EN
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EUROPEAN COMMISSION |
Brussels,
COM(2010) 379/3
2010/xxxx (COD)
Proposal 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
{SEC(2010) 887}
{SEC(2010) 888}
EXPLANATORY MEMORANDUM
1. Context
of the proposal
Grounds for and objectives of the proposal
This proposal forms part of the EUs
efforts to develop a comprehensive immigration policy. The Hague Programme of
November 2004 recognised that [l]egal migration will play an important role in
enhancing the knowledge-based economy in Europe, in advancing economic
development, and thus contributing to the implementation of the Lisbon strategy,
and asked the Commission to present a policy plan on legal migration including
admission procedures, capable of responding promptly to fluctuating demands for
migrant labour in the labour market.
The subsequent December 2005 Commission
Communication A Policy Plan on Legal Migration (COM(2005) 669) provided for
the adoption of five legislative proposals on labour immigration, including a
proposal for a directive on the conditions of entry and residence of seasonal
workers, between 2007 and 2009.
The European Pact on Immigration and
Asylum, adopted by the European Council on 15 and 16 October 2008, expresses
the commitment of the European Union and its Member States to conduct a fair,
effective and consistent policy for dealing with the challenges and opportunities
of migration.
The Stockholm Programme adopted by the
Council on 10-11 December 2009 reiterated the Commission and Councils
commitment to implementing the Policy Plan on Legal Migration.
The proposals regarding highly qualified
workers (EU Blue Card) and for a general framework Directive were presented
in October 2007[1]. The Council
adopted the first proposal on 25 May 2009; the second one is currently under
negotiation in the European Parliament and the Council. Both texts exclude
seasonal workers from their scope of application.
The present
proposal responds to the above political mandates and aims to contribute to the
implementation of the EU 2020 Strategy and to effective management of migration
flows for the specific category of seasonal temporary migration. It sets out fair
and transparent rules for entry and residence while, at the same time, it
provides for incentives and safeguards to prevent a temporary stay from
becoming permanent.
General context
EU economies face a structural need for
seasonal work for which labour from within the EU is expected to become less
and less available. As regards future skills shortages in the EU, traditional
sectors will continue to play an important role and the structural need for low-skilled
and low-qualified workers is likely to continue expanding. It should also be
pointed out that there is a more permanent need for unskilled labour within the
EU. It is expected to be increasingly difficult to fill these gaps
with EU national workers, primarily owing to the fact that these workers
consider seasonal work unattractive.
Further, there is significant evidence that
certain third-country seasonal workers face exploitation and sub-standard
working conditions which may threaten their health and safety.
Lastly, sectors of
the economy that are characterised by a strong presence of seasonal workers —
most notably agriculture, horticulture and tourism — are repeatedly
identified as the sectors most prone to work undertaken by third-country
nationals who are staying illegally.
Existing provisions in the area of the proposal
The only existing instrument at EU level
that also addresses conditions for the admission of seasonal workers is the
1994 Council Resolution on limitations on admission of third-country nationals
to the territory of the Member States for employment[2],
adopted under Article K.1 of the Treaty. That resolution includes elements for
a definition of seasonal workers (workers who undertake well-defined jobs,
normally fulfilling a traditional need in the Member State in question). It
also sets the maximum duration of stay at six months in any twelve-month period
and excludes extensions of the stay for a different type of employment.
The
format of a residence permit for third-country nationals is laid down in Regulation
(EC) No 1030/2002, which enables Member States to refer, in a uniform format,
to all other information in particular as to whether or not the person is
permitted to work. The present proposal builds on that Regulation insofar as
it requires Member States to indicate on the uniform format the permission to
work, irrespective of the legal basis for admission.
Consistency with other EU policies and objectives
The provisions in this proposal are
consistent with and supportive of the objectives of the Commission
Communication on promoting decent work for all (COM(2006) 249) and the goals of the EU 2020
Strategy. Setting up swift and flexible admission
procedures and securing a legal status for seasonal workers can act as a
safeguard against exploitation and also protects EU citizens who are seasonal
workers from unfair competition.
With its central focus on eradication of
poverty and achievement of the millennium development goals, the proposal also
complies with the EUs development policy. In particular, its provisions on
circular migration of seasonal workers between the EU and their countries
– seasonal workers will be able to come to a Member State, go back to
their countries and then come again to the Member State – would
facilitate reliable inflows of remittances and transfer of skills and
investment. As this type of migration is temporary, this Directive is not
expected to lead to brain drain in emerging or developing countries.
In respect of the
employment-related rights of third-country seasonal workers, the proposal
complies with the requirement that all EU policies should ensure a high level
of human health protection. It observes the principles recognised by the
Charter of Fundamental Rights of the European Union, with particular regard to
Article 12 on freedom of assembly and association, Article 21(2) on
non-discrimination, Article 31 on fair and just working conditions, Article 34
on social security and social assistance, Article 35 on health care and Article
47 on the right to an effective remedy and to a fair
trial.
2. Consultation
of interested parties and impact assessment
Consultation of interested parties
The Green Paper on the EU approach to
managing economic migration was the subject of a public consultation, which
included a public hearing held on 14 June 2005.
Further consultations were carried out by means of seminars and workshops. Member States were consulted within the framework of the Commissions Committee on Immigration and Asylum. Through the external study that was commissioned to support the impact assessment, additional consultations of the main stakeholders were undertaken by means of questionnaires and interviews.
Analysis of the
contributions received revealed general support for a common EU policy on
economic immigration, albeit with important differences in respect of the
approach to be followed and in the expected end result. Some elements emerged,
such as the need for EU common rules regulating all immigration for employment
or at least the conditions of admission for some key categories of economic
immigrants, most notably highly qualified workers and seasonal workers. These
two categories were considered vital to EU competitiveness. Another clear
request was to propose simple, non-bureaucratic and flexible solutions. As many
Member States were not in favour of a horizontal approach, the Commission
considered that a sectoral approach was more appropriate as it would respond
better to the requests for flexibility.
Collection and use of expertise
There was no need
for external expertise.
Impact assessment
The following options were considered:
Option 1 — Status quo. Current
developments in Member States and at EU level would continue within the
existing legal framework. Employers will be under certain obligations resulting
from the Directive on employer sanctions adopted on 25 May 2009, namely as regards
notifications to authorities and penalties in the case of illegal employment.
The effect of this option would be limited.
Option 2 — Directive on entry and
residence conditions of seasonal workers and rights. Common rules would be
established, including the definition of seasonal work, admission criteria,
maximum duration of stay as a seasonal worker and provisions on equal treatment
with EU national seasonal workers with respect to certain socio-economic rights
such as freedom of association, right to social security, etc. This option
would help to establish a common legal framework applicable to all employers in
the EU and to prevent exploitation. However, seasonal workers would still be
faced with diverging and complex procedures for entry.
Option 3 — Directive laying down
common admission procedures. In addition to option 2, a single work and
residence permit for third-country seasonal workers would be introduced, to be issued
in a single procedure. Provisions would be made for facilitating re-entry of a
seasonal worker in subsequent seasons. Hiring procedures would be more
efficient, and a more predictable workforce would be available for EU
employers.
Option 4 — Directive on measures
to ensure effective return. Measures would include limitation of the length
of stay, and an explicit obligation to return at the end of the period.
Overstaying of seasonal workers would be prevented to some extent. Effects on
the functioning of the EU labour market would be marginal. Seasonal workers
would still be faced with diverging and complex entry procedures.
Option 5 —
Communication, coordination and cooperation among Member States. No new
legislation would be introduced, but complementary and supporting activities
would be undertaken with a view to approximating Member States practices.
