New constraints on mobility in Europe: Policy response to European crises or constitutional ambiguity?

Abstract

This paper investigates the effectiveness of recent measures undertaken by the governments of some European Union Member States such as the United Kingdom, Germany and Poland as well as of non-EU European countries such as Switzerland in order to face growing concerns in the public opinion with the increase of transnational migration flows on European continent. The authors analyse selected legislative, regulatory and administrative measures motivated by objectives of migration policy or affecting the mobility of workers, taken in the aftermath of the economic and financial crisis. They argue that, albeit political discourse unfavourable on immigration and migrant workers has become the mainstream in some countries, the measures taken by national governments and legislators seldom involve direct constraints on the free movement of workers which is safeguarded by EU treaty provisions. However, concrete examples illustrate that access of such workers to social security benefits has been restricted through making use of certain derogations from the principle of equal treatment allowed under EU law. In some cases national legislators had to abandon plans to limit directly the free movement of workers, because the envisaged provisions were incompatible with the EU Treaties. With regard to social security, regulatory measures and administrative actions may have effectively implemented national policy concerns with large-scale migration movements. In general, it could be concluded that the European Union, while struggling against multiple crises, has taken a not fully favourable approach to free movement and migration of EU citizens. The present political climate unfavourable to intra-European migration may be understood, from the perspective of historical analysis, as an expression of constitutional ambiguity underlying the European Union’s normative framework, consisting in a gap between its formally recognised noble values and the mentalities prevailing in the citizenry, which may place democratic forms of governance in a serious dilemma.

Keywords

• Constitutional ambiguity
• EU migration policy
• economic freedoms