FREE MOVEMENT OF WORKERS
(19478)
12122/98
COM(98) 394
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Proposals to implement measures in the action plan for the free movement of workers.
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| Legal base:
| Proposals 1 and 2 — Article 40 EC; co-decision; qualified majority voting
Proposal 3 — Articles 40,42 and 308 EC; co-decision; unanimity
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| Department: |
Education and Employment |
| Basis of consideration:
| Minister's letter of 25 November 1999
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| Previous Committee Report:
| HC 34-iv (1998-99), paragraph 1 (16 December 1998)
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| To be discussed in Council:
| No date set |
| Committee's assessment:
| Legally and politically important
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| Committee's decision:
| Cleared |
Background
5.1 These proposals aim to amend the EU's
existing legislative instruments applying to the free movement
of workers to bring the texts into line with the case law of the
European Court of Justice (ECJ), to reflect societal change and
to be "a starting point for a much needed and detailed review
of how the citizens of the Community and their families can be
treated more uniformly in the Member States". When we first
considered them in December 1998, we concluded that the amendments
which the Commission proposed had societal and political significance
as well as practical and financial implications. We also identified
a number of legal questions on which we sought clarification of
the Minister's position.
5.2 Our intention at the time was to invite
the Minister to give oral evidence to us about the document and
the Government's views, once we had received a written response
to our legal questions. In the event, we did not proceed with
an evidence session as we learned that the German Presidency did
not plan to take the proposals forward. We still expected answers
to the legal questions, however. These have now (after 11 months)
been received.
The Minister's letter
5.3 The current Minister for Employment,
Welfare to Work and Equal Opportunities at the Department for
Education and Employment (The Rt. Hon. Tessa Jowell) opens by
saying:
"I am sorry it has taken
so long to respond to these questions. Although my Department
has overall responsibility for policy on the free movement of
workers it is an area of activity which necessarily impinges on
the responsibilities of other Government Departments . In this
instance it has been necessary to involve both the Department
of Social Security and the Home Office as the issues raised fell
into their areas of responsibility. I am setting out in this letter
the Government's response to your Committee's questions."
5.4 The Minister then addresses each of
our questions[28]
in detail, as follows:
- Non-Discrimination Clause
"The Committee asked
my predecessor to explain in greater detail why the non-discrimination
clause could have the effect of unmarried and same-sex partners
receiving equivalent recognition to spouses.
"The Committee is of
course correct in pointing out that the current case-law of the
ECJ does not require rights which are given to married couples
to be extended to unmarried couples. However, the amendment would
prohibit discrimination on the grounds of sexual orientation.
Although this is capable of being read narrowly, so that rights
for same sex couples would only be required in circumstances where
national legislation gave rights to unmarried couples, there is
a possibility that the proposed Article 1a could be read much
wider. Homosexual couples do not have the right to marry in the
UK, and in many other Member States .There is, therefore some
possibility of the argument being advanced that rights which were
only extended to married couples necessarily discriminated against
homosexual couples, none of whom could marry in the UK even if
they wished to. There is also a possibility of claims for recognition
of their status on the part of homosexual couples who were entitled
to marry in other Member States and had done so before coming
to the UK. It is not the Government's expectation that the new
clause would be read this widely, but I am advised that there
is a real possibility of its being interpreted in this way.
"Indeed, the fact that new Article 1a is drafted
in such general terms and with no apparent exceptions creates
a substantial degree of uncertainty about its effects which greatly
concerns the Government, particularly since it would be included
in a regulation and thus be directly applicable. This Article
should be contrasted with the approach taken in the Posted Workers
Directive, where it is clear that only the non-discrimination
provisions which apply in national legislation would be extended
to migrant workers —
'Member States shall ensure that, whatever the law
applicable to the employment relationship, the undertakings referred
to in Article 1 guarantee workers posted to their territory the
terms and conditions of employment covering the following matters
which, in the Member State where the work is carried out, are
laid down:
- by law, regulation or administrative provision¼.
( g ) equality of treatment between men and women and other provisions
on non-discrimination'
"In summary, the Government
considers Article 1a which is drafted as a stand-alone right to
be wholly inappropriate.
"The Committee has also asked whether the Government
considers that Article 49 (now Article 40) empowers the Council
to adopt non-discrimination provisions at all. The Government
agrees with the Committee that Article 40 does not empower the
Council to adopt stand-alone provisions of the type set out in
Article 1a. These provisions do not assist free movement of workers:
they seek to alter the anti-discrimination laws in the Member
States. The Government is grateful to the Committee for pointing
out that such provisions ought to be brought forward under Article
13 and entirely agrees with the Committee in this respect. Article
40 is suitable for allowing migrant workers equivalent rights
to those of host state nationals, which is essential if free movement
of workers is to be achieved. The proposed Article 1a goes further
than that, which is a step too far.
"You asked for a justification
of the Government's view that the terms of the amendment would
not require the extended family to be living with the worker in
the Member State and questioned whether this was because the reference
to 'normal' housing had been deleted. You also pointed out that
the Commission have indicated that the amendment is solely to
facilitate family reunification and the basic right of the members
of the family is still to 'install themselves with a worker'.
"Although the Commission
has indicated that its intention is to facilitate family reunification
and that the basic right of family members remains to 'install
themselves with a worker' the proposed amendment to Article 10
of Regulation 1612/68 notably deletes the reference, in paragraph
1(b) , to the requirement that relatives be 'dependent' on the
EC national. Nor in paragraph 1(c), does the requirement for any
other family member who is dependent on the worker or is living
under his roof in the Member State whence he comes (our
emphasis) extend to a dependency in the Member State where Treaty
rights are being exercised.
"The Government remains of the opinion that
the extension of rights of residence beyond the immediate family
goes beyond what is reasonable to encourage free movement and
opens Member States to abuse of immigration controls.
- Family Member Direct Rights
"The Committee queried
whether the Government intends to dispute the legal base of Article
49 (now Article 40) of the proposals to amend 1612/68 on the grounds
that it is difficult to justify conferring rights on third country
nationals on the basis of Article 49.
"The Government agrees with this analysis and
may wish in due course to challenge the legal basis of Article
49 (now Article 40) for such proposals.
"The Committee sought
clarification on their understanding that the proposed amendment
implies the spouse and his or her family and each of the worker's
own relatives resident in the Member State would acquire an independent
right of residence upon divorce.
"The Government agrees
with the Committee's analysis. The drafting does not distinguish
between the family of the worker and the spouse. There is no objective
justification for providing for an independent right of residence
for the family members of the EC worker, since following a divorce
their relationship to the EC worker would have altered. The Government
does not accept that, where a right is advanced in order to facilitate
the free movement of workers, that right should remain where the
link with the EC worker is broken.
"The Government does however provide, under
national law, (paragraph 255, HC 395[29])
for an EC worker and his dependants to obtain settlement (ie.
permanent residence) where they have been issued with a residence
permit or document valid for five years and have remained in the
UK in accordance with their Treaty rights for four years and continue
to do so. In such cases the subsequent divorce would not alter
that settled status.
- Rights On Dissolution Of Marriage
"The Committee queried
whether the Government is absolutely opposed in principle to the
amendment or whether it might support a more diluted proposal
and whether it would be less likely to object to rights of residence
which remained at all times contingent on sufficient resources
being available to the family member.
"The Government would
not rule out provision for the family members on dissolution
of marriage. It could not however accept a provision which was
more generous than the requirement set out in paragraph 255, HC
395 as set out above, which would include a requirement not to
have recourse to public funds. The Government also considers that
it is a matter for consideration as to whether such provision
should rely directly on EC law or could be included in national
legislation, given the removal of any link to free movement rights
for the EC worker.
- New Advisory Committee — Legal Base
"The Committee sought
an explanation of the Government's apparently contradictory approach
to Article 235 (now Article 308) and third country nationals.
It compared our view on the legal base for Community expenditure
on operations contributing to the promotion of human rights, democratic
principles and the rule of law in third countries, with our comments
that we do not accept that Article 235 (now Article 308) can be
used as a complementary legal base for the Community to deal with
matters relating to third country nationals.
"Article 235 (now Article
308) permits the Council to adopt appropriate measures if action
by the Community is necessary to attain the objectives of the
Community, where the Treaty establishing the European Community
("the Treaty") has not provided the necessary powers.
The European Court of Justice described its purpose thus:
'Article 235 (now Article 308) is designed to fill
the gap where no specific provisions of the Treaty confer on the
Community institutions express or implied powers to act, if such
powers appear nonetheless to be necessary to enable the Community
to carry out its functions with a view to attaining one of the
objectives laid down in the Treaty.' (Opinion 2/94).
"It therefore follows that Article 235 (now
Article 308) might properly be used to support both the Article
2 objective of achieving a high level of social protection and
the Article 51 requirement (now Article 42) to facilitate freedom
of movement. We are not, however, satisfied that these Treaty
provisions extend to third country nationals.
"The purpose of Article 51 (now Article 42)
is to enable the Council to adopt such measures in the field of
social security as are necessary to provide freedom of movement
for workers. Third country nationals are not, in principle, entitled
to freedom of movement. The case law of the Court on the purpose
of Article 51 (now Article 42) has emphasised its position within
Title III of the Treaty which provides for free movement of persons,
services and capital. It is clear that the provisions of Title
III relate only to nationals of Member States. Indeed, I think
we are in agreement on this point.
"The Court has held that Article 235 (now Article
308) cannot serve as a basis for widening the scope of Community
powers beyond the general framework created by the provisions
of the Treaty as a whole and, in particular, by those which define
the tasks and the activities of the Community (see Opinion 2/94).
The proposal under consideration seeks to extend the Community
objective of free movement of persons to third country nationals.
As I have explained in the previous paragraph, there is no basis
in the Treaty for such an extension".
5.5 Finally, the Minister tells us that
the majority of Member States appear to share the UK's concerns
about these proposals. On progress, she says:
"Our understanding is that, currently, the proposals
are stalled. Neither the Germans nor the Finns have been prepared
to take them forward during their Presidency of the European Union
this year. There is also no evidence that the Portuguese will
be prepared to progress them when they take over the Presidency
in January 2000".
Conclusion
5.6 While we accept that some delay is
inevitable when other Government departments have to be consulted,
especially when the urgency has faded from proposals, we must
still register dissatisfaction with the length of time taken to
reply to our questions. As a result of the delay, the situation
is now complicated by new developments (such as the draft Directive
on the right to family reunification[30]).
Nonetheless, we are grateful to the Minister for the comprehensive
and frank answers which she has furnished to us.
5.7 Our comments on the response are
as follows:
- Non-discrimination clause
5.8 Our first question related to the
non-discrimination clause which the Government believes could
have the effect of requiring the United Kingdom to extend to homosexual
couples benefits which under UK law are confined to married couples.
Like the Government, we expect the ECJ to prefer a narrower reading;
a homosexual couple subject to a condition which applies to unmarried
heterosexual couples, but not to married couples, has been treated
differently on grounds of marital status and has not been discriminated
against on grounds of sexual orientation. But we recognise that,
because the heterosexual couple could enter into a marriage recognised
in the United Kingdom but the homosexual couple could not, the
contrary argument might conceivably succeed.
5.9 Be that as it may, we note that the
Government agrees with the Committee that provisions which seek
to alter the anti-discrimination laws in the Member States ought
to be brought forward under Article 13 EC and cannot properly
be adopted under Article 40 EC. We shall report shortly on the
Commission's recent proposals for legislation under the former
Article.
5.10 The Government's concern is that
the Commission's proposed amendment to Article 10 of Regulation
612/68 would give any EC national migrant worker the right to
bring with him any third country national whom he considered to
be part of his or his spouse's family, living independently of
him in the United Kingdom and benefiting from the rights accorded
to EC nationals, including the right to work.
5.11 It is not easy to determine the
legislative intention of the Commission's proposal. On the one
hand the right of family members is to install themselves with
an EC national migrant worker and Member States are merely required
to facilitate the admission of family members who do not intend
so to install themselves. That implies that the migrant worker
and those family members he is entitled under the proposal to
bring with him will live under one roof. On the other hand, according
to Article 11 of the proposal, any member of the family covered
by Article 10 has the right to take up activities as an employed
or self-employed person in the host Member State, and may thus
become economically independent of the EC national migrant worker.
5.12 We agree with the Government that
an extension of rights of residence, coupled with a right to pursue
economic activities, which goes beyond the immediate family is
more than can be reasonably required to encourage free movement
of workers. In this context, we are interested to note that, in
the draft Directive on the right to family reunification,
there is a tighter definition of family members eligible for reunification
and (perhaps as a result) the Government is unhappy that not all
have access to employment and vocational training.
- Family member direct rights
5.13 We note that the Government agrees
with our analysis here.
- Dissolution of marriage and rights on dissolution
5.14 We agree with the Government that
the proposal, as drafted, goes too far; in particular, it appears
to give to third country nationals who are members of the family
of the EC migrant worker himself permanent rights of residence
if his marriage to his third country national spouse is dissolved,
a provision which lacks any obvious logic. We note however that
the Government would not rule out provision for family members
on the lines of existing UK law under which dependants of an EC
worker who have been issued with a residence permit or document
valid for five years and have remained in the UK in accordance
with their Treaty rights for four years and continue to do so
are entitled to obtain permanent residence.
5.15 In this context, it is again interesting
to note the somewhat different provisions in the draft Directive
on the right to family reunification. Here, on the dissolution
of a marriage, family members may apply for an autonomous residence
permit if they have been resident for at least one year. (The
Government does not support these provisions.)
- New advisory committee — legal base
5.16 We asked the Government to explain
its view that Article 308 EC cannot be used as a complementary
legal base to enable a reconstituted advisory committee to deal
with matters relating to third country nationals. We agree with
the Government (as indeed does the Commission) that Article 42
(which enables the Council to adopt such measures in the field
of social security as are necessary to provide freedom of movement
for workers) does not permit the adoption of measures facilitating
the free movement of third country nationals. As the Commission
also acknowledges, Article 40 EC is similarly limited. But the
Minister does not explain why such Community objectives as promoting
a high level of employment and of social protection and establishing
an internal market characterised by the abolition of obstacles
to the free movement of persons should exclude from their scope
third country nationals and thus should not authorise extension
of legislation made under Article 308 to third country nationals
in order to attain those objectives.
5.17 We note that the proposals are stalled
and that they are unlikely to be discussed during the Portuguese
Presidency. In these circumstances, we clear the document but
ask the Minister to provide us with an up-to-date Explanatory
Memorandum on these proposals, taking into account the points
made in this paragraph, whenever it returns to the Council's agenda.
28 HC 34-iv (1998-99), paragraph 1 (16 December 1998). Back
29 Statement
of Changes in Immigration Rules, laid before Parliament on 23
May 1994, HC 395 of Session 1993-94. Back
30 See
paragraph 3. Back
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