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Article 79 [Common Immigration Policy]

(ex-Article 63, Points 3 and 4, TEC)

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Treaty on the Functioning of the European Union – A Commentary

Part of the book series: Springer Commentaries on International and European Law ((SCIEL))

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Abstract

Article 79 TFEU provides a legal basis upon which the Union should establish a common policy on immigration, thus harmonising diverse regulatory standards of MSs on legal and irregular migration flows onto the Union territory. The objectives that should thus be pursued are specified in Article 79.1 TFEU: the efficient management of migration flows, fair treatment of third-country nationals residing legally in MSs, and prevention of, and enhanced measures to combat, illegal immigration and trafficking in human beings. In pursuing those objectives, the Union immigration policy—as part of the area of freedom, security, and justice—is formally governed by the principles of respect for divergent national identities, protection of fundamental rights guaranteed under the Charter, solidarity between MSs (Article 80 TFEU), and fairness towards third-country nationals (Article 67 TFEU).

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Notes

  1. 1.

    Toner (2014), p. 20.

  2. 2.

    Groenendijk (2014), p. 314.

  3. 3.

    Baldaccini and Toner (2007), p. 5.

  4. 4.

    Wiesbrock (2010), p. 719.

  5. 5.

    Wiesbrock (2010), p. 719.

  6. 6.

    Groenendijk (2014), p. 325.

  7. 7.

    Peers (2014), p. 778.

  8. 8.

    Convention Implementing the Schengen Agreement of 19 June 1990, O.J. L 239/19 (2000).

  9. 9.

    Title VI of the original TEU, Article K-K9.

  10. 10.

    Very few, however, were adopted for purely migration matters. See, for example, Joint Action on airport transit visas, O.J. L 63/8 (1996).

  11. 11.

    Convention on consented extradition, O.J. C 78/1 (1995), and on disputed extradition, O.J. C 313/11 (1996).

  12. 12.

    Peers (2014), p. 778.

  13. 13.

    Guild (1999), p. 84.

  14. 14.

    Hailbronner (2010), p. 2.

  15. 15.

    Guild (1999), p. 85.

  16. 16.

    Toner (2014), p. 15.

  17. 17.

    Some academics note that views of the Parliament were often muted, and that its ‘consultation’ rights were easily sidelined and ignored by the Council. Baldaccini and Toner (2007), p. 5.

  18. 18.

    Baldaccini and Toner (2007), p. 2.

  19. 19.

    O.J. L 396/45 (2004).

  20. 20.

    See, for example, Policy Plan on Legal Migration, COM (2005) 669 final; European Pact on Immigration and Asylum, Council doc. No. 13440/08; Commission Communication on a common immigration policy for Europe, COM(2008) 359 final.

  21. 21.

    Tampere European Council Presidency Conclusions, SN 200/99 (1999).

  22. 22.

    Baldaccini and Toner (2007), p. 3. Since Tampere, Union immigration law has been developed in five-year policy plans. See European Council, The Hague Programme, O.J. C 53/1 (2005), and Council of the European Union, The Stockholm Programme, O.J. C 115 (2010). It is here worthy to note that these subsequent programmes lacked the ambitions framed in Tampere. The Hague Programme was referred to as much more restrictive and focused on security concerns, while its Stockholm counterpart was criticised as ambiguous and much less clear, leaving a lot of questions unanswered. In other words, both practice and future policy choices reveal a worrysome tendency not to follow the standpoints framed in Tampere. See Wiesbrock (2010), pp. 3 and 730.

  23. 23.

    Article 68.1 TEC.

  24. 24.

    Peers (2007), p. 102. The Court of Justice received only three requests for a preliminary reference in this period: Case C-357/09 PPU, Kadzoev (ECJ 30 November 2009); Case C-578/08, Chakroun (ECJ 4 March 2010); and Case C-247/09, Xhymshiti (ECJ 18 November 2010).

  25. 25.

