Transcript Slide 1

European
Labour Law
Lecture 04B
4.3 Third country migration 1
Remarkable factual development
1959
2004
Intra Communitary migrants
¾
¼
The Third country migrants
¼
¾
of all migrants in EU
4.3. Third country immigration 2
First standards under the Council of Europe
- Arts. 18/19 (Revised) European Social Charter
Art. 18 – The right to engage in a gainful
occupation in the territory of other parties
Art. 19 – The right of migrant workers and their
families to protection and assistance.
Main contents: Right to equal treatment for legally
residing migrants.
Main reservation: no absolute right to access to
jobs.
4.3. Third country immigration 3
1977 European Convention on the legal status of
migrant workers
- is concerned with the principal aspects of the
legal situation of migrant workers, e.g.
recruitment, work and residence permits, working
conditions, dismissals and social security.
- obtained only 11 ratifications up to now (under
which Italy, Netherlands, Albania and Turkey)
- grants rights to other signatory states on a
reciprocity basis, so of no avail for nationals of MS
which did not ratify nor to nationals of non-MS.
4.3. Third country immigration 4
In the EU until mid 1970s all policies and law in
this field were left to the Member States.
In de mid 1970s a specific action programme
favouring migrant workers and their families 1976,
applicable to both intra-EU and third country
migrants.
This and several succeeding “soft law” documents
notably contained condemnation of xenophobia
and racism, financial support by the European
Social Fund for national programmes to improve
the living and working conditions of these
persons.
No “hard law” in this field.
4.3. Third country immigration 5
After 1992 intensification, notably because since
1992 (Maastricht) the EU had a much more
extensive ambition than to be only an economic
union.
The issues of asylum policies and immigration
policies, notably illegal immigration, residence
and labour were termed as matters of common
interest on which the EU may issue Directives by
unanimity vote in the Council of Ministers.
In the Treaty of Amsterdam 1997 this was turned
into qualified majority vote. Moreover this Treaty
of Amsterdam provided for more vigorous action
against racial and ethnic discrimination.
(I shall deal with that in the 7the lecture)
4.3. Third country immigration 6
Since then only a few “hard law” measures were
taken:
- 2003 Directive 2003/16 on the right to family
unification of third country nationals.
- 2003 Regulation amending Social Security
Regulation 1408/71 to cover subjects of third
countries who are covered in the social security
schemes of the MS.
Usually MS are reluctant to adopt EU rules on the
admission of third country nationals to residence
and to engage in jobs.
A comprehensive Commission proposal on the
conditions of entry and residence was rejected in
2001.
4.3. Third country immigration 7
In 2005 the Commission did new attempts to
move on in this field in its Policy Plan on legal
immigration containing a package of 5 proposals
for Directives:
a. A framework Directive on a single residence
permit for third country nationals
b. A Directive for highly skilled workers
c. A Directive for intra-corporate transfers
d. A Directive for seasonal workers
e. A Directive on illegal immigration.
b. and e have been adopted now, on the others
the negotiations are going on.
4.3. Third country immigration 8
The item of illegal immigration.
Already in 1976 Commission proposed a Directive
to combat illegal immigration, but this proposal
could not be adopted.
In 1994 the Council issued a Recommendation on
this issue.
In 2005 the Commission came forward with a new
proposal for a Directive, which has been
substantially watered down until it could be
adopted in 2009.
4.3. Third country immigration 9
Directive 2009/52 on illegal immigration aims to fix
minimum standards for obligations on employers
to renounce of engaging illegal third country
nationals and for sanctions against violations.
MS must oblige employers to show non-EUnationals their residence permits, to keep copies
ready for inspection and to report the engagement
of such nationals to the competent authorities
MS must ensure effective, proportional and
deterrent pecuniary sanctions and demand the
employer to pay the costs of return and
outstanding wage claims of the worker for at least
3 months
4.3. Third country immigration 10
However MS may fix lower financial sanctions for
illegally working domestic workers in private
households.
MS must also fix other sanctions such as the
exclusion of governmental orders and subsidies.
The sanction of liability of contractors for their
subcontracts was not prescribed but left to the
discretion of the MS.
MS must offer the illegal workers suitable
instruments for complaints and occasionally
reward them with a temporary residence permit.
MS must organise sufficient controls and
inspections.
4.3. Third country immigration 11
Directive 2009/50 on the access of high qualified
nationals of third countries.
In order to make the EU a more interesting place
to work for high qualified third country nationals
this Directive launched the concept of a European
“blue card” (equivalent of the US “green card”)
allowing third country nationals the access to high
qualified jobs.
If such a person has been offered a job of at least
1,5 times the average salary in a MS he can
obtain the blue card for a 1 to 4 years period via a
glib procedure. The card, which also covers family
members, gives the person more rights than other
third country nationals enjoy in the EU.
4.3. Third country immigration 12
The Proposal for a Directive on seasonal workers
has met with much resistance of the MS and
could not been adopted until now.
The proposal of the Commission is to give
seasonal workers from third countries in
agriculture and tourism the guarantee that they
can return during 5 years at least yearly 6 months
to work in these sectors.
The Commission expected that with such a
guarantee the seasonal workers may be more
inclined to return each time to their countries.
Actually they tend to stay illegally.
4.3. Third country immigration 13
Third countries with a special status
- EAA-countries (Norway, Iceland and
Liechtenstein)
- Switzerland
- Other Eastern European countries like Croatia,
Serbia, Macedonia, etc.
- Further Eastern European countries like
Russia, Moldavia
- Turkey
- Magreb countries (Morocco, Algeria and
Tunesia)
4.3. Third country immigration 14
- In the EAA-Agreement it is stated that the EU
Free Movement Regime is in all aspects
applicable to nationals of these countries
(Norway, Iceland and Liechtenstein) and to EU
nationals in these countries.
- Switzerland since 2000 has a Free Movement
Agreement with the EU, virtually containing the
same standards as the EAA-Agreement.
Interesting: an emergency clause until 2014.
Transition period running for Rumenians and
Bulgarians until 2016.
4.3. Third country immigration 15
- With a number of Eastern European countries,
such as Croatia) Association Agreements have
been concluded.
- With other Eastern European States, Southern
Caucasus and Central Asia Treaties of
Partnership and Cooperation have been signed.
Both kind of treaties do not contain a right to free
and equal access to the labour market of the EU
MS and vice versa.
They only pledge equal treatment for workers,
legally residing and working in the other states.
4.3. Third country immigration 16
The case of Turkey is somewhat confusing.
There is an Association Agreement of 1963 and
there are subsequent Protocols and Decisions of
the Association Council with texts on Free
Movement, even announcing that Free movement
of workers would have been established on
December 1, 1986.
What is their contents and value?
The CoJEU has in its case law taken a middle of
the road position.
4.3. Third country immigration 17
It refused direct applicability of some of these
texts, so that there is still no right to access to
work for Turkish nationals.
On the other hand it recognised direct applicability
of other texts with the effect,
- that MS cannot introduce new restrictions of the
access of Turkish nationals to the labour market
- that after one year of work Turkish nationals
have step by step the right to stay on the labour
market of MS
- that, being legally on the labour market of MS
they and their family members have about the
same rights on equal treatment as intra EUmigrants.
4.3. Third country immigration 18
Already in 1976 an Agreement of Cooperation
was concluded between the CEE and Morocco,
Algeria and Tunesia. However, it only contains the
pledge to equal treatment of persons legally
working in the EU and vise versa. No promises on
free and equal access.
4.3. Third country immigration 19
In all these documents on employment relations
with third countries one must not only pay
attention to the access to work of employees but
also to the question whether those relationships
are allowing third country nationals to freely work
as independent persons.
Because this then would enable third country
nationals to work in quasi-independent
relationships.
4.3. Third country immigration 20
The ECJ in 2001 in the Jany case accepted that if
these documents allow the right to free
establishment and free provision of services even
prostitutes must be allowed! The court rules that
the question whether those women really work as
independent workers was to check through the
national authorities.
The ECJ in 2011 in the Vicoplus case accepted
that Member States – in order to better control the
labour market – may require work permits for
those independent working persons from third
countries.