EU PREFERENCE & RECRUITMENT OF THIRD COUNTRY WORKERS

Philippe DE BRUYCKER Migration Policy Centre

European University Institute

RESEARCH QUESTIONS

• What is the legal basis of that principle? • How does it work legally AND in practice?

– Normally in States employer needs (work) permit delivered after Labour Market Test to recruit TCN

– How to do this in an EU with 27 MS: State or EU level? • No studies except:

– Excellent French PhD but outdated (1994) – Dutch book on history of FMW (2005):

requirement of Italy but MS have problems with it, including Italy!

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0. MULTIPLE LEGAL BASES IN EU LAW

• Enlargement treaties (Bulgaria & Romania till 2014 & Croatia from 2013 till 2020):

“…the MS shall, during any period when national measures are applied, give preference to workers who are nationals of the MS over workers who are nationals of third countries as regard access to their labour market” (point 14 of annex VI to accession act of Bulgaria)

• Must be respected in all cases (primary law) for the benefit of (all?) EU workers over (all?) TCN but limited to successive transition periods of 7 years

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0. MULTIPLE LEGAL BASES IN EU LAW

• Immigration (& asylum) directives with provisions in: – Long-term resident (2003/109) – “Blue card” for highly skilled (2009/50) – Single permit & common rights (2011/98) – Reception conditions for asylum seekers (2003/9) – Proposal on seasonal employment

• but NOT be respected in all cases: – for instance not foreseen in proposal for a directive

on intra-corporate transfer

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0. MULTIPLE LEGAL BASES IN EU LAW

• Example of “Blue Card” directive (art.8, §2, 2nd indent): “MS may examine the situation of their labour market and may verify whether the concerned vacancy could not be filled by:

−national or EU workforce −TCNs lawfully resident in that MS and already

forming part of its labour market by virtue of EU or national law

−long-term residents”

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0. MULTIPLE LEGAL BASES IN EU LAW

• Nota bene: –no hierarchical order between

previous categories –Not only in favour of EU citizens but

also TCN with consolidated right to work

–EU preference is not a national preference

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0. MULTIPLE LEGAL BASES IN EU LAW

• Article 46, (d) TFEU: The EP and Council sets up an “appropriate machinery

• to bring offers of employment into touch with applications for employment &

• to facilitate the achievement of a balance between supply an demand in the employment market”

• Actually a network called Eures

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0. MULTIPLE LEGAL BASES IN EU LAW

Implemented by Regulation 492/2011 (Ex-1612/68) • “any vacancy (within the meaning of article 13)

communicated to the employment service of a MS shall be notified to and processed by the competent employment service of the other MS” (article 14, §1)

• Applications for employment expressing formal wish to work in another MS shall be send “regularly” (article 13, §1) and must get an answer “within a reasonable period, not exceeding one month” (article 14, §2) 7

OUTLINE

1. A KEY PRINCIPLE SURPRISINGLY RELATIVE

2. A PRINCIPLE LEFT TO MEMBER STATES

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1. A RELATIVE PRINCIPLE

“The employment services shall grant workers who are nationals of the MS the same priority as the relevant measures grant to nationals vis-à-vis workers from third countries”

(article 14, §3 of regulation 492/2011)

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1. A RELATIVE PRINCIPLE

• Relativity: –If priority is granted to nationals, it must be granted to EU workers –If priority is not granted to nationals, no priority must be granted to EU

workers: TCN may then be recruited without consideration for availability of EU workers

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1. A RELATIVE PRINCIPLE

• The principle entails other limitations: 1. “vacancy within the meaning of article 13, §1, a)”

refers to those “which could be filled by nationals of other Member States”: all are not notified to other MS! Which ones? Decided by MS and not the EU

2. “communicated to the employment services of a Member State”: only limited number (30 to 40%) because no obligation for employers to recruit through Public Employment Services (PES)

3. no obligation for EU citizens to accept employment in another MS

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1. A RELATIVE PRINCIPLE

CONCLUSIONS: • Preference is not obligation under EU law

(exception: enlargement treaties for transition periods)

• Preference = “may clauses” in directives • EU preference depends on national rules

about delivery of work permits to TCN • Nevertheless preference is generally applied

by most if not all MS, but in different ways

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2. A PRINCIPLE LEFT TO MEMBER STATES

Cooperation between MS & with Commission: • The MS shall designate specialist services to

this end (Central Employment Services – CES) • If authorised by CES, Regional ES shall directly

bring together and clear vacancies & applications

• European Coordination Office in DG EMPL for promoting vacancy clearance & assisting National ES

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2. A PRINCIPLE LEFT TO MEMBER STATES

• SEDOC created in 1972: “Système Européen de Diffusion des Offres et demandes d’emploi en Compensation internationale”

• “Rarely-used tool & limited success” because: – vacancies had to be sent 1 by 1 through telex – not enough known by potential users – was only applicable to “vacancies not satisfied by

workers of the national labour market” – launch at beginning of period of recession(?) (source of quotations: Eures’ story so far, Commission 2009)

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2. A PRINCIPLE LEFT TO MEMBER STATES

• SEDOC replaced in 1993 by EURES: EURopean Employment Services (COM decision of 22/10/93)

• Evolution of system in view of: – New technologies (computers) allowing matching supply &

demand to exchange ALL vacancies & applications of PES – “Integration” in PES of MS: “Euroadvisers work in their

institution which chooses them and determines their numbers and mode of activity (full or part-time)”

(point 4.1.2.) – Improvement of EURES in view of EU enlargement by

Commission decision of 23 December 2002

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2. A PRINCIPLE LEFT TO MEMBER STATES

• Figures per year: – 1,3M vacancies and 1,1M applicants – 31.000 employers – 150.000 placements – Network of 850 Eures (but national) advisers in MS

• « EURES has not yet realised its full potential » (COM SWD(2012)100, p.5)

• “The EURES portal should be developed in true European placement & recruitment tool”

(Compact for growth and jobs adopted by European Council on 28/29 June 2012)

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2. A PRINCIPLE LEFT TO MEMBER STATES

• Reform of Eures by Commission Decision of 26 November 2012:

– more user-friendly internet portal – appointment of national coordinators for each MS – Involve public & private actors as Associate

Partners after abolishment of monopolies – inclusion of apprenticeships and traineeships – support targeted mobility activities, like young

workers (Your first Eures job but without Greece…)

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CONCLUSIONS

• EU Preference relies on LMT made of exchanges of vacancies and applications through EURES

• Goal: freedom of movement or employment policy?

• Weak institutional framework with power for MS • Fear by MS against European preference:

– risk of cumbersome procedures for employers – too much management of labour market by

State

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CONCLUSIONS

• Question: is EURES an enough robust LMT?

• Challenge: how to better implement EU preference IN PRACTICE?

• Kind of contradictory need of a LMT with EU scope but done at MS level

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CONCLUSIONS RESEARCH PROPOSAL: how are LMTs done by MS & how can they acquire better EU scope (through Eures)? • WHO?

– Labour and not (only) immigration services of MS – With more or less cooperation of employers

• HOW? – List of occupations with pre-assessed shortages and/or – case by case approach to check availability of (suitable)

applicants • DEADLINE? More or less short procedure • TECHNICALLY: how to articulate LMT between MS sending and

receiving vacancies or applications?

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CONCLUSIONS

• This research proposal needs cooperation with Commission (DGs Home & Empl) • requires comparative analysis with help of practitioners of as many Member States as possible • Welcome to advisers, colleagues, PhD students and all sponsors • Good return for money because question not studied except Economic Needs Test for service providers under Gats (Mode 4) • See you next year for the follow-up

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