Effects would be limited, as the measures would not be binding; potential
seasonal workers and their prospective employers would continue to face an array
of different rules for admission and different rights would be granted to
seasonal workers during their residence.
Comparing
the options and their impacts, the preferred option is a combination of options
2, 3 and 4. Common admission standards with simplified entry procedures and the
prospect of returning in a subsequent season (options 2 and 3) will provide for
flexible admission to endow the EU labour market with the necessary resources.
Elements from option 4 should help ensure the return of the seasonal worker and
thus prevent overstaying.
The Commission
carried out an impact assessment listed in the Work Programme, accessible at [to
be added].
3. Legal
aspects of the proposal
Summary of the proposed action
The proposal establishes a fast-track procedure
for the admission of third-country seasonal workers, based on a common
definition and common criteria, in particular the existence of a work contract
or a binding job offer that specifies a salary equal to or above a minimum
level. Seasonal workers will be issued with a residence permit allowing them to
work for a specified maximum period per calendar year. Provision is also made
for facilitating the re-entry of a seasonal worker in a subsequent season.
In order to prevent exploitation and
protect the safety and health of third-country seasonal workers, legal
provisions applying to working conditions are clearly defined. Also, employers
are required to provide evidence that the seasonal worker will have appropriate
accommodation during his/her stay and that provision is made for facilitation
of complaints.
To prevent
overstaying of third-country seasonal workers, a maximum duration of stay per
calendar year is laid down as well as the explicit obligation to return after
that period; there is no possibility of status change.
Legal basis
This proposal
concerns conditions of entry and residence, and standards on the issue by
Member States of residence permits and the definition of rights of
third-country nationals residing legally in a Member State. Consequently, the
appropriate legal basis is Article 79(2)(a) and (b) of the Treaty on the
Functioning of the European Union.
Subsidiarity principle
The principle of subsidiarity applies. The
principle requires that the Union does not take action in areas of shared
competence unless the objectives of the proposed action cannot be sufficiently
achieved by the Member States, either at central level or at regional and local
level, but can rather, by reason of the scale or effects of the proposed
action, be better achieved at Union level (Article 5(3) of the Treaty on
European Union).
The legitimacy of the EU action in this
field derives from the following:
– The need for seasonal workers is a common occurrence in most Member
States. In addition, although third-country workers enter a specific Member
State within the EU, a Member States decision on the rights of third-country
nationals could affect other Member States, and possibly cause distortions of
migratory flows.
– The Schengen area without internal borders requires a common
discipline (common minimum rules) to reduce the risk of overstaying and illegal
entries that may be caused by/result from lax and diverse rules on the
admission of seasonal workers.
– Exploitation and sub-standard working conditions of third-country
seasonal workers need to be overcome by granting certain socio-economic rights
in a binding, and thus enforceable, EU-level instrument. This is in line with
the call made by the 1999 Tampere European Council for third-country nationals to
be granted fair treatment and a secure legal status.
– With respect to the external aspects of migration policy, an EU
instrument on seasonal workers is crucial for effective cooperation with third
countries and for further deepening of the global approach. This is so for two
reasons. First, such an instrument would allow the EU to remove obstacles to legal
migration by low/un-skilled workers and, second, it may prove instrumental in
strengthening the commitment of third countries to tackling irregular
immigration.
It follows that the present proposal
complies with the principle of subsidiarity.
Furthermore, in
accordance with Article 79(5) of the Treaty on the Functioning of the European
Union, the proposal respects the right of the Member States to determine the
numbers of economic migrants coming from third countries to their territory.
Thus, it remains up to the respective Member State to assess whether it has an
economic need for the admission of third-country seasonal workers.
Proportionality principle
The principle of proportionality applies.
That principle stipulates that the content and form of Union action shall not
exceed what is necessary to achieve the objectives of the Treaties (Article
5(4) of the Treaty on European Union).
The proposal complies with the proportionality principle for the
following reasons:
– The instrument chosen is a Directive, which gives Member States a
high degree of flexibility in terms of implementation. The form of action does
not exceed what is necessary to achieve the aim to regulate seasonal migration
flows effectively. Non-binding measures would have too limited an effect as
potential third-country seasonal workers and their prospective employers would
continue to face an array of different rules for entry and residence and different
levels of rights would be granted during the residence.
– The content of the action is limited to what is necessary to achieve
the above aim. The proposed rules concern admission conditions, procedure and
permit, as well as rights of seasonal workers, that is, the areas that
constitute elements of a common immigration policy under Article 79 of the
Treaty on the Functioning of the European Union. The proposal constitutes a
relatively small change from the status quo in
terms of both the legislative action required and the burden on prospective
employers. Some Member States may have increased burdens resulting from the
need to set up (more) specific rules, but these are justified in view of the
objectives of the present proposal and the structural demand for this category
of third-country workers. As stated above, it will remain for Member States to
determine the volumes of third-country national seasonal workers admitted.
Choice of instrument
3Proposed instrument: a directive.
A directive is the appropriate instrument
for this action as it sets binding minimum standards but, at the same time,
gives Member States the necessary flexibility in respect of labour market needs
and the existing legal framework.
4. Budgetary
implications
The proposal has no implications for the EU
budget.
5. Additional
information
Review clause
The proposal includes a review clause.
Correlation table
The Member States are required to
communicate to the Commission the text of national provisions transposing the
Directive as well as a correlation table between those provisions and the
Directive.
Detailed explanation of the proposal
Chapter I: General provisions
Article 1
The purpose of the proposal is to introduce
a special procedure for the entry and residence of third-country nationals
applying to reside in the EU for seasonal employment, and to define the rights
of seasonal workers.
Article 2
The provisions of the proposal only apply
to third-country nationals who reside outside the territory of the Member
States. There is no provision for applications for employment as seasonal
workers from within a Member State. It is therefore not necessary to provide
for exceptions from the scope of the proposal for certain categories of
third-country nationals who are legally staying in a Member State.
However, this will not affect the right of
third-country nationals who are already legally staying in a Member State to
exercise their right to work, including seasonal employment. Such a right will not
be exercised under the conditions set out in this proposal.
The proposal does not apply to
third-country nationals posted by undertakings established in a Member State in
the framework of a provision of services in accordance with Directive 96/71/EC.
Article 3
The notion of seasonal work is distinguished
from regular, permanent work in particular by higher workforce requirements
linked to an event or pattern of events, such as the planting or harvesting
period in agriculture, or the holiday period in tourism including
events, festivals, biennales or long term exhibitions in culture.
. Member States may determine specific
sectors of the economy that meet the above criteria for seasonal work.
Article 4
The proposal allows Member States to grant
more favourable conditions only in relation to certain specific provisions that
concern the procedural safeguards, the level of rights granted to seasonal
workers, as well as provisions relating to accommodation and facilitation of
complaints.
Chapter II: Conditions of admission
Article 5
This Article sets out the criteria that a
third-country national seasonal worker and his/her employer must fulfil. As the
admission is demand-driven, a work contract or a binding job offer must be
presented. It was considered necessary to require that the work contract or the
binding job offer should specify a level of remuneration in order to allow the
competent authorities to assess whether the proposed remuneration is comparable
to that paid for the respective activity in the Member State concerned. This is
vital in order to avoid an unfair advantage for the employer and exploitative
working conditions for the seasonal worker.
The work contract must also specify the
working hours per week or month. This requirement should:
– ensure that employers only request third-country seasonal workers in
case of real economic need (sufficient employment capacities);
– serve as a guarantee of a certain, fixed level of remuneration for
the seasonal workers, and, when applicable, other relevant working conditions
such as insurances;
– enable efficient control by the competent authorities before
admission.
– the application must also include evidence that the respective
seasonal worker will benefit from appropriate accommodation.
