LUIGI MELICA

CONSTITUTIONAL PROCESS AND

HUMAN RIGHTS PROTECTION IN
THE EUROPEAN UNION

With the support of the

Education and Culture DG Lifelong Learning Programme
of the European Union

This project has been funded with support from the European Commission.
This publication reflects the views only of the author, and the Commission
cannot be held responsible for any use which may be made of the information
contained therein.
Project coordinator: Professor Lucian CHIRIAC, PhD.

This volume has been made within the project Master Professionnel
Europen D'Administration Publique (MPEAP
Project no. 510222-LLP-1-2010-1-RO-ERASMUS-ECDSP

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MELICA, LUIGI
Constitutional process and human rights protection in EU / Luigi Melica.
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Bibliogr.
Index
ISBN 978-606-581-045-7

341.231.14(4) UE

All Rights Reserved. No part of this publication may be reproduced,

stored in a retrieval system, or transmitted, in any form or by any
means, electronic, mechanical, photocopying, recording, scanning or
otherwise, witout the prior written permission of the publisher.
Cover graphics: Cristian CHIRIAC
Word-processing: Annamria MAGYARI
Editor: Petru Maior University, Romania
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Responsible for printing: Petru POP

AUTHOR
Senior Professor of Constitutional and EU Law;
Professor at the PHD course Master of EU ; Pro
rector for the International Affair of the University
of Salento at the University of Salento Italy
Legal expert and lawyer . He has published 3 books
and more than 25 publications on EU, Civil and
Administrative Law issues, including analysis of
Italian and EU laws in various fields. He is
manager/member in national and
European
projects.

CONTENTS

CHAPTER I ....................................................................................................... 7
Introduction ......................................................................................................... 7
1. The main goals of the Council of Tampere ............................................. 8
2. The new approach: the governance of the phenomenon: striking the
balance between security and the right of integration in the hosting
countries .................................................................................................. 11
3. The legal instruments adopted in order to govern the phenomenon of
immigration ............................................................................................. 16
4. The Directive on the admission of third-country researchers
and students, policy to attract qualified migrants ................................... 17
5. The Council Decisions, October 5th, 2006 and May 14th, 2008 on the
establishment of mechanisms for exchanging information on measures
taken in the area of asylum and immigration and creation of
EU network ............................................................................................. 35
CHAPTER II ................................................................................................... 38
Introduction ....................................................................................................... 38
1. Treaty Schengen. Effects of its incorporation in EU external activities
towards Candidate Countries ................................................................. 38
2. European Neighborhood Policy: instruments and contents.
An Overview ........................................................................................... 40
3. European Neighborhood Policy: instruments and contents.
An Overview ........................................................................................... 42
4. The EU Parliament preventive approach on Readmission
Agreements ............................................................................................. 48
5. Conclusions ............................................................................................. 58

CHAPTER III .................................................................................................. 61

Introduction ....................................................................................................... 61
1. EU external activity. Legal basis for disseminating constitutional
values and principles ............................................................................... 62
2. EU technical assistance to promote democracy and protection of
human rights in Developing Countries. Historical background.
Helsinki and Paris Agreements ............................................................... 64
3. EU Financial Instrument from promoting Democracy: (EIDHR)
Regulation EC 1889/2006 ....................................................................... 73
4. The European Commission: constitutional technical assistance to
Third countries. The Technical Aid to the Commonwealth
of Independent States .............................................................................. 77
5. The ENP assistance: Commission of the European
Communities 05/12/2007: Strong European Neighborhood Policy
(COM (2009) 188/3 Communication implementing European
Neighborhood Policy, 2008 .................................................................... 92

Constitutional process and human rights protection in the European Union

CHAPTER I
Introduction
1. The main goals of the Council of Tampere. 2 New approach: governance of the
phenomenon : striking the balance between security and the right of integration in
the hosting countries. 2.1 The EU integration policy. 3. The legal instruments
adopted in order to govern the phenomenon of immigration. 4. The Directive on the
admission of third-country researchers and students, policy to attract qualified
migrants. 4.1. The Directive 2003/109/EC of 25 November 2003, concerning the
status of third-country nationals who are long-term residents. 4.2. The Council
Directive 2003/86/EC of 22 September 2003 on the right to family reunification.
4.3. The EU antidiscrimination Statutes.
4.4The balance between the
principle/right of security and the principle/right of liberty in the area of the
international protection. 5. The Council Decisions, October 5th, 2006 and May 14th,
2008 on the establishment of mechanisms for exchanging information on measures
taken in the area of asylum and immigration and creation of EU network.
The level of European influence on the individual States in the field of migration
has significantly increased in the last eleven years as it is evident in the wording of
a key area of the Treaty namely liberty, security and justice. The first key step
towards a communitarian policy on migration is the reform of the Treaty of
Amsterdam, signed on October 2nd, 1997, which entered into force on May1st
1999. Generally speaking, that Treaty, bring about a further step towards a greater
protection of the rights and interests of EU citizens within the context of the
cooperation on justice and home affairs, which had already initiated with the Treaty
of Maastricht. Due to the provisions of the Treaty of Amsterdam, many of the
activities covering the sectors of justice, freedom and security, which were - in the
past - covered by the normative of each State Member have been regulated in
accordance with Community rules. Notably, the main goal of that new EU decision
was to ensure protection to the freedoms of the EU citizens while guaranteeing
their security. As for migration and asylum issues, the Treaty has newly regulated
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Constitutional process and human rights protection in the European Union

on the allocation of competences concerning visa policy, the conditions for issuing
residence permits to immigrants, the asylum procedures and even the judicial
cooperation in civil matters. In addition to defining the jurisdiction of the Union in
matters of asylum and immigration, the Treaty has also strengthened each of the
three pillars on which the European Union grounds its action: the European
Communities (first pillar), the Common Foreign and Security policy (second pillar)
and the Cooperation in the fields of Justice and Home affairs (third pillar).
In pursuing the migration and asylum main goals, the EU strategy was
launched in Tampere, where there was laid the very principle for the juridical and
judicial framework concerning the future EU policy and law in this area; it should
be based on the two cornerstones: the right of liberty and the security to be both of
them bequeath upon the EU Community and upon migrants from Third Countries.
Reminding as the liberty and the security have been traditionally defined by the
mainstream school of thoughts as two fundamental principles and not as two strictu
sensu rights, but, being also aware, that article 6 of the Nice Charter states that
Everyone has the right to liberty and to security of person, we shall use, in the
following pages, the terms of principle/right both to security and liberty,
postponing, in the conclusions of the research, the theoretical arguments which
support the contents of both rights.
1.

The main goals of the Council of Tampere

The European Council of Tampere has defined the migration policy as a

prerequisite of a EU policy in the area of liberty, security and justice. As stated
above, the aspects of liberty and of security have influenced the EU policy on
migration, as beside the liberty and the security of the EU citizens, the new EU
Statutes take into account also the liberty and the security of Third countries
migrants. As stated above, to elaborate on issues related to liberty and security
was at the basis of the proposed activities, giving clear priority to extending
liberties and security to all EU citizens and migrants from Third countries. The EU
policy on migration was defined according to the following lines:
- information campaigns on the actual possibilities for legal immigration, and for
the prevention of all forms of human trafficking;
- common policy on visas;
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Constitutional process and human rights protection in the European Union

- constant and fruitful exchange of information on false documents;

- a partnership with countries of origin to promote joint development;
The outcome of the Tampere debate was the decision to draft a migration
policy giving a fair treatment to third country nationals, conferring them the same
rights and obligations which apply to citizens of EU states. An important study on
how the implementation of Tampere policy should proceed was carried out by the
Commission during 2000. Its results on immigration policies for the Union were
submitted to the States on November 22nd, 2000. The new approach on
immigration is fundamentally based:
a) on the regulation of migration flows;
b) on the cooperation among countries with the countries of origin and
transit of immigrants:
c) on a common legal framework for the admission of third-country
nationals designed to recognize to those new arrivals, who are actually legal
residents in the territory of the Member States similar rights and obligations to
those exercised by and binding to EU citizens (i.e. the management of the
integration of the third country nationals). While objective (sub c) has been
achieved by several political initiatives (such as huge investments addressed to the
EU States for the implementation of projects aimed at favoring the integration of
third-country nationals in host Countries) and by the anti-discrimination directives
(see paragraphs, n.3.5), the other goals still depend on the approval of the directives
on economic migration (see paragraph n. 3.1,3.2). Furthermore in the conclusions
of the Justice and Home Affairs Council issued on May 28th-29th, 2001
recommended a comprehensive and coherent framework for future action on
improving statistics. Specifically, the Communication of the Commission to the
Council and to the European Parliament adopted an Action Plan for the gathering
and analysis of data from the Community Statistics in the field of migration,
proposing, inter alia, the adoption of a legislation on Community statistics
regarding migration and asylum.
In brief, at the basis of this new policy the EU has placed the following factors (see
par. n.5).
- the enlargement of the European Union studied in parallel with the
implications of the phenomena associated with migration;
- the significant number of migrants currently moving to EU Member States
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Constitutional process and human rights protection in the European Union

from New Arrival Member States, which in the past were emigration
Countries;
- the strong need of common policies among Member States affected by not
only the entry flow of migrants but also their social inclusion in the EU area;
- the impossibility to adopt common policies and disciplines if there is a lack
of timely and harmonized statistical information, regarding inter alia - the
profession, education, qualifications and type of activity of migrants.
Therefore, the EU has devised its policy on two prongs, on one hand
preparing a common strategy addressed to the Member States, on the other hand
requiring from the countries of origin of migrants, a meaningful cooperation in
every legal issue related to migration. Thus, after Tampere, the EU Commission
has considered that all those objectives would be achievable, respectively, on one
hand, only if a set of combined measures - part of them linked to the migration
dynamics related to the management of the migration issues (see supra), part of
them incorporating the principle of social inclusion of third-country nationals
into the European society - were devised and on the other hand, only if such a set of
measures were intensely disseminated among the EU States, what is called the
promotion of diversity in the European society. Regarding the strategy targeting
possible immigrants still in their very countries of origin, the EU authorities
launched a campaign of prevention combining a wide spreading of correct
information on the legal channels to immigrate together with an initiative to make
possible immigrants aware on all forms of human trafficking.
The EU proposed the Countries, which the massive migration wave comes to
accept a common policy on visas and a permanent exchange of information on
false documents (see II Chapter).
In return the EU would guarantee:
- a fair treatment of the respective citizens, granting them a similar level of
protection to that one recognized to EU citizens;
- a wider partnership including different forms of joint development.
Next pages illustrate the main lines of the EU approach on the area of policy and
law.

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