might be called into question by political actors, and this “leads to a free movement dynamic
with potential spillover effects” (149). It seems that the Court, while hesitant for the moment,
has preserved itself a future space whereby it could extend Association-derived rights to all
TCNs by virtue of the principles of legal coherence and consistency, not to mention normative
fairness. Whether or not it acts in this area will be a good future test of the
intergovernmentalism/supranationalism debate.
An additional political opening should be mentioned here, and this is the Treaty provision
prohibiting discrimination on a wide variety of grounds, including race (but, notably, not
nationality). Guild (1998) argues that this anti-discrimination principle (as a guiding norm) “is
capable of providing a further justification . . . for assimilation of the position of legally resident
third country nationals to the position of their member state national colleagues” (619). What
would be the legal logic? The Court may in the future rule that treatment of TCNs “may need to
be equivalent to that of member state nationals if it is to avoid the risk of being challenged as . . .
discriminatory on the basis of race” (Guild: 619). This would admittedly involve a rather large
leap in legal reasoning by the Court, but the fact that it holds competence over the anti-
discrimination provision means that it might in the future take the activist path, member state
objections or not.
3. The Commission and the Long-Term Residents Directive
As stated above, throughout the past decade the European Commission consistently
advocated for TCNs to have free movement rights. But given the intense political salience of the
issue, several member states were reluctant to take this step. And because of the institutional
mechanisms of the Third Pillar (unanimity voting in the Council) it seemed unlikely that the
objections of these member states could be overcome, in potentially drafting a new directive to
Convention