EUROPEAN COMMISSION Employment, Social Affairs and Equal Opportunities DG Social Protection and Integration Coordination of Social Security Schemes, Free Movement of Workers ADVISORY COMMITTEE ON FREE MOVEMENT OF WORKERS Brussels, 28 October 2010, 10:00-18:00 1. Welcome The Commission representative (Mr. Jackie Morin, Head of Unit), welcomed the Committee members and explained the language arrangements for the meeting. 2. Adoption of the draft agenda The draft agenda was adopted. 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. Presentation by the Commission of the Commission Staff Working Document on Free movement of workers in the public sector A representative of the Commission made a presentation on the upcoming Commission Staff Working Document on "Free movement of workers in the public sector". The aim of this document is to inform citizens, Member States' authorities, social partners and other stakeholders about how the Commission understands the most important specificities of free movement of workers in the public sector (like e.g. posts reserved to nationals; recruitment procedures; recognition of professional experience and seniority for access to posts and for determining working conditions). It supplements the 2010 Communication of 13.07.2010 "Reaffirming the free movement of workers: rights and major developments" by providing more in-depth and additional information on these issues. The Commission Staff Working Document takes into account the findings of the Report "Free Movement of European Union Citizens and Employment in the Public Sector" which Prof. Ziller made for the Commission and which has already been presented and discussed in the last meeting of the Advisory Committee. The report summarises and analyses the information provided by Member States in their replies to the Commission questionnaire (which was addressed to the members of the Technical Committee) and provided by the Network of Legal Experts. The Commission representative thanked the Member States as nearly all Member States had provided information to the Commission services. It is planned to publish the Commission Staff Working Document in December 2010.
The representative of ETUC considered the study of Prof. Ziller to be very detailed and precise. She was interested in the follow-up of the Commission on this issue. She expressed that ETUC and in particular EPSU (European Federation of Public Service Unions) would also like to follow-up on this topic. The representative of Business Europe was equally interested in the follow-up of the Commission on this issue. She also asked whether the Commission services have analysed whether different categories of workers in the public sector (e.g. teachers, doctors) encounter different obstacles. The representative of the Romanian government expressed his wish to make some comments on the report of Prof. Ziller, but offered to send them in writing. The chairman asked whether the comments were more general or concerned only the Romanian country file. If they were general comments, they would be of interest to all participants. As the Romanian representative expressed that the comments concerned only the Romanian country file it was agreed that the comments were to be sent in writing. The representative of the Commission explained that as follow-up, the Commission will involve different levels and stakeholders to spread the information contained in the Study and the Commission Staff Working Document, and to discuss the issues with those stakeholders. The Commission will also continue its monitoring task. She said that the majority of complaints addressed to the Commission come from teachers, doctors and nurses and that the main problem encountered during the past years was the taking into account of professional experience and seniority for the access to posts and for determining working conditions. The chairman expressed that the aim of the Report of Prof. Ziller and of the Commission Staff Working Document is to recognise that the public sector is important and that mobility in the public sector has some specificities, which developed over the years and were in relation to jurisprudence. The general understanding of this issue shall be improved by spreading the information. The Commission will also be vigilant that the EU rules in this field are respected. He expressed the openness of the Commission to further discuss this issue with the Member States (e.g. in the EUPAN European Public Administration Network) and with stakeholders of different sectors (e.g. in the framework of the social dialogue). Finally he asked the representatives of Member States to send eventual comments on the country files of the Report of Prof. Ziller until the end of November and the Commission would then consider in what manner the comments could be taken into account. 5. Follow-up of the opinion adopted in June 2009 by the Advisory Committee on freedom of movement of workers The chairman recalled that the Opinion adopted by the Committee in 2009 ('Reaffirming the fundamental principle of free movement of workers and setting the priorities for the future activities of the Committee') had identified three different fields of activities for the future work of the Committee: 1) actions undertaken in order to raise awareness about EU citizens' rights in the field of free movement of workers, 2) exploring the conditions and challenges which could contribute to the ending of transitional 2
arrangements and 3) analysing the new challenges in the area of free movement of workers including the question of the return of migrant workers to their countries of origin. He suggested to focus on the first field of activities and to deal with the other two fields of activities in next meetings. The representative of ETUC welcomed the fact that there was a follow-up to the 2009 Opinion. She expressed her wish that the situation of Roma people be tackled in one of the next meetings, and suggested that the topics of returning migrant workers should also be dealt with in a next meeting. The chairman replied that in this regard, that there were two aspects to consider: one concerned (as this is the case in relation to Roma people) the administrative procedures for expulsion in accordance with Directive 2004/38/EC and the other one concerned the measures adopted by Member States in order to integrate those citizens who have returned to their Member States of origin after an experience abroad. It was this latter issue that was reflected in the Opinion. He further underlined that this Committee could count on more information about the issue of returning migrant workers in the Member States, if there are policies in place which aim to facilitate the administrative procedures and their reinsertion. To this extent, he requested to know whether any of the Committee Members were interested in making presentations on this topic. Workplace Europe: The representative of ETUC made a presentation on the on the "Workplace Europe" project, pointing out the project overview and its preliminary outcomes. She indicated that the general objectives of this project have been to gather information about trade union activities to support migrant and mobile workers and their families, increasing their chances and opportunities for access to decent jobs and inclusion and integration in workplaces and host societies; to search for innovative ways of informing, supporting, protecting and organising migrant/mobile workers and their families. The aims are: to help migrant/mobile workers to overcome barriers and obstacles so as to participate fully and equally in labour markets across Europe; to inform trade unions across Europe about good practices and to take up similar actions and activities in other countries/sectors; as well as to develop good practice models that can be disseminated and duplicated throughout Europe. She also referred to the Conference that had taken place in Brussels on 27-28 October 2010 and noted that the official conclusions were being prepared at present. The representative of Business Europe thanked the representative of ETUC for her presentation and stressed the need to raise awareness of the right of free movement of workers. She pointed out that there might be the risk that the transitional arrangements which would soon expire would be replaced by other restrictions, and so she requested that the Commission remain vigilant to avoid such a situation. The representative of UK trade unions expressed his opinion that this project reflects the changing of the current context and the implications in terms of economic downturn, and stressed the need to combat possible trends towards xenophobia. He recalled that the vacancy notices did not cease to increase at the time of the 2004 inflows. The representative of Luxemburg trade unions indicated that the project was too general, did not go into concrete details, and it was too politically correct. In his opinion, there was the need for a clearer distinction between the problems posed by the free movement 3
of workers and those posed by immigration in general, as each have a different legal basis. He mentioned that there are problems that are common to different Member States, and that a general work inspection would be required in order to make sure that laws are properly applied. The chairman confirmed that the Commission will be vigilant with regard to possible restrictions taking place upon the end of the transitional arrangements. He recalled that the Commission had already underlined the positive effects of enlargement and of mobility in Europe, in times of economic crisis as well, on the occasion of its reports on the assessment of the functioning of transitional arrangements. Report on enforceability of Regulation 1612/68: Elspeth Guild one of the coordinators of the legal Network of experts in the area of Free Movement of Workers made a presentation on the thematic Report on the Enforceability of Regulation 1612/68. The aim of this report was to identify the key issues, strengths and weaknesses of the application of Regulation 1612/68 at national level. The report was established on the basis of questions regarding issues such as: the existence of national legislation covering specifically discrimination on the grounds of nationality, the means of redress/intervention available for workers and trade unions, the burden of proof, the assistance to workers who suffer from discrimination on the grounds of nationality, etc. and concluded that in general, discrimination on the grounds of nationality is not as strongly tackled at national level as are other grounds of discrimination (such as race, ethnic origin or sex). The Chairman explained that the report would be sent to the members of the Committee in order to get their reactions with a view to discussing the issue of enforcement of Regulation 1612/68 in more detail in the next meeting in February 2011. The representatives of ETUC, Business Europe and the UK trade unions welcomed this initiative. Communication on free movement of workers: A representative of the Commission made a presentation on the Communication of the Commission "Reaffirming the free movement of workers: rights and major developments" adopted on 13.07.2010. The aim of this communication is to raise awareness of the rights of EU migrant workers and to update information on the applicable rules in the light of the adopted new legislation and the case-law of the Court of Justice of the European Union. He also presented some specific actions that could be undertaken as a follow-up of this Communication, such as assessing how enforcement can be improved and having a closer look within the Committee at some specific issues (jobseekers, social advantages, residence conditions, specific categories of workers such as seafarers, etc). The representative of ETUC expressed her concern that this document might not be given an appropriate follow-up and stressed the need for the Committee to play a role. She asked the Commission to reinforce cooperation with social partners, and requested information on the Report on Citizenship that was being prepared by the Commission. The representative of Swedish entrepreneurs welcomed the Communication and expressed his view that both this document and the Report on the Enforceability of 4
Regulation 1612/68 are linked and should be discussed together in the next meeting of the Committee. This discussion should give the opportunity to see what measures are to be taken both by Member States and by social partners. The Chairman agreed that both documents were linked and should be taken as a basis to engage a deeper reflexion and discussion in February 2011. The Commission expects that the Committee shall play an active role. Finally, as regards the Report on Citizenship, the Chairman announced that it was adopted on 27.10.2010. 6. Presentation by the Commission on the latest developments of the proposal for a directive on seasonal workers and the proposal for a Directive on intracorporate transferees The representatives of the Commission made a presentation on the state of play of the proposals on intra-corporate transferees (ICTs), and seasonal workers. These proposals address the need to develop an EU immigration policy which takes into account the demographic situation, the need of national labour markets and of economic growth as well as the respect of the equal treatment of third-country nationals who should benefit from comparable rights with EU citizens in line with the Stockholm Programme. In particular, these two proposals try to strike a balance between the need to remove administrative obstacles to enter the EU for immigrants that the EU needs and, at the same time, fight social dumping. The representative of Business Europe welcomed the two proposals and confirmed their relevance for her organisation. However, she criticised the length of the previous period of employment within one group (one year) before the transfer could take place. As regards seasonal workers, she welcomed the absence of the obligation to apply the labour market test but also criticised the length of the maximum duration of the permit (6 months). Finally, she informed that Business Europe recently published a paper on seasonal workers that would be shared among the members of the Committee. The representative of ETUC criticised the sector by sector approach of the Commission which voids the solidarity among workers and does not help to prevent social dumping. She also criticised the choice of the legal base which excludes a formal consultation of the social partners. As regards to the ICTs proposal, she criticised the actual application of the contested principles in the EU posting legislation and finally informed the Committee that social partners requested an audition at the European Parliament. The representative of the Luxemburg trade unions criticised the different equal treatment clauses in the different immigration proposals and the lack of ambitious equal treatment rights for seasonal workers who are particularly exploited, explaining that provisions such as those on accommodation do not really help the situation of seasonal workers. He also criticised the choice of the legal base and the fragmented approach of the Commission in legislating in this domain. Finally, he asked for more time to debate these issues. The representative of Business Europe criticised trade unions for echoing the scepticism against immigration as this does not help the situation of third country nationals. Instead, she advocated clear legal routes for seasonal migration to the EU and a facilitated transfer of intra-corporate transferees. 5
The representative of the Commission recalled that the sector by sector approach is the only one possible given that a single proposal was not adopted in 2001. She underlined the up-coming positive codification exercise announced in the Stockholm Programme for all legislation on third-country nationals. She explained that the legal base is clear and it is the correct one for instruments on admission of third-country nationals in the EU and she furthermore stressed the regular contacts that the Commission kept with social partners during the preparations of the proposal. Finally, she insisted on the ambitious rights that the proposal on ICTs grants and recalled that the text does not apply the principle of the country of origin. The Austrian representative questioned the respect of the principle of subsidiarity in the proposals and the choice of the legal base. He also insisted that this kind of matter must be also discussed by the social question working party at the Council. 7. Recent developments in the Case law of the Court of Justice of the EU A Commission representative recalled two judgments of the Court of Justice of the European Union of 23 February 2010 in cases Ibrahim C-310/08 and Teixeira C-480/08 which were mentioned at the last meeting of this Committee. In these cases, the Court confirmed that the protection given to EU migrant workers and their family members under Regulation 1612/68 and in particular under its Article 12 on access to education of children of EU migrant workers is of direct effect and could not be undermined by any other EU provision regulating access to residence and social rights. Moreover, the Commission representative informed the Committee about a judgment relating to sport of 13 March 2010 in the case Olympique Lyonnais C-325/08 in which the Court stated that Article 45 of the Treaty on the Functioning of the European Union does not preclude a scheme which, in order to attain the objective of encouraging the recruitment and training of young sports players, guarantees compensation to the club which provided the training if, at the end of his training period, a young player signs a professional contract with a club in another Member State, provided that the scheme is suitable to ensure the attainment of that objective and does not go beyond what is necessary to attain it. The Court also clarified that a scheme under which a joueur espoir who signs a professional contract with a club in another Member State at the end of his training period is liable to pay damages calculated in a way which is unrelated to the actual costs of the training, is contrary to EU law on the free movement of workers. 8. Follow-up of the Presentation by the Commission on the results of the Eurobarometer November 2009 with regard to mobility A representative of the Commission complemented the presentation made on this subject at the previous meeting. He stressed that this is an opinion survey, and noted the high level of responses. The representative of ETUC thanked the Commission for this survey, and underlined that it shows that things have not changed substantially. She mentioned that once the existence of a "brain drain" movement was proved, measures had been adopted to tackle it. She questioned whether mobility should be encouraged or not, as in her opinion mobility does not solve the problem of unemployment, which can only be solved by the creation of work. 6
The representative of the French trade unions asked for clarification on the figure that appeared in the survey concerning the percentage of Italian citizens having studied abroad. The chairman recalled that the purpose of this Committee is free movement of workers and the removal of obstacles in order to fully exercise this right, and that promotion of mobility is not in itself a goal of this Committee. He stressed that his interpretation of the figures in the survey reflects the motivation to get a job, more than a motivation for mobility, notwithstanding that there can be other possible interpretations. The representative of the Commission complemented the chairman by insisting that this is a survey on the basis of a limited sample, and that really small percentages should be read prudently. Nevertheless, he added that its general outcome was in reality very much in line with the figures that were already available. On the particular request concerning the Italian citizens having studied abroad, he indicated that it would require a more indepth revision, and that an answer would be prepared in writing. The representative of UK trade unions indicated that other topics, such as the number of people willing to come back to their home countries, or a more in depth look at the motivations behind mobility, should also be the subjects of research. The chairman took note of these comments, and pointed out that perhaps in the future, these topics could be the subject of a new series of questions in future surveys. 9. Follow-up of the consultation on EURES Charter A representative of the Commission recalled the consulting procedure that had taken place and indicated that the Charter had just been signed on 26 October 2010. The representative of ETUC recalled their worries about the possible ending of the Eures partnership, and emphasized the need of it to be sustainable. She enquired about the next stages. The representative of the Commission confirmed that the clause stating that the partnership needs to be self sustainable had disappeared from the final version of the Charter, and that the final agreement reflects the proposal made by the social partners. He explained that there will be a proposal to reform the legal basis of EURES. It would be a new set of legal texts to make EURES an instrument in the context of the Europe 2020 strategy. The representative of the German trade unions thanked the Commission for the acquired commitment, and expressed their satisfaction for the changes introduced with regard to the implementation of measures, and enquired about the possibility of reforming the principle of just keeping 50 % of the budget to be allocated to personal resources. The representative of the Commission explained the justification for having kept this threshold of 50% as a means to guarantee that the services to the citizens are being delivered. He added that this threshold, in principle, does not pose any practical difficulty for the cross-border partnerships. The key issue is that cross border partnerships have to turn towards a project-oriented approach. 7
The representative of ETUC recalled that financing is not a problem for them, as their work consists solely of giving advice to their own affiliates. She stressed that as EURES was an important basic strategic instrument, the current rule on financing worries them, as it could amount to more bureaucracy. The representative of the Commission indicated that discussions on the future functioning would take place in due time, but that his own conviction is that there is a need to show results. He added that there is also a request from the European Parliament emphasizing the need of getting results, and to go beyond the role of just providing information. The goal would be to demonstrate good value for money. The representative of the Finnish trade unions stressed that the key to accomplishing results is monitoring. The representative of the Commission recalled the existing rules to emphasize that the decisions on financing take place upon the analysis of the proposals submitted and that the fact of having previously received funds is not a guarantee for continuing to receive funds. The chairman announced that the Charter would be sent within the next few days. 10. Any other business A representative of the Commission informed the members of the Committee on the various activities being carried out at present by the European Network of free movement of workers, on the specialised seminars and forthcoming annual Conference, as well as on the reports and other news with regard to the fully revamped website on the free movement of workers. A representative of the Commission communicated the state of play of the Commission staff working document on sports. The chairman announced that the reports prepared by the Network on the enforceability of Regulation 1612/68 and on young workers would be sent in the coming days, as well as the EURES Charter. He invited the members of the Committee to send to the Commission any expressions of interest for possible future topics to be dealt with at the Committee. The next meeting of the Advisory Committee will take place on 24 February 2011. 8