Articles 6 and 7
The proposal does not create a right to
admission. These provisions lay down the mandatory and possible grounds for
refusal as well as for withdrawal and non-renewal, including non-fulfilment of
the admission criteria, the existence of quotas and the possibility for the
Member States to carry out a labour market test.
Member States remain
entitled to conclude agreements with selected third countries for admission of
seasonal workers (Article 4(1)(b)).
The principle of EU preference, as
expressed in the relevant provisions of the Acts of Accession of 2003 and 2005,
constitutes EU primary law, and therefore the Directive must be applied in
conformity with the Acts of Accession by those Member States that still make
use of the transitional arrangements.
Chapter III: Procedure and permit
Article 8
Member States are required to ensure that
the relevant information about conditions of entry and residence, including the
rights granted to third-country seasonal workers, and about all the documentary
evidence necessary for lodging the application are available to prospective
third-country seasonal workers and their employers.
Article 9
The Member States have to determine whether
applications are to be lodged by the third-country national or by his or her
prospective employer.
The Member States are also required to designate
a competent authority to receive the application and issue the permit. This
designation is without prejudice to the role and responsibilities of other
national authorities with regard to the examination of and decision on the
application. Furthermore, the designation to receive and issue the permit
should not prevent Member States from appointing other authorities with which
the third-country national or his/her prospective employer can lodge the
application (e.g. consular offices) and which have the authority to issue the
permit.
The application to reside and work as a
seasonal worker must be submitted in a single application procedure.
Article 10
Third-country nationals for whom a positive
decision has been taken by the Member State concerned must receive a seasonal
worker permit.
The residence permit with the indication seasonal
worker must allow both the residence and the exercise of the specific seasonal
work authorised, without an additional permit, in particular a work permit,
being necessary. Accordingly, for periods of stay below three months, Member
States must issue a visa that will also entitle the seasonal worker to exercise
the specific employment activity for which he/she was admitted.
Article 11
The maximum period of stay is set at six
months in any calendar year. Such strict limitation of the duration of stay should
contribute to ensuring that third-country national workers admitted under this
Directive are actually employed for work that is genuinely seasonal and not for
regular work.
Explicit provision is made that within the
maximum duration of stay an extension of the contract or a change of employer
for seasonal work is possible. This is important for the reason that seasonal
workers who are tied to a single employer may face the risk of abuses. Also,
the possibility to extend the stay within the specified period of time may
reduce the risk of overstaying. Finally, extension allows higher earnings and
remittances sent by third-country seasonal workers which, in turn, can contribute
to the development of their countries of origin.
Article 12
The purpose of this provision is to promote
circular migration of third-country national seasonal workers, that is, their
movement between a third country and the EU for temporary stay and work in the
latter. Such type of migration will potentially benefit the country of origin,
the EU host country and the seasonal worker him/herself. Accordingly, Member
States have the choice of either issuing multi-seasonal permits or applying a
facilitated procedure. Multi-seasonal permits cover up to three seasons and are
thus appropriate for sectors where the labour market needs remain stable over a
period of time.
A third-country national who did not comply
with the obligations linked to a previous stay as a seasonal worker is to be
excluded from admission as a seasonal worker for one or more subsequent years.
An employer who has not fulfilled
obligations resulting from the work contract must be subjected to sanctions and
excluded from the possibility to apply for seasonal workers for at least one
year.
Article 13
A fast-track procedure (30 days) is
provided for examining applications. Procedural guarantees include the
possibility of a legal challenge against a decision rejecting an application as
well as the requirement for the authorities to give reasons for such decision.
Article 14
Member States are to require employers of
seasonal workers to provide evidence that the seasonal worker will have
accommodation ensuring an adequate standard of living. This covers cases where
the employer is to provide accommodation and where accommodation is to be
provided by a third party.
Chapter IV: Rights
Article 15
A seasonal worker permit entitles its
holder to enter and reside on the territory of the Member State which has
issued the permit and to exercise the employment activity authorised by the
permit.
Article 16
This Article defines the working
conditions, including pay, dismissal and health and safety requirements at the
workplace applicable to seasonal workers in order to ensure legal certainty.
The Article also grants rights to third-country seasonal workers by determining fields where equal treatment with own nationals should be ensured in the form of a minimum requirement without prejudice to the right of Member States to adopt or maintain provisions which are more favourable. Accordingly, equal treatment applies in respect of freedom of association and affiliation and membership of an organisation representing workers.
Equal treatment also applies to social
security and covers the benefits defined in Article 3 of Regulation (EC) No
883/04 on the coordination of social security systems. Such provisions are
intended to establish common rules within the EU; to recognise that
third-country national seasonal workers legally working in a Member States
contribute to the European economy through their work and tax payments; and to
serve as a safeguard to reduce unfair competition between own nationals and
third-country nationals that may result from possible exploitation of the
latter.
Article 17
To make enforcement more
effective, complaints mechanisms should be put in place. They should be open
not only to third-country seasonal workers, but also to designated third
parties. This is so for the reason that evidence suggests that seasonal workers
are often either not aware of the existence of such mechanisms or they are
hesitant to use them in their own name, as they are afraid of the consequences
in terms of future employment possibilities. A comparable provision is laid
down in Article 9(2) of Directive 2000/78/EC establishing a general
framework for equal treatment in employment and occupation.
Chapter V: Final provisions
This Chapter regulates the obligations of Member States concerning
sharing the relevant statistical data and the information resulting from
transposition of the Directive. It also specifies the reporting obligations of
the European Commission and stipulates the date on which the Directive enters
into force.
2010/xxxx (COD)
Proposal 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
THE EUROPEAN PARLIAMENT AND THE
COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning
of the European Union, and in particular Article 79(2)(a) and (b) thereof,
Having regard to the proposal from the European Commission[3],
After transmission of the draft legislative
act to the national Parliaments,
Having regard to the opinion of the
European Economic and Social Committee[4],
Having regard to the opinion of the Committee of the Regions[5],
Acting in accordance with the ordinary
legislative procedure,
Whereas:
(1) For
the gradual establishment of an area of freedom, security and justice, the
Treaty provides for measures to be adopted in the fields of asylum, immigration
and protection of the rights of third-country nationals.
(2) The
Hague Programme, adopted by the European Council on 4 and 5 November 2004,
recognised that legal migration will play an important role in advancing
economic development, and asked the Commission to present a policy plan on
legal migration, including admission procedures, capable of responding promptly
to fluctuating demands for migrant labour in the labour market.
(3) The
European Council of 14 and 15 December 2006 agreed on a series of steps for
2007, which include the development of well-managed legal immigration policies
that fully respect national competences, in order to assist Member States in meeting
existing and future labour needs. It also called for means to be explored to
facilitate temporary migration.
(4) The
European Pact on Immigration and Asylum, adopted by the European Council on 15
and 16 October 2008, expresses the commitment of the European Union and its
Member States to conduct a fair, effective and consistent policy for dealing
with the challenges and opportunities of migration. The Pact forms the basis of
a common immigration policy guided by a spirit of solidarity between Member
States and cooperation with third countries and founded on proper management of
migratory flows, in the interests not only of the host countries but also of
the countries of origin and of the migrants themselves.
(5) The
Stockholm Programme, adopted by the European Council at its meetings of 10 and
11 December 2009, recognises that labour immigration can contribute to
increased competitiveness and economic vitality and that, in the context of the
important demographic challenges that will face the EU in the future with an
increased demand for labour, flexible immigration policies will make an
important contribution to the Union's economic development and performance in
the long term. It invites the European Commission and the European Council to
continue implementing the Policy Plan on Legal Migration[6].
