous version, before being amended by the Treaty on European Union, the European Parliament and the Economic and Social Committee only had to be consulted "in the case of directives whose implementation would, in one or more Member States, involve the amendment of legislation".

101 Timmermans sustains that "there can scarcely be any doubt that, the abolition of internal border controls of persons* which is part of the completion of the internal market, depends in part on the creation of a common regime on a number of issues related to immigration and national rules and policies relating to aliens; and that to that extent the Community is competent to enact such a regime by way of harmonisation directives under Article 100 EEC." See Timmermans, C.W.A. "Free Movement of Persons and the Divisions of Powers Between the Community and its Member States - Why do it the intergovernmental way?", in Free Movement of Persons in Europe..., op.cit., pp.352-368, at 361.

1995.102 Under certain conditions, one of these draft Directives grants to third country nationals (who arc lawfully in a Member State) the right to travel in the territories of other Member States.103 In the Preamble of this draft Directive it is precisely mentioned that

"the approximation of Member States' laws on this question affects the establishment and functioning of the internal market".104

However, Article 100 may also be used on other issues, which 'directly affect the establishment or functioning of the common market’ in other aspects, such as the Community labour market. It seems clear, for instance, that the free movement of workers that are nationals of a Member State can be challenged if certain Member States rely on labour imported from third countries to overcome their lack of manpower, instead of making recourse to unemployed nationals of other Member States. The approximation of national immigration laws would then be justified with the aim of assuring the effective functioning of the common labour market.

However, the adoption of positive measures in favour of third country nationals may also be justified in relation to the "establishment or functioning of the common market". The labour and social security laws of a certain Member State may give fewer rights to third country nationals than to the nationals of a EC Member State. This could potentially give the enterprises of that State a competitive advantage over those of other Member States that choose to give the same rights to all workers, regardless of their nationality. To the extent that the difference in protection is relevant and the workers concerned make up an important number, such a situation clearly affects the common market. It would, therefore, justify the adoption of measures by the Community under Article 100.

2 - Article 100A of the EC Treaty

The Single European Act introduced Article 100A in the EEC Treaty, with the aim of facilitating the adoption of Community legislation to establish the internal market. It read as follows:

102 Draft Council Directive on the elimination of controls on persons crossing internal frontiers, COM (95) 347, final; Draft Council Directive on the right of third-country nationals to travel in the Community, COM (95) 346, final; both from 12/7/1995. See chapter 4 for an analysis of these Directives. The third Directive for the elimination of controls on persons crossing internal frontiers, was proposed in COM (95) 348 and is based in Articles 49, 54(2) and 63(2) of the EC Treaty. These are the Treaty provisions which based the adoption of the Directives already in force which are to be amended by the proposed draft Directive.

103 COM (95) 346, final.

104 Idem, third recital. Note that the present version of Article 100 (as amended by the Treaty on European Union) refers to the 'common market' onty, while the Commission refers to the ’internal market'. However, this is not really a problem, since the internal market is not much more than a practical realisation of a true common market. See further the next chapter, on the relation between the two concepts. Note also that Article 100 of the EC Treaty was also the legal basis of a Commission draft Directive on the harmonisation of laws of the Member States to combat illegal migration and illegal employment - see OJ C 277/2 of 1976 (for the first draft) and OJ C 97/9 of 1978 (for the final draft). The Directive would imply the charge of heavy fines on employers knowingly employing an illegal immigrant, and more stringent controls on the arrival of new migrants (e.g., by inland checks). The Council never approved it.

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"By a way of derogation from Article 100, and save where otherwise provided for in this Treaty, the following provisions shall apply for the achievement of the objectives set out in Article 7A. The Council shall, acting by a qualified majority (...), adopt the measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market."103

However, it was established that this general rule

"shall not apply to fiscal provisions, to those relating to the free movement of persons nor to those relating to the rights and interests of employed persons".105 106

This means that the unanimity vote in the Council is still required to adopt EC legislation on the free movement of persons.107 Likewise, the Single European Act did not change the decision-making procedure under which Article 235 can be used: it still requires an unanimous vote in the Council. This contrasts with the fact that the Single European Act amended several provisions of the EEC Treaty on the Community decision­

making procedure. In most fields, after the European Single Act, the adoption of decisions by the Council no longer requires unanimity, but a qualified majority. Such a change did not occur in Article 100 and 235.

In this way, the drafters of the Single European Act, while establishing a very ambitious project in general terms, and facilitating the adoption of EC measures in other fields, left unchanged the rules on the decision making procedure related to third country nationals.108 In light of the impossibility of a quick judicial enforcement of the obligation to establish an internal market, this maintenance of the old rules on decision-making procedure represents a real political trap. The Member States prepared the way for leaving basically untouched their powers to prevent the adoption of EC measures on the free movement of persons, including measures on third country nationals. This intention is to some extent also expressed by two declarations annexed to the Single European Act. A

"General Declaration on Articles 13 to 19 of the Single European Act", made by the Conference of the Representatives of the Governments of the Member States, stated that:

"Nothing in [its] provisions shall affect the right of Member States to take such measures as they consider necessary for the purpose of controlling immigration from third countries, and to combat terrorism, crime, the traffic in drugs and illicit trading in works of art and antiques".

105 This ¡s the original version of Article 100A(1), as introduced by the Single European Act. The Treaty on European Union amended it only in the procedural aspects, applying the new Article 189B to it.

106 Article 100A (2).

107 It may be interesting to note that, as will be recalled in the next chapter, some times it is sustained that the free movement of persons referred to in Article 7A is limited to nationals of Member States only.

This is argued, for example, by the United Kingdom government. If such an assertion was valid, the reference in Article I00A(2) to free movement of persons should be interpreted in a similar manner - and considered to refer only to nationals of a Member State. The result would be that EC measures on third country nationals could be adopted by qualified majority, i.e. under the general rule of Article 100A(1).

This result would probably not please the UK government.

108 Note, however, that Article 59(2), on the possibility of extension to third country nationals of rules related with the free provision of services, was also changed. Before the E.S.A. a unanimous vote was required to adopt measures and after the E.S.A., a qualified majority is sufficient. Nevertheless, this provision was not yet used to enact measures within the Community.

A "political declaration” made on the free movement of persons by the representatives of the governments of the Member States, stated that:

"In order to promote the free movement of persons, the Member States shall cooperate, without prejudice to the powers of the Community, in particular as regards the entry, movement and residence of nationals of third countries. They shall also cooperate in the combating of terrorism, crime, the traffic in drugs and illicit trading in works of art and antiques."

Nevertheless, it may be noted that Article 100A was used to adopt EC legislation on issues related to public security, traditionally seen as being an exclusive domain of national sovereignty. I refer here to Directives on money laundering,109 insider dealing,110 and weapons.111 They were all based on Article 100A,112 which requires a connection of EC measures with the objectives of Article 7A. Thus, it may be argued that the public security aspects of issues concerning third country nationals are not an obstacle for the adoption of EC measures, inasmuch as these are justified under the Community objective of establishing an internal market.113

3 - Article 235 of the EC Treaty114

Community measures on third country nationals can also be adopted under Article 235, which provides that:

"If action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community and this Treaty has not provided the necessary powers, the Council shall, acting

109 Directive 9I/308/EEC on the prevention of the use of the financial system for the purpose of money laundering, OJ L 166/77 of 1991.

110 Directive 89/592/EEC of 13 November 1989 coordinating regulations on insider dealing, OJ L 334/30 of 18/11/1989.

111 Council Directive 91/477/EEC of 18 June 1991 on the control of the acquisition and possession of weapons, OJ L 256/51-58 of 13/09/91.

112 All were also based on the EC Treaty, in general terms. The Directive on money laundering was, in addition, based Article 57(2) thereof.

113 See also paragraph 25 of cases 281, 283-5 & 287/85, Germany et al. v. Commission. There the Court of Justice declared that the fact that Member States retain their competence to take measures concerning workers who are nationals of non-member countries "which are based on considerations of public policy, public security or public health and which are, as such, their own responsibility", does not mean, that "the whole field of migration policy in relation to non-member countries falls necessarily within the scope of public security".

114 On Article 235 see Kapteyn & Verloren Van Themaat. op.cit. at pg. 114; Mougin, C. Flaesch's commentary to Article 235 in Traité instituant la CEE - commentaire article par article, Kovar, Robert &

Constantinesco.Vlad et al. (eds.), Paris, Economica, 1992, pp. 1509-1539, at pp. 1512-13; Usher, John A.

"The Gradual Widening of EC Policy, in Particular on the Basis of Articles 100 and 235 EEC Treaty" in Structures and Dimensions of European Community Policy, by Schwarze, J. & Schermers, H. G. (eds.), Baden-Baden, Nomos, 1988, at pp.25-36; Weatherill.S. & Beaumont,P., EC LAW - The Essential Guide to the Legal Workings of the European Community, London, Penguin, 1993, at pp. 119-122. For an analysis of the use of Article 235 in recent times see also Emiliou, Nicholas "Opening Pandora's Box: the Legal Basis of Community Measures before the Court of Justice", ELR, Vol. 19, October 1994, No. 5, pp.488-506.