    Baldaccini and Toner (2007), p. 7.

  26. 26.

    Article 68.3 TEC.

  27. 27.

    Article 67.2 TEC.

  28. 28.

    Toner (2014), p. 17.

  29. 29.

    Case C-283/09, Werynski (ECJ 17 February 2011).

  30. 30.

    For example, the Long-Term Residence Directive allowed for parallel national regulations. Rules on pupils, volunteers and unpaid training were applicable in the MS only optionally. Subsequently, more stringency in application of EU immigration rules was announced. The Returns Directive allowed more favourable standards on deportation, but only if they were compatible with the Directive and its purpose.

  31. 31.

    Toner (2014), p. 14.

  32. 32.

    As regards legal migration, both countries have opted into applying measures on uniform residence permit, social security coordination (save for the 2007 amendment in case of the UK), exchange of information on migration policy, Integration Fund and European Migration Network. Ireland has additionally opted into application of measures on researchers. As regards irregular migration, both countries have opted into all measures on irregular migration except those on trafficking victims, financing expulsion, transit for expulsion, returns, sanctions for employers of irregular migrants, exchange of information and readmission treaties.

  33. 33.

    Denmark decided to apply in its legal system the rules on residence permits, exchange of information, financing of expulsion decisions, mutual recognition of expulsion measures and transit for expulsion.

  34. 34.

    For the most comprehensive analysis of EU legal migration law, see Wiesbrock (2010).

  35. 35.

    Even before this provision was expressly introduced in the Treaty, the Union was already active in promoting integration of third-country nationals by establishing the European Integration Fund. See Decision establishing a European Integration Fund, O.J. L168/18 (2007), later replaced by Parliament/Council Regulation (EU) No 516/2014 establishing the Asylum, Migration and Integration Fund, O.J. L 150/168 (2014).

  36. 36.

    Conclusions of the European Council Presidency - Copenhagen, SN 2808/1/93.

  37. 37.

    O.J. C 274/7 (1994), O.J. C 382/1 (1997), O.J. C 274/10 (1996) and O.J. C 80/2 (1996). In 1997, the Commission proposed a convention in attempt to transfer these rules into a legally binding instrument, but the Council refused.

  38. 38.

    O.J. L 7/1 (1997).

  39. 39.

    Tampere European Council Presidency Conclusions, SN 200/99 (1999), paras 18, 20 and 21.

  40. 40.

    Peers (2011), p. 386.

  41. 41.

    Regulation 859/2003, O.J. L 124/1 (2003). See also Joint Cases C-95/99 to 98/99, Khalil and C-180/99, Addou (ECJ 11 October 2001), which led to the extension of EC legislation on social security rules on third-country nationals. After the Lisbon Treaty, this regulation was once again amended as to include persons under asylum and subsidiary protection in Regulation 1231/2010, O.J. L 344/1 (2010).

  42. 42.

    See also Case C-247/09, Xhymshiti (ECJ 18 November 2010).

  43. 43.

    General Union competence on social security necessary of migrant workers is prescribed in Article 48 TFEU. However, Article 79 TEFU must be considered as lex specialis when the social security deals with third-country nationals moving between the MS.

  44. 44.

    Directive 2003/86/EC, O.J. L 251/12 (2003). See also Case C-540/03, Parliament v Council (ECJ 27 June 2006), in which the Parliament challenged the Directive on human rights grounds. The Court, however, disagreed with the Parliament and upheld the Directive, considering that it provides for an even higher protection than the one offered by Article 8 ECHR (right to family life), which fails to guarantee a right of admission to family members.

  45. 45.

    See also Case C-578/08, Chakroun (ECJ 4 March 2010), where the Court stated that exceptions to allowing family reunification in the Directive must be interpreted strictly. In other words, the Court limited the MS’ discretion to reject admission of migrants’ family members on grounds of receiving social assistance.

  46. 46.

