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Ceding Control and Taking it Back: The Origins of Free Movement in EU Law
Industrial Law Journal ( IF 1.025 ) Pub Date : 2021-10-22 , DOI: 10.1093/indlaw/dwab032
Catherine Barnard , Sarah Fraser Butlin

Given the emphasis, at the time of the 2016 referendum, on the need to take back control of UK immigration policy, the article raises the question as to why the founding EU States decided not only to cede control in this sensitive field but also to allow such a generous approach to economic migration (to include not just workers but also their family members and to include equal access to benefits, including to housing) (the ‘why’ question). We also wanted to know whether any of the concerns which so resonated in the 2016 referendum campaign, especially about benefit tourism and pressure on public services, were ventilated at the time (the ‘risks’ question). Given that the contemporaneous academic literature did not offer much insight, we went to the archives and traced the evolution of the debates on economic migration in the period leading up to the signing of the Treaty of Rome, and again in the run up to the adoption of the key Regulation on workers, Regulation 1612/68 (now Regulation 492/11). We suggest that in respect of the ‘why’ question there was no single—or simple—explanation as to why the founding states agreed to the introduction of free movement but various justifications were offered. In respect of the ‘risks’ question, our research revealed little contemporaneous discussion of the concerns that subsequently took hold, primarily in the UK but also elsewhere. More striking were the extensive debates on adequate housing for migrant workers and their families. This was less couched in terms of risk but in terms of the paucity of provision of adequate housing for all families. The article concludes by considering the question as to why there was so little attention paid to the radical nature of free movement.

中文翻译:

放弃控制权并收回控制权:欧盟法律中自由流动的起源

鉴于在 2016 年公投时强调需要收回对英国移民政策的控制权,这篇文章提出了一个问题,即为什么创始欧盟国家不仅决定放弃对这一敏感领域的控制权,而且还允许如此慷慨的经济移民方法(不仅包括工人,还包括他们的家庭成员,并包括平等获得福利,包括住房)(“为什么”问题)。我们还想知道,在 2016 年公投活动中引起如此强烈共鸣的任何担忧,特别是关于福利旅游和公共服务压力的担忧,在当时是否得到了宣泄(“风险”问题)。鉴于同时代的学术文献没有提供太多见解,我们查阅了档案,追溯了在签署《罗马条约》之前以及在通过关于工人的关键法规第 1612/68 号法规之前的时期关于经济移民的辩论的演变(现为第 492/11 号条例)。我们建议,关于“为什么”的问题,没有单一或简单的解释来解释为什么创始国家同意引入自由流动,但提供了各种理由。关于“风险”问题,我们的研究表明,当时很少有人讨论随后出现的担忧,主要是在英国,但也包括在其他地方。更引人注目的是关于为农民工及其家庭提供适足住房的广泛辩论。这在风险方面的表述较少,但在为所有家庭提供适足住房的不足方面。文章最后考虑了一个问题,即为什么对自由流动的激进性质关注如此之少。
更新日期:2021-10-22
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