Europaudvalget 2009-10
KOM (2010) 0379 Bilag 2
Reasoned opinion
The Standing Subcommittee on European Union Affairs discussed the Commission
COM (2010) 379 final
for a Directive of the European Parliament and of the
Council on the conditions of entry and residence of third-country nationals for the
purposes of seasonal employment (34897/EU XXIV. GP) in a public session on
14 September 2010 and comes to the following conclusion:
A. Opinion
The proposal is not compatible with the principal of subsidiarity.
B. Reasons
The European Commission presented its proposal for a Directive on 13 July
2010. Its aim is to standardise the procedure for admitting seasonal workers and to
define minimum standards that must be met when employing such workers so as to
prevent exploitation, drifting into illegality, social dumping and distortions of
In its discussion of subsidiarity, the Commission presents four reasons why
the Member States cannot adequately achieve these welcome aims. However,
none of these reasons make the proposal compatible with the subsidiarity
The Commission states initially that the decision of a Member State regarding
seasonal workers from third countries could cause distortions of migratory flows
throughout Europe. This may be countered by pointing out that according to article
79 paragraph 5 of the Treaty on the functioning of the European Union the Member
States themselves are responsible for determining the volumes of admission of
third-country nationals. The admission procedure is not therefore a transborder
problem that can be solved only by harmonising measures at the European level.
The Commission further states that the Schengen area requires such rules.
However, the existence of the Schengen area alone does not in any way
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overextend the Member States. Otherwise this argument is identical with the one
regarding distortion of migratory flows.
The Commission claims that there is a need to define uniform minimum
standards at the European level to protect against social dumping. Although
protection against social dumping is an important aim that should be given
increased attention in all European Union measures, in this specific case there is
once again no transborder problem. Every Member States may at its own
discretion grant seasonal workers the same rights as their own nationals. Austria
has done this and thus prevented the exploitation of seasonal workers through
wage and social dumping. Moreover, the minimum rights for seasonal workers
suggested in the proposal are so low that the possibility of exploitation through
wage and social dumping remains. This is also to be seen in the context of the
provision on the use of collective agreements (argument: “generally binding”)
which, in the light of the judicature of the European Court of Justice, is extremely
unclear and unsatisfactory. It must therefore be ensured that collective agreements
in Member States – even if they are not legal and administrative instruments in the
European sense – are applicable to seasonal workers and the admission
procedure. Only in this way can the full equality of seasonal workers with national
workers continue to be guaranteed. For that reason, the proposal is not conducive
to the achievement of this aim.
Finally, the Commission states that uniform rules would facilitate cooperation
with non-EU states. This is not an adequate argument for compatibility with the
subsidiarity principle. Moreover, the desired effect is clearly disproportionate to the
negative effects.
In this context, the Subcommittee points out that in its statement on the
Stockholm Programme the National Council already clearly rejected the concept of
circular migration on which the present proposal is based. The European
Commission is urged to take greater account of the experience in the application of
this concept and the results of the relevant studies.
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It is not possible to discuss the proposed Directive in detail as part of the
subsidiarity consideration, but it is nevertheless pointed out that the proposal does
not conform to current practice in various ways (e.g. different (framework) deadlines);
it is costly to administer, bureaucratic and inadequate and unclear in places with
regard to sanctions for infringement of labour and employment regulations (e.g.
illegal employment). At all events, it gives the individual Member States too little
scope to allow adequately for national or regional economic and legal peculiarities.
Given the extremely different situations in the individual Member States, no
substantial European added value can therefore be seen or expected.
The proposed Directive on the whole is not likely to help create a better legal
framework for seasonal work by third-country nationals. For the most part it causes
more administrative work and undermines the authority of the Member States to
decide on the access of third-country nationals to the domestic labour market.
10. The proposed Directive also infringes the subsidiarity principle in a formal
sense. Article 5 of Protocol 2 states that any draft legislative act should contain a
detailed statement making it possible to appraise compliance with the principles of
subsidiarity and proportionality. This statement should contain some assessment of
the proposal's financial impact and of its implications for the rules to be put in place
by Member States, including, where necessary, the regional legislation. The reasons
for concluding that a Union objective can be better achieved at Union level should be
substantiated by qualitative and quantitative indicators.
The financial and
administrative burdens for governments, local and regional authorities, economic
operators and citizens should be minimised and commensurate with the object to be
achieved. All of these aspects are absent from the proposed Directive (and in the
working document) or are difficult to identify and without substance.
11. It should be noted finally that the legal basis chosen in the proposal (Article 79
paragraph 2a and 2b of the Treaty on the functioning of the European Union is
inadequate, because these provisions do not provide a basis for decreeing European
rules that have an impact on the national labour markets, an intention explicitly stated
in the proposal.