Explanatory Memorandum to COM(2010)379 - Conditions of entry and residence of third-country nationals for the purposes of seasonal employment - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2010)379 - Conditions of entry and residence of third-country nationals for the purposes of seasonal employment. |
|---|---|
| source | COM(2010)379  |
| date | 13-07-2010 |
- Grounds for and objectives of the proposal
This proposal forms part of the EU’s efforts to develop a comprehensive immigration policy. The Hague Programme of November 2004 recognised that ‘[l]egal migration will play an important role in enhancing the knowledge-based economy in Europe, in advancing economic development, and thus contributing to the implementation of the Lisbon strategy’, and asked the Commission to present a policy plan on legal migration ‘including admission procedures, capable of responding promptly to fluctuating demands for migrant labour in the labour market’.
The subsequent December 2005 Commission Communication ‘A Policy Plan on Legal Migration’ (COM(2005) 669) provided for the adoption of five legislative proposals on labour immigration, including a proposal for a directive on the conditions of entry and residence of seasonal workers, between 2007 and 2009.
The European Pact on Immigration and Asylum, adopted by the European Council on 15 and 16 October 2008, expresses the commitment of the European Union and its Member States to conduct a fair, effective and consistent policy for dealing with the challenges and opportunities of migration.
The Stockholm Programme adopted by the Council on 10-11 December 2009 reiterated the Commission and Council’s commitment to implementing the Policy Plan on Legal Migration.
The proposals regarding highly qualified workers (‘EU Blue Card’) and for a general framework Directive were presented in October 2007 i. The Council adopted the first proposal on 25 May 2009; the second one is currently under negotiation in the European Parliament and the Council. Both texts exclude seasonal workers from their scope of application.
The present proposal responds to the above political mandates and aims to contribute to the implementation of the EU 2020 Strategy and to effective management of migration flows for the specific category of seasonal temporary migration. It sets out fair and transparent rules for entry and residence while, at the same time, it provides for incentives and safeguards to prevent a temporary stay from becoming permanent.
- General context
EU economies face a structural need for seasonal work for which labour from within the EU is expected to become less and less available. As regards future skills shortages in the EU, traditional sectors will continue to play an important role and the structural need for low-skilled and low-qualified workers is likely to continue expanding. It should also be pointed out that there is a more permanent need for unskilled labour within the EU. It is expected to be increasingly difficult to fill these gaps with EU national workers, primarily owing to the fact that these workers consider seasonal work unattractive.
Further, there is significant evidence that certain third-country seasonal workers face exploitation and sub-standard working conditions which may threaten their health and safety.
Lastly, sectors of the economy that are characterised by a strong presence of seasonal workers — most notably agriculture, horticulture and tourism — are repeatedly identified as the sectors most prone to work undertaken by third-country nationals who are staying illegally.
- Existing provisions in the area of the proposal
The only existing instrument at EU level that also addresses conditions for the admission of seasonal workers is the 1994 Council Resolution ‘on limitations on admission of third-country nationals to the territory of the Member States for employment’[2], adopted under Article K.1 of the Treaty. That resolution includes elements for a definition of seasonal workers (workers who ‘undertake well-defined jobs, normally fulfilling a traditional need in the Member State in question’). It also sets the maximum duration of stay at six months in any twelve-month period and excludes extensions of the stay for a different type of employment.
The format of a residence permit for third-country nationals is laid down in Regulation (EC) No 1030/2002, which enables Member States to refer, in a uniform format, to all other information ‘in particular as to whether or not the person is permitted to work’. The present proposal builds on that Regulation insofar as it requires Member States to indicate on the uniform format the permission to work, irrespective of the legal basis for admission.
- Consistency with other EU policies and objectives
The provisions in this proposal are consistent with and supportive of the objectives of the Commission Communication on promoting decent work for all (COM(2006) 249) and the goals of the EU 2020 Strategy. Setting up swift and flexible admission procedures and securing a legal status for seasonal workers can act as a safeguard against exploitation and also protects EU citizens who are seasonal workers from unfair competition.
With its central focus on eradication of poverty and achievement of the millennium development goals, the proposal also complies with the EU’s development policy. In particular, its provisions on circular migration of seasonal workers between the EU and their countries – seasonal workers will be able to come to a Member State, go back to their countries and then come again to the Member State – would facilitate reliable inflows of remittances and transfer of skills and investment. As this type of migration is temporary, this Directive is not expected to lead to brain drain in emerging or developing countries.
In respect of the employment-related rights of third-country seasonal workers, the proposal complies with the requirement that all EU policies should ensure a high level of human health protection. It observes the principles recognised by the Charter of Fundamental Rights of the European Union, with particular regard to Article 12 on freedom of assembly and association, Article 21 i on non-discrimination, Article 31 on fair and just working conditions, Article 34 on social security and social assistance, Article 35 on health care and Article 47 on the right to an effective remedy and to a fair trial.
- Consultation of interested parties
The Green Paper on the EU approach to managing economic migration was the subject of a public consultation, which included a public hearing held on 14 June 2005.
Further consultations were carried out by means of seminars and workshops. Member States were consulted within the framework of the Commission’s Committee on Immigration and Asylum. Through the external study that was commissioned to support the impact assessment, additional consultations of the main stakeholders were undertaken by means of questionnaires and interviews.
Analysis of the contributions received revealed general support for a common EU policy on economic immigration, albeit with important differences in respect of the approach to be followed and in the expected end result. Some elements emerged, such as the need for EU common rules regulating all immigration for employment or at least the conditions of admission for some key categories of economic immigrants, most notably highly qualified workers and seasonal workers. These two categories were considered vital to EU competitiveness. Another clear request was to propose simple, non-bureaucratic and flexible solutions. As many Member States were not in favour of a horizontal approach, the Commission considered that a sectoral approach was more appropriate as it would respond better to the requests for flexibility.
- Collection and use of expertise
There was no need for external expertise.
- Impact assessment
The following options were considered:
Option 1 — Status quo . Current developments in Member States and at EU level would continue within the existing legal framework. Employers will be under certain obligations resulting from the Directive on employer sanctions adopted on 18 June 2009, namely as regards notifications to authorities and penalties in the case of illegal employment. The effect of this option would be limited.
Option 2 — Directive on entry and residence conditions of seasonal workers and rights . Common rules would be established, including the definition of seasonal work, admission criteria, maximum duration of stay as a seasonal worker and provisions on equal treatment with EU national seasonal workers with respect to certain socio-economic rights such as freedom of association, right to social security, etc. This option would help to establish a common legal framework applicable to all employers in the EU and to prevent exploitation. However, seasonal workers would still be faced with diverging and complex procedures for entry.
Option 3 — Directive laying down common admission procedures . In addition to option 2, a single work and residence permit for third-country seasonal workers would be introduced, to be issued in a single procedure. Provisions would be made for facilitating re-entry of a seasonal worker in subsequent seasons. Hiring procedures would be more efficient, and a more predictable workforce would be available for EU employers.
Option 4 — Directive on measures to ensure effective return . Measures would include limitation of the length of stay, and an explicit obligation to return at the end of the period. Overstaying of seasonal workers would be prevented to some extent. Effects on the functioning of the EU labour market would be marginal. Seasonal workers would still be faced with diverging and complex entry procedures.
Option 5 — Communication, coordination and cooperation among Member States. No new legislation would be introduced, but complementary and supporting activities would be undertaken with a view to approximating Member States’ practices. Effects would be limited, as the measures would not be binding; potential seasonal workers and their prospective employers would continue to face an array of different rules for admission and different rights would be granted to seasonal workers during their residence.
Comparing the options and their impacts, the preferred option is a combination of options 2, 3 and 4. Common admission standards with simplified entry procedures and the prospect of returning in a subsequent season (options 2 and 3) will provide for flexible admission to endow the EU labour market with the necessary resources. Elements from option 4 should help ensure the return of the seasonal worker and thus prevent overstaying.
The Commission carried out an impact assessment listed in the Work Programme, accessible at [… to be added… ].
- Summary of the proposed action
The proposal establishes a fast-track procedure for the admission of third-country seasonal workers, based on a common definition and common criteria, in particular the existence of a work contract or a binding job offer that specifies a salary equal to or above a minimum level. Seasonal workers will be issued with a residence permit allowing them to work for a specified maximum period per calendar year. Provision is also made for facilitating the re-entry of a seasonal worker in a subsequent season.
In order to prevent exploitation and protect the safety and health of third-country seasonal workers, legal provisions applying to working conditions are clearly defined. Also, employers are required to provide evidence that the seasonal worker will have appropriate accommodation during his/her stay and that provision is made for facilitation of complaints.
To prevent overstaying of third-country seasonal workers, a maximum duration of stay per calendar year is laid down as well as the explicit obligation to return after that period; there is no possibility of status change.
- Legal basis
This proposal concerns conditions of entry and residence, and standards on the issue by Member States of residence permits and the definition of rights of third-country nationals residing legally in a Member State. Consequently, the appropriate legal basis is Article 79(2)(a) and (b) of the Treaty on the Functioning of the European Union.
- Subsidiarity principle
The principle of subsidiarity applies. The principle requires that the Union does not take action in areas of shared competence unless ‘the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level’ (Article 5 i of the Treaty on European Union).
The legitimacy of the EU action in this field derives from the following:
- The need for seasonal workers is a common occurrence in most Member States. In addition, although third-country workers enter a specific Member State within the EU, a Member State’s decision on the rights of third-country nationals could affect other Member States, and possibly cause distortions of migratory flows.
- The Schengen area without internal borders requires a common discipline (common minimum rules) to reduce the risk of overstaying and illegal entries that may be caused by/result from lax and diverse rules on the admission of seasonal workers.
- Exploitation and sub-standard working conditions of third-country seasonal workers need to be overcome by granting certain socio-economic rights in a binding, and thus enforceable, EU-level instrument. This is in line with the call made by the 1999 Tampere European Council for third-country nationals to be granted fair treatment and a secure legal status.
- With respect to the external aspects of migration policy, an EU instrument on seasonal workers is crucial for effective cooperation with third countries and for further deepening of the global approach. This is so for two reasons. First, such an instrument would allow the EU to remove obstacles to legal migration by low/un-skilled workers and, second, it may prove instrumental in strengthening the commitment of third countries to tackling irregular immigration.
It follows that the present proposal complies with the principle of subsidiarity.
Furthermore, in accordance with Article 79 i of the Treaty on the Functioning of the European Union, the proposal respects the right of the Member States to determine the numbers of economic migrants coming from third countries to their territory. Thus, it remains up to the respective Member State to assess whether it has an economic need for the admission of third-country seasonal workers.
- Proportionality principle
The principle of proportionality applies. That principle stipulates that ‘the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties’ (Article 5 i of the Treaty on European Union).
The proposal complies with the proportionality principle for the following reasons:
- The instrument chosen is a Directive, which gives Member States a high degree of flexibility in terms of implementation. The form of action does not exceed what is necessary to achieve the aim to regulate seasonal migration flows effectively. Non-binding measures would have too limited an effect as potential third-country seasonal workers and their prospective employers would continue to face an array of different rules for entry and residence and different levels of rights would be granted during the residence.
- The content of the action is limited to what is necessary to achieve the above aim. The proposed rules concern admission conditions, procedure and permit, as well as rights of seasonal workers, that is, the areas that constitute elements of a common immigration policy under Article 79 of the Treaty on the Functioning of the European Union. The proposal constitutes a relatively small change from the status quo in terms of both the legislative action required and the burden on prospective employers. Some Member States may have increased burdens resulting from the need to set up (more) specific rules, but these are justified in view of the objectives of the present proposal and the structural demand for this category of third-country workers. As stated above, it will remain for Member States to determine the volumes of third-country national seasonal workers admitted.
- Choice of instrument
3Proposed instrument: a directive.
A directive is the appropriate instrument for this action as it sets binding minimum standards but, at the same time, gives Member States the necessary flexibility in respect of labour market needs and the existing legal framework.
Contents
- BUDGETARY IMPLICATIONS
- 2. CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT
- 3. LEGAL ASPECTS OF THE PROPOSAL
- 5. ADDITIONAL INFORMATION
- Article 2
- Article 3
- Article 4
- Chapter II: Conditions of admission
- Articles 6 and 7
- Chapter III: Procedure and permit
- Article 9
- Article 10
- Article 11
- Article 12
- Article 13
- Article 14
- Chapter IV: Rights
- Article 16
- Article 17
- Chapter V: Final provisions
THE PROPOSAL HAS NO IMPLICATION s for the EU budget.
- Review clause
The proposal includes a review clause.
- Correlation table
The Member States are required to communicate to the Commission the text of national provisions transposing the Directive as well as a correlation table between those provisions and the Directive.
- Detailed explanation of the proposal
Chapter I: General provisions
Article 1
The purpose of the proposal is to introduce a special procedure for the entry and residence of third-country nationals applying to reside in the EU for seasonal employment, and to define the rights of seasonal workers.
The provisions of the proposal only apply to third-country nationals who reside outside the territory of the Member States. There is no provision for applications for employment as seasonal workers from within a Member State. It is therefore not necessary to provide for exceptions from the scope of the proposal for certain categories of third-country nationals who are legally staying in a Member State.
However, this will not affect the right of third-country nationals who are already legally staying in a Member State to exercise their right to work, including seasonal employment. Such a right will not be exercised under the conditions set out in this proposal.
The proposal does not apply to third-country nationals posted by undertakings established in a Member State in the framework of a provision of services in accordance with Directive 96/71/EC.
The notion of seasonal work is distinguished from regular, permanent work in particular by higher workforce requirements linked to an event or pattern of events, such as the planting or harvesting period in agriculture, or the holiday period in tourism including events, festivals, biennales or long term exhibitions in culture.
Member States may determine specific sectors of the economy that meet the above criteria for seasonal work.
The proposal allows Member States to grant more favourable conditions only in relation to certain specific provisions that concern the procedural safeguards, the level of rights granted to seasonal workers, as well as provisions relating to accommodation and facilitation of complaints.
Article 5
This Article sets out the criteria that a third-country national seasonal worker and his/her employer must fulfil. As the admission is demand-driven, a work contract or a binding job offer must be presented. It was considered necessary to require that the work contract or the binding job offer should specify a level of remuneration in order to allow the competent authorities to assess whether the proposed remuneration is comparable to that paid for the respective activity in the Member State concerned. This is vital in order to avoid an unfair advantage for the employer and exploitative working conditions for the seasonal worker.
The work contract must also specify the working hours per week or month. This requirement should:
- ensure that employers only request third-country seasonal workers in case of real economic need (sufficient employment capacities);
- serve as a guarantee of a certain, fixed level of remuneration for the seasonal workers, and, when applicable, other relevant working conditions such as insurances;
- enable efficient control by the competent authorities before admission.
The application must also include evidence that the respective seasonal worker will benefit from appropriate accommodation.
The proposal does not create a right to admission. These provisions lay down the mandatory and possible grounds for refusal as well as for withdrawal and non-renewal, including non-fulfilment of the admission criteria, the existence of quotas and the possibility for the Member States to carry out a labour market test.
The principle of EU preference, as expressed in the relevant provisions of the Acts of Accession of 2003 and 2005, constitutes EU primary law, and therefore the Directive must be applied in conformity with the Acts of Accession by those Member States that still make use of the transitional arrangements.
Article 8
Member States are required to ensure that the relevant information about conditions of entry and residence, including the rights granted to third-country seasonal workers, and about all the documentary evidence necessary for lodging the application are available to prospective third-country seasonal workers and their employers.
The Member States have to determine whether applications are to be lodged by the third-country national or by his or her prospective employer.
The Member States are also required to designate a competent authority to receive the application and issue the permit. This designation is without prejudice to the role and responsibilities of other national authorities with regard to the examination of and decision on the application. Furthermore, the designation to receive and issue the permit should not prevent Member States from appointing other authorities with which the third-country national or his/her prospective employer can lodge the application (e.g. consular offices) and which have the authority to issue the permit.
The application to reside and work as a seasonal worker must be submitted in a single application procedure.
Third-country nationals for whom a positive decision has been taken by the Member State concerned must receive a seasonal worker permit.
The residence permit with the indication ‘seasonal worker’ must allow both the residence and the exercise of the specific seasonal work authorised, without an additional permit, in particular a work permit, being necessary. Accordingly, for periods of stay below three months, Member States must issue a visa that will also entitle the seasonal worker to exercise the specific employment activity for which he/she was admitted.
The maximum period of stay is set at six months in any calendar year. Such strict limitation of the duration of stay should contribute to ensuring that third-country national workers admitted under this Directive are actually employed for work that is genuinely seasonal and not for regular work.
Explicit provision is made that within the maximum duration of stay an extension of the contract or a change of employer for seasonal work is possible. This is important for the reason that seasonal workers who are tied to a single employer may face the risk of abuses. Also, the possibility to extend the stay within the specified period of time may reduce the risk of overstaying. Finally, extension allows higher earnings and remittances sent by third-country seasonal workers which, in turn, can contribute to the development of their countries of origin.
The purpose of this provision is to promote circular migration of third-country national seasonal workers, that is, their movement between a third country and the EU for temporary stay and work in the latter. Such type of migration will potentially benefit the country of origin, the EU host country and the seasonal worker him/herself. Accordingly, Member States have the choice of either issuing multi-seasonal permits or applying a facilitated procedure. Multi-seasonal permits cover up to three seasons and are thus appropriate for sectors where the labour market needs remain stable over a period of time.
A third-country national who did not comply with the obligations linked to a previous stay as a seasonal worker is to be excluded from admission as a seasonal worker for one or more subsequent years.
An employer who has not fulfilled obligations resulting from the work contract must be subjected to sanctions and excluded from the possibility to apply for seasonal workers for at least one year.
A fast-track procedure (30 days) is provided for examining applications. Procedural guarantees include the possibility of a legal challenge against a decision rejecting an application as well as the requirement for the authorities to give reasons for such decision.
Member States are to require employers of seasonal workers to provide evidence that the seasonal worker will have accommodation ensuring an adequate standard of living. This covers cases where the employer is to provide accommodation and where accommodation is to be provided by a third party.
Article 15
A seasonal worker permit entitles its holder to enter and reside on the territory of the Member State which has issued the permit and to exercise the employment activity authorised by the permit.
This Article defines the working conditions, including pay, dismissal and health and safety requirements at the workplace applicable to seasonal workers in order to ensure legal certainty.
The Article also grants rights to third-country seasonal workers by determining fields where equal treatment with own nationals should be ensured in the form of a minimum requirement without prejudice to the right of Member States to adopt or maintain provisions which are more favourable. Accordingly, equal treatment applies in respect of freedom of association and affiliation and membership of an organisation representing workers.
Equal treatment also applies to social security and covers the benefits defined in Article 3 of Regulation (EC) No 883/04 on the coordination of social security systems. Such provisions are intended to establish common rules within the EU; to recognise that third-country national seasonal workers legally working in a Member State contribute to the European economy through their work and tax payments; and to serve as a safeguard to reduce unfair competition between own nationals and third-country nationals that may result from possible exploitation of the latter.
To make enforcement more effective, complaints mechanisms should be put in place. They should be open not only to third-country seasonal workers, but also to designated third parties. This is so for the reason that evidence suggests that seasonal workers are often either not aware of the existence of such mechanisms or they are hesitant to use them in their own name, as they are afraid of the consequences in terms of future employment possibilities. A comparable provision is laid down in Article 9 i of Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation.
This Chapter regulates the obligations of Member States concerning sharing the relevant statistical data and the information resulting from transposition of the Directive. It also specifies the reporting obligations of the European Commission and stipulates the date on which the Directive enters into force.