POSTING OF WORKERS WHO ARE THIRD COUNTRY
NATIONALS
(19917)
6079/99
COM(99) 3
|
A draft Council Directive concerning the posting of workers who are
third country nationals for the provision of cross-border services
(99/0012(COD)), and a draft Council Directive extending to third
country nationals established within the Community the freedom to
provide cross-border services (99/0013(CNS)).
|
| Legal base: |
(99/0012(COD)): Articles 47(2) and 55 EC; co-decision;
qualified majority voting
(99/0013(CNS)): Article 59 EC; consultation; qualified
majority voting
|
| |
| Department: |
Trade and Industry |
| Basis of consideration:
| Minister's letter (received 28 March 2000)
|
| Previous Committee Report:
| HC 23-viii (1999-2000), paragraph 3 ( 9 February 2000)
|
| To be discussed in Council:
| No date set |
| Committee's assessment:
| Politically important |
| Committee's decision:
| Not cleared; further information requested
|
Background
5.1 These two proposals concern the free
movement of third-country nationals providing services within
the internal market. The first (99/0012) relates to businesses;
the second (99/0013) to self employed third-country nationals.
Both posit the introduction of a uniform "EC service provision
card" which would do away with the need for any other immigration
procedures.
5.2 We have already considered these proposals
three times. On the last occasion, we raised a number of questions
with the Minister for Energy and Competitiveness in Europe at
the Department of Trade and Industry (The Rt. Hon. Helen Liddell).
Most were concerned with the Government's view of the proposals.
The Minister's letter
5.3 The Minister has now responded to all
our questions. In reply to our first, which concerned the value
of the service provision card if the link between it and the removal
of the receiving Member State's immigration or residence requirements
was broken, she says:
"You asked if, in seeking
to amend the proposals the Government saw, as a possible way forward,
the issue of a service provision card as creating a presumption
of entitlement, subject to withdrawal on specified immigration
grounds. Under the UK's suggestion to limit the first proposal
so that the Member States could retain their existing immigration
or residence requirements, the service provision card could still
be used as a means of facilitating the holder's admission. Although
the Vander Elst judgement itself prevents the host Member
States from requiring work permits, even as amended in accordance
with the UK's suggestions the first proposal would go further
than this in the facilitation of the provision of services by
third country nationals. The card would be sufficient evidence
that the holder met the Vander Elst criteria, and was affiliated
to a social security scheme or covered by private insurance, and
no further checks would be needed on the length of time a worker
had been in the sending Member State or how long he or she had
worked for the employer.
"In such circumstances, it would not be necessary
to create a presumption of entitlement. Indeed, if such a presumption
were included, it could be argued that a Title IV legal base may
be required."
5.4 The Minister takes our second and third
questions — which both related to the views of other Member
States — together, saying:
"You asked for clarification
on the reasons for other Member States' support for the UK's suggested
amendment and if the Government still expects support in the light
of the European Parliament's approval of the proposals. We believe
that the support for the UK's amendments is because the proposals,
as currently drafted, would extend EC rights of free movement
to third country nationals and Member States could only refuse
to issue a residence permit to a holder of a service provision
card on the limited grounds of public order, public security and
public health. We still expect some other Member States to share
our concerns at the likely impact on their immigration and/or
residence procedures since the EP amendments, although helpful
in clarifying some of the less well-defined elements of the proposals,
do not address the fundamental issue of immigration and/or residence
procedures."
5.5 In response to our third and fourth
questions, which both related to the second proposal, the Minister
states:
"With regard to the
Government's approach to the second proposal, the Government's
view is as set out in the SEM, that this draft directive is difficult
to separate in its effect from a measure relating to free movement
of those persons as individuals, and could not easily be amended
to remove this difficulty. The recommendation in the RIA is that
the first proposal should be amended.
"It is true that the second proposal is based
on Article 49, which expressly provides for the extension to third
country nationals of the freedom to provide services. However,
the Government considers that it is neither necessary nor permissible
to use those powers to abolish immigration controls on the third
country nationals concerned. Provisions on the entry and residence
of third country nationals would require a Title IV legal base.
It is important that the powers given by Article 49 are not used
to circumvent UK's right to choose whether to opt-in to measures
more properly adopted under Title IV.
"From a legal perspective, it may be possible
to remove the provisions in the second proposal relating to entry
and residence, so that it could be properly based on Article 49.
However, self-employed third country nationals are not covered
by the Vander Elst judgement and, as a matter of policy,
the Government does not consider extending their rights in this
way would be consistent with the present arrangements governing
the movement of self-employed third country nationals between
Member States."
5.6 She responds to our last question as
follows:
"Finally, you ask why
the Council of the Bars and Law Societies of the EU (CCBE) is
concerned about the timing of the proposals. I understand that
the CCBE, in order to contribute to preparations for the new round
of trade liberalisation, GATS 2000, is considering what kind of
régime should be offered to lawyers coming to the EU from
non-EU countries and what kind of access should be sought for
EU lawyers who wish to provide services in countries outside the
EU. The CCBE has said that it considers that the proposed directives
prematurely decide matters which might have made up part of the
EU negotiating position and weaken the possibility of WTO Member
States liberalising their markets. You may however wish to contact
CCBE directly.
"We will, of course, keep the Committee informed
of developments, including those in the area of social security."
Conclusion
5.7 We thank the Minister for her
response. In relation to her answers about the first proposal,
we have the following comments:
i Her answer to our first question is
helpful. While the value of the card (to both third country nationals
and their employers) would certainly be limited if the UK's suggestion
were agreed, we accept that it could still facilitate its holder's
admission to another Member State;
ii We note that the Minister still expects
support from some other Member States for the UK's suggested amendment.
However, she still has not explained specifically why this should
be so. Her use of the phrase "immigration and/or residence
procedures" is confusing — and we ask again whether
it is the impact on their residence procedures
which is of concern to those Member States which have abolished
internal border controls.
5.8 In relation to the second proposal,
we have a number of comments:
i Firstly, we thank the Minister for her
clarification of the Government's intentions (though we consider
that the RIA is misleadingly worded in this respect).
ii As far as the legal base is concerned,
we do not find the Minister's argument easy to follow. It is,
she says, difficult to untangle the effects of the measure on
freedom to provide services (its market access aspects) from its
effects on the free movement of persons as individuals (its immigration
aspects). We agree.
iii She goes on to argue that it is not within
the Council's powers under Article 49 to abolish immigration controls
on third country nationals.
iv It is clear, in our view, that whatever
the Council gives to third country national service providers
established in the Community under the second indent of Article
49 is whatever EC nationals already enjoy under the first indent.
v It must follow that, in the Minister's view,
Article 49, first indent, gives to EC nationals market access
rights which are subject to the exercise by Member States of immigration
controls (subject to such measures as Directive 73/148). We ask
the Minister to explain the basis for her approach to Article
49, bearing in mind a recent dictum of the ECJ[17]
that exclusion of an EC national from the territory of a Member
State
"clearly constitutes an obstacle to the
freedom to provide services recognised in Article 49 of the Treaty,
since it is the very negation of that freedom."
vi The Minister's third point is that adoption
of this measure would circumvent the UK's opt-in in respect of
Title IV. We find this strand of the argument particularly hard
to follow. The Protocol on the application of certain aspects
of Article 7a to the UK makes clear beyond doubt that no measure
adopted under the EC Treaty affects in any way the UK's entitlement
to exercise immigration controls at its internal frontier. That
is the UK opt-out from the immigration aspects of this measure
if adopted. Its opt-in is, as we pointed out in our previous Report,
to decide not to exercise that entitlement.
vii It may be that the Minister's position
is that, whatever may have been the case before the Treaty of
Amsterdam entered into force, it is now confusing and inappropriate
to adopt any measure which relates to the entry and residence
of third country nationals except under Title IV which caters
explicitly both for a UK opt-out and opt- in. If that is the Minister's
position, we have some sympathy for it. We ask the Minister to
explain whether in her view, and if so how, a measure under Title
IV relating to the immigration aspect of provision of services
by third country nationals established in the Community might
be combined with a measure under Article 49, second indent, which
deals with the market access aspects of such provision.
5.9 We thank the Minister for the
information about the position of the CCBE.
5.10 We welcome the Minister's assurance
that she will keep us informed of developments, including those
in the area of social security. We remind her that we would also
like to know the outcome of the Department's consultation process
, and to be notified in good time of the Council meeting at which
the proposals will be considered.
5.11 Meanwhile, we will keep the proposals
under scrutiny.
17 Case C-348/96, Donatella Calfa, paragraph 18, nyr. Back
|