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unanimously on a proposal from the Commission and after consulting the European Parliament, take the appropriate measures."115

a) The Relationship between Article 235 and Community Objectives (i) general

This Article (together with Article 100116 117) restricts the principle of Community limited powers, by granting the Community what are usually called "residual powers".1,7 Like Article 100, Article 235 gives the Community a general competence, subject to some requirements. Apparently, this Article is less demanding than is Article 100, as the latter requires that the instruments to be adopted deal with issues which "directly affect the establishment or functioning of the common market". Instead, Article 235 only requires the existence of a need to attain "one of the objectives of the Community". Although that need must be verified "in the course of the operation of the common market", the link of the measure with a strict conception of the common market seems to be less stringent here. Thus we may examine the possibility of using Article 235 concentrating on analysing it in combination with the Preamble of the Treaty of Rome and its Articles 2 and 3.118

Common measures in relation to third country nationals could be justified on the basis of a need for ensuring "the abolition, as between Member States, of obstacles to freedom of movement for persons". That could be the justification for a common immigration policy or the extension to third country nationals of the right of freedom of movement for workers. The promotion of "an accelerated raising of the standard of living"

and even of "an increase in stability" could justify positive action in relation to third country nationals, namely action against racism and against discrimination or generally on the promotion of their social integration. Moreover, almost any common measure on third country nationals could be explained by the broad Community objective of promoting

"closer relations between States belonging to it."

(ii) The Issue in Other Areas

It is important to emphasise that Article 235 has been used to justify action in areas in which the competence of the Community was not explicitly provided for in the EC Treaty. In those fields, the political will of the governments of the Member States was sufficient to overcome legal doubts on the appropriateness of the adoption of EC measures.119

115 See also the equivalent Articles in the ECSC Treaty (Article 95) and in the EAEC Treaty (Article 203).

116 As well as with the doctrine of implied powers, namely in the Community external relations.

117 See Snyder, F. "Competences", in Butterworths Expert Guide to the European Union, op.cit.

118 See, however, that it is common to consider that the Community objectives referred to in Article 235 are not only those that are mentioned in general terms in Article 2 and 3 and the Preamble of the Treaty, but also the objectives mentioned more specifically in other provisions of the Treaty. See Mougin, op.cit.

at pp. 1512-13 and Kapteyn & Verloren Van Themaat, op.cit., at p.l 14.

119 The extent to which political will was here able to overcome the legal objections for such action is a good example of how legal arguments are in general of secondary importance. However, it should also be noted how the lack of political commitment here prevented the adoption of more ambitious measures.

Again using legal arguments.

One example is the area of equal treatment for men and women. It may be recalled here the Council Directive on the implementation of the principle of equal treatment for men and women which concerned access to employment, vocational training, promotion and working conditions.120 In this area the Treaty did not give explicit competence to the Community institutions. However, as the Preamble of the said Directive states, in its third recital,

"equal treatment for male and female workers constitutes one of the objectives of the Community, in so far as the harmonisation of living and working conditions while maintaining their improvement are inter alia to be furthered".

Therefore the legal basis of the Directive was declared as being: "the Treaty establishing the European Economic Community, and in particular article 235 thereof. Although approved later than some would have liked,121 there was enough consensus among Member States for the adoption of this Directive.122 The main motivation appears to have been that the Community would lose political legitimacy if it were not to act in this field.

Another example can be found in the area of environmental protection. This is one of the areas the original Treaty did not explicitly mention. Some EC action was nevertheless taken and EC competence concerning the environment was later formally incorporated into the EEC Treaty by the Single European Act. In itself, this development shows how the political background can determine the interpretation and the use of existing competence. To substantiate this idea we may look at an example of Community action taken before the European Single Act: the Council Directive of 1979 on the conservation of wild birds.123 The necessary specific powers to act in this field had not been provided for in the Treaty. Therefore the Directive declared that its legal basis was article 235,

"Whereas the conservation of the species of wild birds naturally occurring in the European territory of the Member States is necessary to attain, within the operation of the common market, the Community's objectives regarding the improvement of living conditions, a harmonious development of economic activities throughout the Community and a continuous and balanced expansion...".124

120 Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal

120 Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal