7.6.2011   

EN

Official Journal of the European Union

C 166/59

—

stresses that legal certainty, lawfulness and fair, equal treatment of workers from third countries must be ensured in the EU;

—

emphasises that migration is closely linked to development and notes that the emigration of skilled workers should not have a negative economic impact (‘brain drain’) on developing countries. Therefore welcomes the fact that the directives promote circular migration, in a way which could make a positive contribution both to the Member States' labour markets and to development in the countries of origin;

—

takes note with interest of the scrutiny procedures by national parliaments regarding both proposals and of the views and arguments expressed therein; considers, based on its own analysis, both proposals to be compatible with the subsidiarity principle; underlines the fact that that the added value of EU legislation must lie mainly in its ability to prevent national systems from engaging in a race to the bottom with regard to protection;

—

reiterates the significance of the Member States' right under the Treaty to determine the volumes of admissions while stressing that the Member States must involve local and regional authorities in deciding on the number of third-country nationals to be admitted to their territory, and on their employment profiles;

—

cautions that both directives should be enacted in such a way as to respect the principle of Community preference;

—

is convinced, nevertheless, that seasonal work and intra-corporate transfers have a major contribution to make to the recovery of certain economic and production sectors in Europe.

Rapporteur

Graziano Ernesto MILIA (IT/PES), President of the Province of Cagliari

Reference documents

Proposal for a Directive of the European Parliament and Council on the conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer

COM (2010) 378 final and

Proposal for a Directive of the European Parliament and Council on the conditions of entry and residence of third-country nationals for the purposes of seasonal employment

COM (2010) 379 final

1.

welcomes the two Commission proposals, on conditions for entry and residence of seasonal workers from third countries and on intra-corporate transfers of third-country nationals; nevertheless, underlines that the two proposals must be viewed in the light of the ongoing debate on legal migration in the EU and that it is vital that such a policy should take a consistent approach – also covering the social aspects of the issue - in order to create legal certainty and ensure equal treatment and compliance with fundamental rights;

2.

draws the Commission's attention to the need to counter illegal immigration and any form of illegal work or exploitation in the EU of third country nationals. The Committee of the Regions believes it is essential to provide third country nationals working legally in the EU with working and residence conditions which are in line with fundamental rights and the requirements laid down by law and to ensure that they are treated on an equal footing with EU citizens, and to encourage the widest, fullest social integration of these people. In this regard, the Committee of the Regions calls for absolute, unreserved respect for the fundamental rights laid down in the EU Charter of Fundamental Rights, and points out that this now has full legal status alongside the Treaties following the entry into force of the Lisbon Treaty;

3.

stresses that legal certainty (in the sense of a clear regulatory framework) and lawfulness (in the sense of respect for the law) and fair, equal treatment of workers from third countries must be ensured in the EU. Regions, intermediary authorities such as provinces, and municipalities (including rural areas) are the first to experience the economic and social impact of migration flows in their areas both regular and irregular. Regional, intermediate and local authorities (RLAs) are responsible for providing individuals with a wide range of services (reception, healthcare, education, vocational training, housing, etc.), and so their role on the ground and in the management of these issues should be underlined by the European Commission;

4.

highlights that regional, local and intermediate authorities are key players in the recently-adopted EU 2020 strategy addressing the challenges posed by the economic and financial crisis, climate change and energy resources, and therefore EU employment policy as well. As the legislative proposals in question show, these issues are closely linked to immigration policy;

5.

points out that, although legal immigration falls within the remits of both the EU and the Member States, implementation of legal immigration policy is closely related to other policies such as (as stated in the proposals in question) labour, employment and social affairs, social security, local public services and services of general interest, housing and other policies which have been devolved in many EU Member States to RLAs. Therefore, RLAs play an important role in gathering information and statistical data to be used in the course of evaluation of existing legislation or the design of new measures in migration policies. Thus, the need for a close partnership with RLAs should be stressed;

6.

emphasises that migration is closely linked to development and notes that the emigration of skilled workers should not have a negative economic impact (‘brain drain’) on developing countries. Therefore welcomes that the directives promote circular migration, in a way which could make a positive contribution both to the Member States' labour markets and to development in the countries of origin (1);

7.

acknowledges that circular migration may forge a valuable link between the countries of origin and the host countries, and may serve to promote dialogue, cooperation and mutual understanding and proposes to use the existing tools and institutional structures, such as the Committee of the Regions' initiative - Euro-Mediterranean Regional and Local Assembly (ARLEM) to promote these kinds of links;

8.

recalls, however, that circular migration should not be seen as a substitute for permanent migration and effective channels must be established to facilitate migrants' circulation and return as well as to avoid any irregular immigration;

9.

takes note with interest of the scrutiny procedures by national parliaments regarding both proposals and of the views and arguments expressed therein; considers, based on its own analysis, both proposals to be compatible with the subsidiarity principle; underlines that the added value of EU legislation must lie mainly in its ability to prevent national systems from engaging in a race to the bottom with regard to the protection of seasonal workers and intra-corporate transferees;

10.

considers legislation on the intra-corporate transfer of certain key personnel necessary at the EU level given the discrepancies between the Member States' legislation as regards admission and rights of third-country nationals as intra-corporate transferees, the need to tackle situations with a cross-border nature and to guarantee a better discharge of the Union’s international obligations under the WTO; in addition, believes that such EU legislation would increase the attractiveness of the EU labour market to highly qualified migrants and thus contribute to the competitiveness of the EU’s economy as a whole;

11.

believes that legislation regarding seasonal workers at the EU level is necessary because of the existing discrepancies between the Member States' legislation as regards admission and rights of third-country nationals as seasonal workers, the need to ensure a uniform set of minimum rights and the need to guarantee that instances of abuse as well as illegal immigration are countered;

12.

reiterates the significance of the Member States' right under the Treaty to determine the volumes of admissions while stressing that, in compliance with the principle of subsidiarity and multilevel governance, the Member States must involve local and regional authorities in deciding on the number of third-country nationals to be admitted to their territory, and on their employment profiles (2);

13.

supports, after the examination of both proposals with regard to the proportionality principle, the choice of legal instrument, directives in both cases, in that it gives Member States the necessary room for discretion on domestic implementing arrangements, and to take the specific situations and needs of each Member State and its authorities responsible for implementing the directives at the national, regional and local levels into consideration;

14.

nevertheless believes that some individual elements of the proposals might require closer analysis with reference to the proportionality principle: indeed the directives should not place disproportionate obligations upon individuals seeking to enter the EU as seasonal workers or intracorporate transferees or their employers; neither should they generate unnecessary costs or burdens for the national, regional or local authorities called to implement them; with regard to the latter consideration, the time limit of thirty days which authorities would have to consider applications and decide on admission may be considered excessively short and may put authorities in a number of Member States under considerable administrative and financial pressure;

15.

cautions that both directives should be enacted in such a way as to respect the principle of community preference, in particular as regards citizens of the new Member States for whom transitional arrangements still apply; to achieve this aim, it may be useful to allow Member States and their authorities to perform so-called labour market tests, i.e. to verify whether a post could not be filled from job-seekers in the EU labour market; in this regard, is not convinced by the Commission’s argumentation that no labour market test is needed in the case of intra-corporate transfer;

16.

regrets the considerable delay with which the two proposals in question, already included in the December 2005 ‘legal immigration’ package, have been issued by the Commission – almost five years after the political commitment was made on these subjects. and also regrets the fact that due to difficulties in discussing the ‘single permit’, the two processes, which should have run in parallel, have now been separated. Regrets the fact that the proposals have been submitted, moreover, in a period when some sectors such as agriculture, rearing and pastoralism (3), tourism and the construction sector, which form the core of seasonal work, have been particularly badly affected by the economic and financial crisis, as is shown by EU data and statistics, and are only seeing a slow recovery. Thus, the economic situation has changed since 2005, when the political commitment was made on these issues, and economic, statistical and employment data on the impact of seasonal work on the European economy should be updated;

17.

is convinced, nevertheless, that - despite the delay in submitting the proposals and the additional time the EU legislative process and subsequent national implementation will take- seasonal work and intra-corporate transfers have a major contribution to make to the recovery of certain economic and production sectors in Europe;

18.

welcomes the introduction of single application procedures for seasonal workers and intra-corporate transfers as a useful streamlining tool which will ensure transparency and certainty in the admission procedures; however, agrees with views expressed by some in the European Parliament that it would have been more efficient and straightforward to include seasonal workers and intra-corporate transfer within the scope of the so-called ‘single-permit’ directive (4); therefore, calls on the co-legislators to continue negotiations on this matter;

19.

agrees with the proposals in that Member States shall refuse applications if prospective employers have been sanctioned in conformity with national law for undeclared and/ or illegal work; however insists that this measure should be dissuasive and proportionate rather than automatic; an automatic exclusion of prospective employers without regard to the gravity or nature of the infraction would affect the job-seekers from third countries;

20.

stresses that unfortunately third country seasonal workers are currently subjected to exploitation and working and living conditions which are below the legal standards in certain EU Member States. This is because national legislation on labour law and social security is often not implemented or enforced in practice. The proposal should therefore establish a clearly-defined legal framework which helps combat all forms of illegal seasonal work and ensure decent working conditions for workers from third countries. This new regulatory framework will therefore require oversight mechanisms to avoid abuse or evasion of the rules, such as monitoring of the abovementioned working and residence conditions, along with cooperation between public authorities at EU, national, regional and local level in a form of integrated multi-level governance. In this regard the Committee of the Regions recommends that the activity of recruitment agencies is also regulated in a way as to make sure that it cannot be abused as a cover for exploitation or abuse;

21.

recalls the important role and competences of RLAs and the CoR in preventing and combating discrimination and the de-humanisation of seasonal migrant workers in light of the high level of labour insecurity and vulnerability inherent in seasonal work;

22.

is pleased that the idea of long-period multiple entry visas as facilitators of circular mobility, endorsed in its previous opinion, has been taken up (5);

23.

points out that it would be useful to better define the proposal's scope, and therefore the sectors it covers, in order to avoid abuse of seasonal work permits in sectors that cannot be considered seasonal according to the specific characteristics of seasonal work in Europe and in the light of the spirit and aims of this proposal. In most OECD countries immigrants are over-represented in temporary jobs. The percentage of immigrants in temporary jobs can be at least 50 % higher than the percentage of EU citizens; hence the need to prevent the rules being abused and seasonal work being used to legalise forms of work of a different, insecure nature;

24.

welcomes the fact that the directive would oblige employers to provide evidence that third-country national seasonal workers benefit from adequate and not excessively priced accommodation. This is a direct recognition of the particularly vulnerable situation of third-country national seasonal workers. Notes that this right would go considerably beyond the rights enjoyed by seasonal workers, who are EU nationals and therefore urges the Member States to consider according similar treatment to EU nationals;

25.

points out in this regard that, in the light of research and consultations carried out by the rapporteur, certain types of seasonal work, for instance in agriculture (in particular the zootechnical and plant and flower sectors) or large-scale construction (civil engineering sites and works), can entail periods of work longer than six months; therefore believes that the maximum length is too restrictive and should be extended to nine months;

26.

welcomes the Commission's endeavours to develop an all-encompassing framework for immigration policy and with this proposal to make the EU's economy more attractive to highly qualified workers in multinational companies based in third countries, so that they can be transferred by their company to work legally in a European office of that company; in this context, underlines, on the one hand, the need to avoid discrimination and, on the other, to avoid invalidating the principle of Community preference, ensuring that intra-corporate transferees should enjoy the same working conditions as EU employees in comparable situations in the country of residence; therefore recommends removing the reference to the Posted Workers Directive when defining the rights and conditions of intra-corporate transferees;

27.

calls for an explanation of why the labour market test has been excluded from the proposal on intra-corporate transfer. In this connection, the Committee of the Regions points out that EU directive 2009/50/ EC ‘Blue Card Directive’, which deals with highly qualified workers also coming from third countries, does provide for a labour market test;

28.

highlights the fact, moreover, that non-EU companies and multinationals with registered offices in an EU Member State should be encouraged to use highly-qualified local professionals as well in order to ensure the professional development of a highly skilled workforce at the local level. The danger is that large non-EU multinationals will only use low-skilled local labour and highly qualified third-country labour. On the basis of the current proposal, there is no guarantee that EU citizens will be given precedence for managerial, specialist or trainee positions;

29.

notes that the draft directive does not – as it now stands – provide that the Member States can refuse an application on grounds of public health, public policy or public security. Thus, suggests that such a ground for refusal be included in the directive;

30.

welcomes the fact that admitted intra-corporate transferees have the possibility to move between different establishments of the same company or group in different Member States; however cautions that the proposal – as it now stands under article 16 – does not specifically allow the Member States subsequent to the country of first admission to refuse an application for admission and notes that this would in effect amount to a circumvention of their right to determine the volumes of admission of third-country nationals to their territory. Therefore, suggests amending the proposal accordingly;

31.

stresses that the requirement for non-EU workers to prove that they have the professional qualifications needed in the EU Member State or to fulfil the conditions laid down under national legislation to exercise a regulated profession [Article 5(1)(d) and (e) of the proposal] seem disproportionate. It should be pointed out that this would be an excessive burden and that, as yet in the EU, the system for recognition of EU workers' professional qualifications remains an open issue, as noted in the recent Single Market Act; it therefore calls on the European Commission to review this requirement and make it less restrictive;

32.

welcomes the fact that the proposed directive on intra-corporate transfer encourages family reunification and acknowledges that the specific regime for intra-corporate transferees' family members could indeed contribute to making the EU labour market more attractive for them;

33.

would recommend that the co-legislators consider the following legislative amendments to the proposals: