ADVISORY COMMITTEE ON FREE MOVEMENT OF WORKERS. Brussels, 24 February 2011

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1 EUROPEAN COMMISSION DG Employment, Social Affairs and Inclusion Employment and Social Legislation, Social Dialogue Free Movement of Workers, Coordination of Social Security Schemes ADVISORY COMMITTEE ON FREE MOVEMENT OF WORKERS Brussels, 24 February Welcome The Chairperson (Commission representative, Mr. Armindo Silva, Director), welcomed the Committee members and explained the language arrangements for the meeting. 2. Adoption of the draft agenda The representative of Business Europe thanked for the inclusion of a point on the recognition of professional qualifications Directive, and asked if it could be dealt with as a point of discussion. The draft agenda was adopted with this change to the order of items. 3. Approval of the draft minutes of the previous meeting The representative of Business Europe indicated that they would send some amendments in writing. 4. Enforceability of Regulation 1612/68: presentation of contributions of the members of the Committee on the basis of the Questionnaire prepared by the Commission A representative of the Commission presents the objectives of the questionnaire that was sent to the members of the Advisory committee on She explains that the Commission is evaluating how Regulation 1612/68 is applied in practice in the Member States and assessing the possibility of adopting further EU initiatives in order to better enforce EU migrant workers' rights. The purpose is not to review the rights that already exist but rather to see how they can be better enforced. The questionnaire seeks to have a first reaction of the stakeholders involved in free movement of workers issues. Representatives of trade unions in Cyprus and Italy expressed their concern about working and living conditions of some EU workers both in Cyprus and in Italy. The representative of Business Europe indicated that there is a potential to increase workers mobility in Europe, which is rather low. However, they think that EU law is sufficiently developed and that there is no need to adopt additional legislation. The removal of obstacles is rather a matter of implementation of EU law at national/regional/local level. More transparency and cooperation between public employment services is needed. She also considered that the EURES network is helpful but it is underused by employers: private 1

2 employment agencies should also be involved. She also referred to the need to increase collaboration and transparency between educational authorities in order to facilitate students' mobility. As regards workers rights, guidance on how to have access to pension rights and taxes would be important. A representative of the German Trade unions made reference to the need to evaluate flexicurity and to the absence of security in employment in a situation of crisis. A representative of Trade unions in Cyprus stressed the need to have better information. He also referred to the need to set up information systems not only in the host country but also in the country of origin of the worker. In his opinion, the Commission should encourage and financially support the adoption of exchange of information programmes. A representative of the French trade unions suggested that mobility of certain categories of workers (e.g. sector-specialised workers) could be promoted but stressed the fact that mobility does not create employment. She also made reference to the posting of workers and suggested that discussions should also include the new proposal on this topic. A representative of the Finnish trade unions indicated that it would be also important to include in the discussion aspects related to social security benefits and therefore involve the Advisory committee on social security. The representative of the Austrian government referred to the need to discuss at European level issues such as social security, social assistance, posting of workers and social dumping. A representative of the trade unions in Luxembourg underlined that some of the issues to which reference had been made by previous speakers are out of the scope of the Regulation 1612/68. In his opinion, Regulation 1612/68 is still needed, as direct discriminations are less and less frequent but indirect discriminations are more and more applied. He referred also to problems of access to posts in the public sector which are not covered by the exception of article 45.4 TFEU and underlined that more information on the rights of EU migrant workers is indeed needed. The representative of the Danish government considered that there are important issues that should be looked at, such as social advantages, for which there is no coordination at EU level, and tax issues. He indicated that more information is needed, rather than adopting a new legal instrument. A representative of the trade unions in Hungary mentioned that it is important to talk about social dumping, as certain restrictions to free movement are applied due to the fear to social dumping. The representative of the German government expressed the view that there may be discriminations in practice but the legal instruments already exist. There is no need to have a new legal instrument; it is rather a question of raising awareness. A representative of the German trade union agreed that there is no need to have new legislation, as problems in practice have a different nature. In this context, he made reference to bureaucratic obstacles. 2

3 The representative of the Greek government shared the view expressed by previous speakers on the need to reinforce information, as in her opinion Regulation 1612 is not sufficiently well known. A representative of the German trade Unions mentioned that Regulation 1612/68 does not play a major role in practice; there are other legal instruments which are more powerful, such as the anti-discrimination legislation. The representative of Poland considered that there is no need to amend or change Regulation 1612/68 but rather to provide better information. A representative of the Irish trade unions referred to difficulties in mobility because of family and financial resources and stressed the need to better assist people in applying for jobs before moving. Providing practical information about moving would be also important. The representative of the trade unions in Luxembourg suggested that a conference or a seminar should e organised in order to explain the content of Regulation 1612/68 The representative of the Commission (M. Silva) closed this point of the agenda by stressing that the Commission wants to have a clear overview of the problems of application of Regulation 1612/68. He therefore encouraged those delegations that had not yet sent their replies to the questionnaire to do so, and agreed to extend the deadline until He also announced that the Commission was planning to launch a public consultation on this issue, and that members of the committee would be given the possibility to participate. 5. Follow-up of the Opinion adopted in June 2009 by the Committee: the return of migrant workers to their countries of origin Study on Return Migration, prepared by the Research European Mobility Laboratory Terry Ward, Director of Alphametrics/Applica gave a presentation of the conclusions of a study on Return Migration, prepared by the Research European Mobility Laboratory. This analysis, which has been done largely through case studies Poland, Romania, Hungary and Slovakia, examines the scale of migration flows from Central and Eastern European countries (EU12) which entered the EU in 2004 and 2007 to EU15; the extent of return migration in response to recession in EU15 countries; and the characteristics of people concerned in each case particularly age, sex and education levels. It takes into account the policies implemented in both EU15 and EU12 countries in response to return migration. The representative of the Bulgarian government said that it is true that there are a lot of Bulgarian workers in Spain and Greece, as stated in the presentation, but there are not so many in Italy. He stressed that these workers might indeed be low qualified in Greece, where they work as seasonal workers, but that this is not the case for those working in Spain, United Kingdom and Germany as they are generally highly qualified. The Commission representative asked whether there are studies available in support of these statements. The representative of the Bulgarian government indicated that they base these indications on the observations gathered by the Embassies in the respective Member States. 3

4 The representative of the Romanian employers explained that high qualified Romanian workers usually resort to private agencies, as they offer long term secured contracts. She indicated that for the period Romanian employers faced a lack of personnel, especially of high qualified personnel, the reason of it being not the search of a better job but for better salaries. She stressed that in 2007 Romania became destination of immigrants of Asian origin, mainly for the contraction and industry sectors. She commented that seasonal workers constitute an important work force in Romania as a consequence of the governmental plan to solve social problems, as the situation of women. She indicated that these workforces tend to remain in the destination countries. She also indicated that Romanian workers in the UK are mainly women, working in several sectors as nurses, health care, housekeeping, or home care for old people. The representative of the UK trade unions asked for clarification concerning the figures, with regard to the right to employment within nationals as opposed to EU-10 nationals over this period. The representative of the Finish trade unions thanked for this report, which she considered useful from the trade union's perspective. She suggested studying not only the overall statistics, but also to enter also into the different sectors, which the report does not do, as otherwise it is difficult to grasp the issues touching local people. She referred in particular to the construction sector, and especially since 2008, indicating that there is almost a 20 % of unemployment, concerning more than ever the temporary workers. She indicated that very high unemployment has also hit the non professional workers, in the service sector, such as cleaners of restaurant workers, with many workers of Estonian origin, which is not reflected either on the report. She proposed revising some of the conclusions of the report, specially taking into account the consequences deriving from the economic crisis. She also agreed that the difficulty to find jobs by returning migrant workers when coming back requires an additional effort, to match justice and social security. The representative of the Italian trade unions agreed with the remarks made by the representative of the Bulgarian government as regards the limited presence of Bulgarian in Italy. She mentioned some data provided with by Caritas, according to which, there would be a much higher number of Romanians ( ) that of Bulgarians (46.000) in Italy. She stressed that they face problems such as the few rights they have and that they would be being obliged to work in the undeclared economy. She asked if the issue of Eastern European citizens working in the black economy had been looked at. The representative of the Luxemburg trade union stated that he does not share the expression of "circular migration" used in the research, as one thing is free movement of worker and another is immigration from non-eu countries. He asked about the global figures of citizens moving from East to West Europe. He indicated that it should not be forgotten that Romanian and Bulgarians still face difficulties deriving from the existence of the transitional arrangements. The representative of the German government took note of the advantages of migration when moving back home. He mentioned as such, the acquired skills, experience, languages, and asked whether these citizens seek for a higher professional level when arriving to their home countries, or they look to stay at the same professional level as before. 4

5 The representative of Business Europe stressed that there might be the risk that Member States could envisage upon the end of the transitional arrangements to replace them by restrictions of equivalent effect. She indicated that evidence exists that Member States without transitional arrangements have not experienced major disturbance of their labour Market. Terry Ward pointed out that this is a preliminary study based on a limited number of issues, given the scale of migration and the characteristics of the variables used. He indicated that work will continue and take into account, for instance, the situation after the end of the transitional arrangements, in particular in Germany. As regards the question on the black economy, he indicated that it should be subject of specific research. He clarified that in spite the expression used of migration it dos not cover non EU-countries. He explained that the situation of Bulgarian and Romanian citizens is indeed not identical, and coincided with the precisions that have been stated by different members. He indicated that there is no evidence of a return migration of Romanians from Spain and Italy, which could be explained by a variety of factors, such as the economic situation also in Romania, or the fact that they are eligible for social incomes in the other Member States. He pointed out that a big increase has been noted in the number of Romanians setting up own business in Italy in He commented that the figures on the UK employment situation show that Polish and Slovakian citizens would have moved back home and those workers loosing a job are probably more in the migrants' side that among the national population. This is reflected in the UK rates.. He indicated that a sectoral approach could be envisaged at a later stage of the research, which could also envisage specific situations as in Finland. He pointed out that the report includes also overall figures, but indicated the need to be careful when interpreting them, as there are different kind of connotations deriving for instance from the size of the country that need to be taken into account. As regards the incidence of education and access to the labour market, he explained that there is a big difference between high level education workers, where evidence suggest that upon gaining skills abroad they do try to use them once back home, and low educated workers, where there is little evidence. Voluntary return schemes implemented by the Spanish government Amapola Blasco Marhuenda, Deputy Director General at the Directorate General for the Integration of immigrants of the Spanish Government gave a presentation on the scope and characteristics of the voluntary return schemes implemented by the Spanish government. The representative of the Finish trade unions thanked for the presentation and found this presentation quite interesting. The Commission representative thanked for the presentation, and made a call for expressions of interest of members of the Committee to make presentations on this same topic. 6. Information on the latest developments of the proposal for a directive on seasonal workers (COM(2010) 379 final) and the proposal for a Directive on intracorporate transferees (COM(2010) 378 final) A Commission representative made a state of play of current discussions of these two proposals. She recalled that discussions had stated in September at the Council level, but previously they had taken place mainly at the working party responsible for the migration 5

6 issues, and also at the working party on social issues. She reported that discussions are moving forward, that a rapporteur has already been appointed at the European Parliament, though there is not yet a report, and that discussions are focusing in general on the scope and definitions, and in particular, on the duration of the stay with regard to the seasonal workers, and on the provisions on intra EU mobility for the proposal on ICT. The Chair recalled that this is not the appropriate forum for a formal discussion on these issues but noted the interest expressed by the Members of the Committee. The representative of the Finnish trade unions asked about the benefits of the chosen approach as regards the terms of employment in the ICT proposal, as she considered it would be more natural to align it with the local staff. She asked why current proposal on the same issue does not say all collective agreements should be applied. The representative of the Danish trade unions also asked about the scope of the collective agreements. The Commission representative stressed that two key central issues for both proposals are the level of rights, and the reference point as regards the working conditions. She recalled that the proposal refers to individuals from third countries being sent by foreign companies on temporary basis. She emphasised that on working conditions the applying principle is the equal treatment on comparable situations, and recalled that there is an explicit clause that foresees a more favourable treatment from Member States, as these proposals constitute a minimum approach. The representative of the Austrian government indicated that the ITC proposal entails for a concession to third countries in the framework of the WTO negotiations, without the EU being able to gain according counterparts from the third countries. He emphasised that the ITC proposal provides with a too far going EU internal mobility. The representative of the Austrian employers recalled that wage levels can be lower than those of Member States, and asked if the Commission has information on how the Directive on the single permit is going to move forward. The Commission representative referred that on the single permit Directive the report prepared within the European Parliament had been rejected. She informed that the Parliament is currently preparing a new vote on the issue, and that the two problematic issues had been the existence of additional documents, and the need to prepare a correspondence table by Member States. With regard to negotiations at the WTO, she stated that there are some rules that need to be applied, but there is not the same approach as the one promoted at the GATS, in so far as at GATS they promote liberalisation of services, whereas in the EU there is a need of skilled and temporary migration, so the goal is to make access to the market easier for people with certain skills and qualifications, in order to boost growth in the EU. She also recalled that there is a list of entry and admission conditions that need to be complied with, including, among others, the need to prove a wage level equivalence. The Chair pointed out the possibility to come back to these issues as things develop at the Council and at the Parliament. 6

7 7. Presentation by the Commission on the state of play of the implementation of Directive 2004/38 A Commission representative informed on the progress being done on the implementation of Directive 2004/38. He referred to the structural bilateral discussions with Member States, and that so far discussions have already taken place with 26 out of the 27 MS. He commented that as a result many issues have been clarified. The representative of the German government asked if the Commission could give typical examples of problems encountered when MS implement this Directive, and if there are deviations of the Directive by the national legislation. The representative of the Romanian government announced that the Romanian Ministry of Interior is in the full process of completion of the implementation of the Directive. He asked about the MS against which there are infringements. The Commission representative informed that it is a Commission's policy not to comment on this before the infringement is officially launched, after a decision is taken at the College of Commissioners. He indicated that there are indeed deviations of EU law by national law and that the Commission is seeking to cover these issues in the context of the on-going discussions and follow-ups. He commented that the Commission is in general happy with the reforms already undertaken. He mentioned that some problematic issues relate to the notion of family members as foreseen by this Directive, to Articles 12 and 13 of the Directive on the recognition of the right to reside in case of death, divorce or departure, and on its chapter 6, on the procedural and material safeguards against expulsion. He stressed that the situation is fluid, and that there are still discussions ongoing with MS. 8. Presentation by the Commission on the situation of Roma in the EU Three Commission representatives presented an overview picture of all relevant EU developments on three strands of the issue: the link with the implementation of Directive 2004/38 and the free movement of EU citizens, the integration of Roma of a third country origin, and the interaction of the European Social Fund with Roma. It was stressed that EU law on free movement of EU citizens is neutral as regards ethnicity, and that integration policies of third country nationals are primarily an issue for Member States, but with due respect of fundamental rights and antidiscrimination rules. The representative of the French trade unions thanked for having this item in the agenda. She expressed her surprise with the management of the European Funds with regard to citizens coming from third countries, as she considered that it cannot be justified using the European Fund on refugees for the integration of Roma, and asked for a clarification. She also asked for the situation of European citizens that are not declared in the birth register in their own countries that are descendants of Holocaust victims, and stressed that the Commission could look at this issue from a citizenship point of view. The Chair explained that part of Roma people are EU citizens being consequently entitled to the corresponding European Funds, but there are others coming from non-eu countries that have access to their proper Funds. He stressed that there are no diverging EU funds, as everyone is conceived for different purposes. 7

8 The representative of ETUC thanked for having included this issue in the agenda upon their request. Asked for the links between the different Committees dealing with this issue, and stated that there are contradictions as there are financial means whereas there would not be in her opinion political willingness on the side of some Member States. She enquired on the possibilities to act by the Commission and by social partners, and on what legal solutions should be applied to enforce respect of these rights for Roma people. She also said that a reflection should be undertaken on the best place at EU level where to tackle together the different related questions. The representative of Business Europe thanked for the useful presentations. She considered the exclusion of Roma as a serious matter. According to information given at the employers' group, Roma will be the majority of the Rumanian population moving to another country in the near future, so other problems that need to be dealt with are the employability, and the need to address the raising of the skills level of this group. She added that this group is characterised by a big culture of mobility that needs to be respected, with proper contractual arrangements. She advocated in favour of supporting ESF with regard to young generations through education and training, and improving language skills. The representative of Romanian employers indicated that there are more than two millions Roma in Romania, and she stressed that there is not problem of discrimination, as they have equal access to all advantages.. The problem in her opinion is that they are not stable, that they do not stay in one place for long. She underlined the importance of their leaders, and valued their easiness to learn foreign languages. She emphasised that they have a different way of leaving that needs to be accepted. The representative of Romanian government said that this is a problem of integration, and assured that it is an issue for which Romanian authorities give special importance to. He mentioned that there is a special body dealing with it, the so-called National Agency for Roma, acting, among other lines, implementing projects within the ESF. He commented that there are also special programmes on this, such as the so-called "Caravan programme". A Commission representative clarified the target groups for the European Funds for the integration of third country nationals, i.e., the European Integration Fund, for third country nationals, where no distinction is made on the basis of ethnicity, and the European Refugee Fund for asylum and subsidiary protection. She indicated that these two funds are complementary, and that it is very difficult to distinguish whether the beneficiaries belong to one or other ethnicity as there is a lack of data on this. She emphasised that the beneficiaries are third country nationals, whether Roma or not. She announced that they are currently planning a communication for a new agenda for the integration of third country nationals, with a link to the issue of Roma integration. Another Commission representative responded to questions on the ESF and Roma, to stress that if is underused it does not depend on the Commission, as there is no obligation to use this fund. He indicated that this Fund is being underused, for a variety of reasons changing from one to another Member State, being the main one the lack of administrative capacity, which has been worsened with the economic crisis, due to the need to co-finance these projects. He clarified that projects target social economic integration and not cultural integration, and stressed that priority number one is to start with education. 8

9 Another Commission representative answered to the question of possible legal solutions on the possible situations against free movement of citizens by saying that EU law has direct effect, and referring to the monitoring exercise being undertaken by the Commission and the Member States for a correct implementation of Directive 2004/38. The representative of the French trade unions asked on the situation posed by people borne outside Europe that are not registered in Europe and that cannot prove their EU identity. The representative of ETUC stressed the need that social partners are associated in the project of a new communication on integration. The representative of Romanian government agreed that education should be the priority and mentioned that there are specific education programmes targeting Roma in Romania for education and professional training. A Commission representative clarified that citizens are European citizens by virtue of being national of a Member State, being consequently entitled to all rights attached to EU law, which include among others the right to free movement. He recalled that it is to Member States to issue an ID card or passport to their citizens, and it is their competence to solve eventual problems on this matter. Another Commission representative referred to the existing Fora for regular consultation, which are two, i.e., the network of national contact points for integration, and, on the other side, the European integration forum, for civil society. 9. Network of academics: work programme 2011 and new website Commission representatives informed the Committee on the work in process for 2011 to be carried out by the Network of academics, on the reports and events, as well as on the characteristics of the new revamped website. 10. Recent developments in the Case law of the Court of Justice of the EU A Commission representative informed on two recent rulings, on the case C-162/09, "Lasal", concerning the right of permanent residence, and on the case C-307/09-C-309/09, "Vicoplus" on the interpretation of Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of service and in relation to the application of transitional measures by certain Member States. On case C-307/09-C-309/09, he indicated that the judgement is currently under assessment by the Commission services and that an information note will be sent to the members of the Committee. The representative of the French government stated that it will be useful the note currently being prepared by the Commission as announced at the Technical Committee meeting. 11. Any other business A Commission representative informed the Committee that the CSWD on the public sector is available on the website, and encouraged its consultation and dissemination. He also commented the Commission's Communication on "Developing the European Dimension on 9

10 Sport" (COM (2011)12 final of and of the accompanying Staff Working Document on Sport and Free movement (SEC(2011)66final) of ). The representative of ETUC informed that the CSWD on the public sector will be subject of discussion at the Social Dialogue Committee, adding that the Advisory Committee will be informed of it if need be. She also suggested that a possible topic for a next meeting of this Committee could be an exchange of all the initiatives of relevance for free movement of workers related to the Europe 2020 strategy, as the Youth on the Move initiative. She mentioned that they may prepare something on this, perhaps alongside with Business Europe. The Chair took note of this suggestion. A Commission representative informed the Committee on the state of play of the on-going public consultation on Directive 2005/36 on the Recognition of Professional Qualifications. He recalled the scope, principles and functioning of the Directive, summarised the work accomplished in 2010, explained the timetable for 2011/2012, and referred to the main issues of the consultation, recalling that the deadline for responses to the consultation is the 15th March The representative of Business Europe asked information about the on-going discussions at the European Parliament, and if is true that there are proposals in favour of a new legislation on the issue. She indicated that it may be premature to suggest new legislation, and that the principle of subsidiarity need to be taken into account. She stated that the Commission should clearly recognised that it is up to the companies and public employers to take a decision on possible further education and training of their employees with regard to their personal development, which also needs to take into account the current financial constraints. She stressed that they accept the share responsibility of employers and employees. She asked more information about the coexistence of the professional qualification Directive with the European qualification framework, and suggested that a point is dedicated at the next meeting to explain in particular how this system coexists. The representative of ETUC indicated that the approach to the issue is characterised by its flexibility. She stressed that non-recognition of qualifications is the main obstacle to mobility, and that this was clearly stated in the European Year She said that a reference should be included on the work done by EURES. She asked to which extent are social partners being consulted on the whole process. She mentioned that another important issued to be considered is the recognition of professional experience, and referred to the framework agreements that exist since 2002, agreed at EU level including social partners as a necessary means for financing actions such as vocational training. The representative of the French trade unions thanked for the presentation. She indicated that there could be contradictions that need to be tackled. She stressed that there is a market based approach, and that there is a need for a framework, for a common language and common criteria. She asked why there are only five languages in the context of the public consultation, none of them corresponding to the new Member States since The representative of the Cyprus trade unions stressed that he would have valued to see how the Commission and the social partners could harmonise the professional qualifications. He asked if the recognition of professional qualifications refers only to the recognition of 10

11 qualifications at management level or for all. He emphasised the need to extend recognition to other areas, and refer to current projects in Cyprus along these lines. The Commission representative mentioned that many meetings and contacts have been held with social partners, and that all the sectoral Committees, as the one on social dialogue, or the one involving consumers are also appropriate to do so. He indicated that EURES in this field is an element that should be explored further. He explained that the European Parliament wants to produce an implementing report on this Directive, though he still does not know who the reporter will be, or the foreseen date. He mentioned that for the time being there is at the Parliament a Steering Group working on this topic, and said that it appears to be a high priority for the Parliament. He said that there is a need for a perspective when dealing with this issue, taking into account the foreseen demographic developments. He mentioned that the scenario for 2020 foresees a declining working population, with six million people less, with shortages in fields such as doctors or engineers, and outlined the need to tackle the issue without leaving it for the markets. He explained that there is a need to be careful when saying that there is a market oriented approach, as what it is wanted is qualified professions. He apologised for having the publication only in five languages, but that was a decision taken by DG Translation after negotiations. He also said that the situation in Cyprus is particularly problematic in the fields of real state and engineers. The representative of Business Europe asked if this presentation could be given to the members, and indicated that they would have liked to attend the public hearing on this issue. The Commission representative clarified that it was consulted on their website, and that they had contacted without success Business Europe. The Chair recalled that it is still possible to submit comments in writing in the framework of this consultation. The representative of the French trade unions asked for confirmation if this Directive concerns exclusively citizens of the European Union The Commission representative answered that there are other specific instruments concerning the non-eu citizens, which is a matter of the remit of DG HOME. -The next meeting of the Advisory Committee will take place on 25 October