    Directive 2003/109/EC, O.J. L16/44 (2004). After the Lisbon Treaty, the Directive was amended as to apply also to refugees and persons under subsidiary protection. See Directive 2011/51, O.J. L 132/1 (2011).

  47. 47.

    See also Case C-508/10, Commission v Netherlands (ECJ 26 April 2012), where the Court ruled that although the Directive leaves discretion to the MS to charge fees for applications for residence permits, those fees may not have as its object or effect creating an obstacle to obtaining the long-term resident status.

  48. 48.

    Article 11. See also Case C-502/10, Singh (ECJ 18 October 2012) on exclusions from the scope of the Directive.

  49. 49.

    See Directive 2004/114/EC, O.J. L 375/12 (2004) and Directive 2005/71/EC, O.J. L 289/15 (2005). These two Directives were later amended and merged into the Parliament/Council Directive (EU) 2016/801, O.J. L. 132/21 (2016), which harmonised the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing.

  50. 50.

    See, for example, Proposal for a Directive on the conditions of entry and residence of third-country nationals for the purpose of paid employment and self-employed, COM (2001) 386.

  51. 51.

    COM(2005) 669. See also Green Paper COM (2004) 811.

  52. 52.

    Proposal COM(2010) 378 and 379.

  53. 53.

    Directive 2009/50/EC on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment, O.J. L 155 (2009). See also the new proposal for the recast Directive introduced by the Commission in June 2016, COM(2016) 378, which seeks to further simplify the procedures, introduce more flexible conditions for admission and also facilitate the intra-EU mobility. The Proposal is currently under discussion in the Council.

  54. 54.

    The Directive provides for more favourable rules on entry, residence, family reunion and long-term residence than for other immigrants. See Articles 5, 12–19.

  55. 55.

    Regulation 1231/2010, O.J. L 344/1 (2010) and Directive 2011/51/EU, O.J. L 132/1 (2011).

  56. 56.

    Directive 2011/98/EU, O.J. L 343/1 (2011).

  57. 57.

    For details on the scope of the right to equal treatment, see Article 12.

  58. 58.

    Groenendijk (2014), p. 326.

  59. 59.

    Directive 2014/66/EU on the conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer, O.J. L 157/1 (2014).

  60. 60.

    Directive 2014/36/EU on the conditions of entry and stay of third-country nationals for the purpose of employment as seasonal workers, O.J. L 94/375 (2014).

  61. 61.

    O.J. L 131/7 (2008).

  62. 62.

    O.J. L 168/18 (2007), later replaced by Parliament/Council Regulation (EU) No 516/2014 establishing the Asylum, Migration and Integration Fund, O.J. L 150/168 (2014). For the most recent efforts in facilitating integration, see Commission Communication: Action Plan on the integration of third country nationals, COM(2016) 377.

  63. 63.

    O.J. L 283/40 (2006).

  64. 64.

    Wiesbrock (2010), p. 719.

  65. 65.

    Baldaccini and Toner (2007), p. 16.

  66. 66.

    Council of the European Union, The Stockholm Programme, O.J. C 115 (2010).

  67. 67.

    Baldaccini and Toner (2007), p. 15.

  68. 68.

    Peers et al. (2012), p. 13.

  69. 69.

    This was included in the text of the Lisbon Treaty following upon the persistent requests of Germany. See Groenendijk (2014), p. 325.

  70. 70.

    See, for example, Article 6 of the Blue Card Directive. See also Article 7 of the Directive on Seasonal Workers and Article 6 of Directive on Intra-Corporate Transfers.

  71. 71.

    Peers (2008), p. 241.

  72. 72.

    Groenendijk (2014), p. 325. See also Case C-268/06, Impact (ECJ 15 April 2008) concerning the exclusions from general competences.

  73. 73.

    Peers (2008), p. 244.

  74. 74.

    Toner, for example, considers that exclusion of all those coming to take up confirmed and established work contracts or business agreements seems far-fetched. Toner (2014), p. 26.

  75. 75.

    Groenendijk (2014), p. 313.

  76. 76.

    Hailbronner (2010), p. 9.

  77. 77.

    Peers (2008), pp. 241–244.

  78. 78.

    Peers et al. (2012), p. 14.

  79. 79.

    However, issuing their visas for entry and long-term residence would arguably still fall within the immigration law competence under Article 79 TFEU.

  80. 80.

    See Case 12/86, Demirel (ECJ 30 September 1987).

  81. 81.

    Note that Article 79.1 TFEU provides that fair treatment should refer to those third-country nationals who reside legally in MS. This reservation of fair treatment only for legal immigrants, however, should not exclude fair treatment also towards irregular immigrants, since Article 67.2 TFEU as a more general legal basis for common immigration policy makes no distinction between the two categories of third-country nationals.

  82. 82.

    The Treaty of Lisbon explicitly granted the Union (for the first time ever) the competence to enter into readmission agreements with third countries, giving the Parliament powers to consent on the conclusion of such agreements. Prior to this explicit competence, however, the Union nonetheless entered into such agreements based on the doctrine of implicit external powers.

  83. 83.

    Boswell (2014), p. 42.

  84. 84.

    Under this article, the Community had powers to regulate “illegal migration and illegal residence, including repatriation of illegal residents.”

  85. 85.

    Toner, however, considers that using the term ‘unauthorised’ alongside a reference to ‘illegal’ immigration and the term ‘removal’ alongside ‘repatriation’ did not really change a great deal of substance of those provisions. Toner (2014), p. 26.

  86. 86.

    Cholewinski (2007), p. 301.

  87. 87.

    Düvel (2011), p. 295.

  88. 88.

    Cholewinski (2007), p. 306.

  89. 89.

    The Geneva Convention, as well as the rules for its implementation in EU asylum law, forbid prosecuting asylum seekers for illegal border crossing or for use of falsified documents.

  90. 90.

    Peers (2014), p. 784.

  91. 91.

    Cholewinski (2006), p. 288.

  92. 92.

    Baldaccini and Toner (2007), p. 5.

  93. 93.

    O.J. C 277/2 (1976).

  94. 94.

    See SN 4678/92, SN 3017/93, O.J. C 5/1 (1996), O.J. C 304/1 (1996), O.J. C 5/3, 5 and 7 (1996) and O. J. C 274/20, 21 and 25 (1996).

  95. 95.

    Tampere European Council Presidency Conclusions, SN 200/99 (1999), paras 22–27.

  96. 96.

    Directive 2001/40/EC, O.J. L 149/34 (2001).

  97. 97.

    Directive 2001/51/EC, O.J. L 187/45 (2001).

  98. 98.

    Directive 2002/90/EC, O.J. L 328/17 (2002), and Framework Decision 2002/946, O.J. L 328/1 (2002). See also Case C-83/12 PPU, Vo (ECJ 10 April 2012), providing that these legislative acts take precedence over visa code rules on revocation of visas issued by another MS.

  99. 99.

    2002/629/JHA, O.J. L 203/1 (2002). After the Lisbon Treaty, the Framework Decision was replaced by Directive 2011/36/EU, its legal basis being Article 83.1 TFEU as the criminal law competence.

  100. 100.

    See Commission Communication COM (2001) 672, 15/11/2001, and Action Plan, O.J. L 142/23 (2002).

  101. 101.

    Green Paper on Community Return Policy COM (2002) 175, and Council Action Plan on Return, Council doc. 14673/02 (2002).

  102. 102.

    Directive 2004/81/EC, O.J. L 261/19 (2004).

  103. 103.

    Directive 2003/110/EC, O.J. L 321/26 (2003).

  104. 104.

    Directive 2004/82/EC, O.J. L 261/24 (2004).

  105. 105.

    Decision 2004/573/EC, O.J. L 261/28 (2004).

  106. 106.

    Decision 2004/191/EC, O.J. L 60/55 (2004).

  107. 107.

    Regulation 377/2004, O.J. L 64/1 (2004), as amended by Regulation 493/2011, O.J. L 141/13 (2011).

  108. 108.

    Decision 2005/267/EC, O.J. L 83/48 (2005).

  109. 109.

    European Council, The Hague Programme, O.J. C 53/1 (2005). See also Commission Communication on Policy priorities in the fight against illegal immigration of third-country nationals, COM(2006) 402.

  110. 110.

    At the present moment, the EU has signed readmission agreements that are currently in force with the following third countries: Hong Kong, Macao, Sri Lanka, Albania, Russia, Ukraine, Macedonia, Bosnia and Herzegovina, Montenegro, Serbia, Moldova, Pakistan, Georgia, Armenia, Azerbaijan, Turkey and Cape Verde.

  111. 111.

    Directive 2008/115/EC, O.J. L 348/98 (2008). For a comprehensive analysis of the decision-making process leading to the adoption of the Directive, see Acosta (2009), p. 19.

  112. 112.

    This Directive also applies to asylum seekers whose asylum requests have been rejected.

  113. 113.

    Directive 2009/52/EC, O.J. L 168/24 (2009).

  114. 114.

    The only changes to the previous wording of Article 63.3(b) TEC were, firstly, replacing the word ‘repatriation’ into words ‘removal and repatriation’ (together referred to as ‘return’) as to include all removals to countries that are not the ones of origin, and secondly, replacing the words ‘illegal presence’ to ‘unauthorized presence’ in order to minimise the negative connotations to criminal nature of the conduct. Furthermore, express reference was given to ‘combating trafficking in persons, in particular women and children’.

  115. 115.

    Council of the European Union, The Stockholm Programme, O.J. C 115 (2010).

  116. 116.

    Commission Communication: A European Agenda on Migration, COM(2015) 240 final; see now the recently presented “Migration and Asylum Package” of 23 September 2020, which contains a Communication from the Commission on a New Pact on Migration and Asylum, and a number of new legislative and non-legislative proposals (available at https://ec.europa.eu/info/publications/migration-and-asylum-package-new-pact-migration-and-asylum-documents-adopted-23-september-2020_en) seeking to reorient and modernise Europe’s asylum and migration policy.

  117. 117.

    See Commission Proposal for a Regulation on a European travel document for the return of illegally staying third-country nationals, COM(2015) 668 final, 2015/0306 (COD), currently under discussion in the Council; and EU Action Plan on Return, COM(2015) 453 final. The “Migration and Asylum Package” of 23 September 2020 also strives for an “effective and common EU system for returns” whose main element is the 2018 proposal to recast the Return Directive as laid down in the amended proposal for a Parliament/Council Regulation establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU, COM/2020/611 final (available at https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1601291268538&uri=COM%3A2020%3A611%3AFIN).

  118. 118.

    Note, however, Case C-176/03, Commission v Council (ECJ 13 September 2005) and Case C-440/05, Commission v Council (ECJ 23 October 2007), where the Court held that substantive criminal law measures may be adopted under the supranational method if there was a sufficiently close link with Community policies.

  119. 119.

    See Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims, O.J. L 101/1 (2011) that correctly places its legal basis on Article 83 TFEU.

  120. 120.

    Under the Treaty of Lisbon, the EU is not granted a power to regulate irregular employment as such. Irregular employment may be regulated only if it is ancillary to other EU powers, in this case the immigration power. See Peers et al. (2012), p. 19.

  121. 121.

    See Directive 2009/52/EC on sanctions and measures against employers of illegally staying third-country nationals, O.J. L 168/24 (2009).

  122. 122.

    The rules on detention from this Directive have been interpreted by the Court quite extensively, taking into account protection of the detainees’ human rights. For example, in Case C-357/09 PPU, Kadzoev (ECJ 30 November 2009), the Court emphasised that rules on detention from the Returns Directive do not apply to asylum seekers, as their detention is regulated in the asylum legislation. In Case C-61/11 PPU, El Dridi (ECJ 28 April 2011), the Court ruled that imposing imprisonment as a criminal law penalty for the failure to leave the country during the voluntary departure period was not compatible with the Directive. In Case C-329/11, Achugbabian (ECJ 6 December 2011), the Court also found that the Directive does not cover the initial detention of immigrants for determining whether their stay is legal. However, in Case C-290/14, Celaj (ECJ 1 October 2015), the Court concluded that a criminal law sentence of imprisonment imposed for a breach of a re-entry ban was compatible with the Returns Directive. Most recently, in Case C-47/15, Affum (ECJ 7 June 2016), it was also confirmed that the Directive covers irregular migrants even if they are in ‘mere transit’ and only briefly present on the MS territory. For a detailed review on EU detention rules, see Hatzis (2013).

  123. 123.

    See Article 72 TFEU, which provides that no Title V measure shall affect the exercise of responsibilities incumbent upon MS with regards to the maintenance of law and order and the safeguarding of internal security.

  124. 124.

    All cited Internet sources in this comment have been accessed on 29 December 2020.

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Authors and Affiliations

  1. University of Zagreb, Zagreb, Croatia

    Nika Bačić Selanec

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Editors and Affiliations

  1. Faculty for Economics, Law and Social Science, University of Erfurt, Erfurt, Germany

    Hermann-Josef Blanke

  2. Università degli Studi di Teramo, Teramo, Italy

    Stelio Mangiameli

List of Cases

List of Cases

  • ECJ 30.09.1987, Case 12/86, Demirel, ECR I-03719 [cit. in para 44]

  • ECJ 11.10.2001, Joint Cases C-95-98/99, Khalil and C-180/99, Addou, ECR I-07413 [cit. in para 31]

  • ECJ 13.09.2005, Case C-176/03, Commission v Council, ECR I-7879 [cit. in para 56]

  • ECJ 27.06.2006, Case C-540/03, Parliament v Council, ECR-I 5769 [cit. in para 31]

  • ECJ 23.10.2007, Case C-440/05, Commission v Council, ECR-I 9097 [cit. in para 56]

  • ECJ 15.04.2008, Case C-268/06, Impact, ECR I-02483 [cit. in para 38]

  • ECJ 30.11.2009, Case C-357/09 PPU, Kadzoev, ECR I-11189 [cit. in paras 18 and 57]

  • ECJ 04.03.2010, Case C-578/08, Chakroun, ECR-I 1839 [cit. in paras 18 and 31]

  • ECJ 11.11.2010, Case C-247/09, Xynshiti, ECR I-11845 [cit. in para 31]

  • ECJ 18.11.2010, Case C-247/09, Xhymshiti, ECR I-11845 [cit. in para 18]

  • ECJ 17.02.2011, Case C-283/09, Werynski, ECR I-11845 [cit. in para 20]

  • ECJ 28.04.2011, Case C-61/11 PPU, El Dridi, ECR I-3015 [cit. in para 57]

  • ECJ 06.12.2011, Case C-329/11, Achugbabian, ECR I-12695 [cit. in para 57]

  • ECJ 10.04.2012, Case C-83/12 PPU, Vo, ECLI:EU:C:2012:202 [cit. in para 52]

  • ECJ 26.04.2012, Case C-508/10, Commission v Netherlands, ECLI:EU:C:2012:243 [cit. in para 31]

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Bačić Selanec, N. (2021). Article 79 [Common Immigration Policy]. In: Blanke, HJ., Mangiameli, S. (eds) Treaty on the Functioning of the European Union – A Commentary. Springer Commentaries on International and European Law. Springer, Cham. https://doi.org/10.1007/978-3-030-43511-0_80

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