8 Colum. J. Eur. L. 181 (2002)
Theodora Kostakopoulou. Senior Lecturer in European Law and European Integration, Manchester School of Law, University of Manchester.
One of the most important challenges facing democratic polities concerns the relationship between the constitutional commitment to civic equality, on the one hand, and the public recognition of “difference,” on the other. Democratic theory cannot ignore the “politics of recognition” of cultural, national, ethnic, religious, racial, gender, sexual and other identities, even though the latter appears to call into question the traditional conception of democratic society as a bounded polity based on the ideal of universal and “monochrome” citizenship. The non-citizen residents’ demands for political inclusion and recognition have been viewed as a problem and/or a threat by the EU Member States’ whose very constitution relies on a “trinity of unity,” that is, a unitary territory, a unitary force and a unitary people. Yet, despite concerns about the long term impact of the politics of recognition on the sense of common belonging and unity, it is generally acknowledged that democracy cannot be enhanced unless political and social institutions and structures become more attentive to, and reflective of, the claims made by minority constituencies for socio-political inclusion and cultural recognition.
In the European Union, barriers to free movement and residence are increasingly removed for Union citizens. Long-term resident third country nationals, however, have been relegated to the periphery of the emerging European civil society. The only EU citizenship rights they enjoy on the same footing as Community nationals are the right to petition the European Parliament and to complain to the European Ombudsman. In post-Amsterdam Europe, possession of Member State nationality remains a qualifying criterion for eligibility to the benefits afforded by Community rules. In addition, only a small percentage of third country nationals can claim derived rights as family members of Union citizens, as employees of Community based providers of services providing services in another Member State, or as beneficiaries of the differential and partial rights entailed by the Association and Co- operation agreements concluded by the European Community and third countries. Kees Groenendijk is, therefore, correct to argue that Community law has unintentionally legitimized the unequal treatment of ethnic minorities. Such treatment is difficult to justify considering that long-term, third country nationals are an integral part of the European community, de facto members of and contributors to the flourishing European societies.
The exclusionary scope of Union citizenship has been criticized and the merits of replacing the “subjective standard of nationality by the objective standard of residence or domicile” have been defended by both academics and NGOs. Although national executives oppose the extension of Union citizenship to long-term resident, third country nationals, the latter are no longer mere objects of policy and vulnerable dependants. A more liberal approach is gradually replacing the Council’s favored intergovernmental restraint mode of integrating such persons, owing to a combination of factors, such as European Parliament interventions, intense lobbying by pro-migrant NGOs, academic reaction against the deficiencies of Justice and Home Affairs Co-operation I (the so-called Third Pillar of the Treaty on European Union) and the spill-over effect of the logic of market integration.
The partial Communitarization of the Third Pillar, one of the most important innovations of the Amsterdam Treaty,9 has unearthed a new dynamic in this area. It marked the beginning of a third phase in the development of a European immigration policy and constitutes a break in the intergovernmental methodology to date. The Schengen acquis has been incorporated into the Union, and most of the provisions of the acquis concerning the free movement of persons have been allocated a legal base in Title IV of the Treaty Establishing the European Community (“TEC”). Empowered both constitutionally and institutionally,” the Commission has taken advantage of the structural shift from the intergovernmental pillar and proposed instruments which are likely to improve the position of long-term resident third country nationals. Although it may be premature to talk about a genuine paradigm shift in the Community’s approach to migration, it is certainly the case that addressing the inequitable position of long-term resident, third country nationals has become a priority in the Community’s policy agenda. The special meeting of the European Council at Tampere (October 1999) acknowledged that the European Union must ensure the fair treatment of third country nationals who legally reside on its territory and that “a more vigorous integration policy” aimed at “granting them rights and obligations comparable to those of Union citizens” is needed.
But what does a “vigorous integration policy” entail? The Tampere discourse on “fair treatment of third country nationals” stands in sharp contrast to the intergovernmental restraint mode of the Justice and Home Affairs Council’s non-binding 1996 Resolution on the integration of long-term resident third country nationals. Similarly, one observes a discursive shift in the Commission’s interpretation of the meaning and terms of integration of long-term resident third country nationals in pre-Tampere and post-Tampere initiatives. The latter suggest the possibility of a harmonized national denizenship status for long-term resident third country nationals coupled with the grant of European denizenship.
The purpose of this paper is to critically examine these developments in light of theoretical models of minority incorporation. I argue that existing theoretical models of minority integration offer valuable insights to the problems generated by the exclusion of third country nationals in the European Union by showing how various national-statist arrangements have responded to “difference” in accordance with differing definitions of political membership and specific historical experiences. However, as these models have emerged and developed within national and statist institutional settings, they are not perfectly equipped to capture the complex character of the European arena. European developments prompt a rethinking of the connection between the state, the nation and pluralism in its various forms, and invite us to consider the possibility of transcending these connections. Accordingly, the vocabulary of integration may not be apposite to issues of European membership issues and its replacement with that of democratic equality and inclusion should be considered.
This argument by no means seeks to underestimate the significance of the Commission’s recent initiatives. After more than four decades of European integration long-term resident country nationals are portrayed as rightful participants with equal rights and opportunities in the workplace and society at the national level and are granted free movement rights. This is an important development and one can only hope that the Commission’s post-Amsterdam initiatives become legally binding instruments. Yet these initiatives do not fully embrace a participatory model of incorporation that gives third country nationals a stake in the European polity. “Civic citizenship” is an oxymoron and cannot really be a substitute for political membership. In this respect, promoting democratic inclusiveness in the European Union and recognizing the long-term resident third country nationals’ claims to inclusion and equality compel keeping discussions about the evolution of Union citizenship on the agenda.