(6) This
Directive should contribute to the effective management of migration flows for
the specific category of seasonal temporary migration by setting out fair and
transparent rules for admission and stay, while at the same time providing for
incentives and safeguards to prevent temporary stay from becoming permanent. In
addition, the rules laid down in Directive 2009/52/EC of the European
Parliament and of the European Council providing for minimum standards on sanctions
and measures against employers of illegally staying third-country nationals[7]
will contribute to avoiding such temporary stay turning into illegal stay.
(7) This
Directive should be applied without
prejudice to the principle of EU preference as regards access to Member States
labour market as expressed in the relevant provisions of Acts of Accession.
(8) This
Directive should be without prejudice to the right of the Member States to
determine the volumes of admission of third-country nationals coming from third
countries to their territory for the purposes of seasonal work as specified in
Article 79(5) of the Treaty on the Functioning of the European Union.
(9) This Directive should not affect conditions of the provision of services in the framework of Article 56 of the TFEU. In particular, this Directive should not affect the terms and conditions of employment which, pursuant to Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services[8], apply to workers posted by an undertaking established in a Member State to provide a service in the territory of another Member State.
(10) Activities
dependent on the passing of the seasons are typically to be found in sectors
such as agriculture, during the planting or harvesting period, or tourism,
during the holiday period.
(11) It should only be possible to apply for admission as a seasonal worker while the applicant is residing outside the territory of the Member States.
(12) The
Directive should not affect, where granted, the rights of third-country
nationals already legally staying in a Member State to work.
(13) The
Directive should provide for a flexible entry system based on demand and
objective criteria, such as a valid work contract or a binding job offer that
specifies the level of remuneration applicable to seasonal workers in the
sector concerned.
(14) Member
States should have the possibility to apply a test demonstrating that a post
cannot be filled from within the domestic labour market.
(15) Provision
for a single procedure leading to one combined document encompassing both
residence and work permit, should contribute to simplifying the rules currently
applicable in Member States. This should not affect the right of Member States to determine the
national authorities and the way they should be involved in the single
procedure, in accordance with national specificities of administrative
organisation and practice.
(16) The
duration of stay should be limited to a maximum period per calendar year which,
together with the definition of seasonal work, should ensure that the work is
of genuinely seasonal nature. Provision should be made that within that maximum
duration of stay, an extension of the contract or change of employer is
possible. This should serve to reduce risks of abuses that seasonal workers may
face if tied to a single employer and at the same time provide for a flexible
response to employers actual workforce needs.
(17) Circular
migration of third-country national seasonal workers should be promoted. In
order for seasonal workers to have employment prospects in the EU for periods
beyond a single season and for EU employers to be able to rely on a more stable
and already trained workforce, the possibility of access to seasonal employment
for several consecutive years should be provided, either through a
multi-seasonal worker permit or a facilitated procedure. This procedure should
include preference over admissions of third-country nationals applying to be
admitted as seasonal workers for the first time or reduced processing times, or
less documentary evidence being required.
(18) A
set of rules governing the procedure for examining applications for admission
as a seasonal worker should be laid down. Those procedures should be effective
and manageable, taking account of the normal workload of Member States
administrations, as well as transparent and fair, in order to offer appropriate
legal certainty to those concerned.
(19) In
order to ensure that seasonal workers have adequate accommodation during their
stay, including at a reasonable cost, provision should be made to require
employers to provide the evidence of the accommodation they or third-parties
provide.
(20) Considering
the specially vulnerable situation of third-country national seasonal workers
and the temporary nature of their assignment, there is a need to define clearly
the working conditions applicable to such workers in order to ensure legal
certainty by referring such conditions to generally binding instruments
providing effective protection of the rights of third-country seasonal workers,
such as law or universally applicable collective agreements.
(21) In
the absence of a system for declaring collective agreements of universal
application, Member States mayshould base
themselves on collective agreements which are generally applicable to all
similar undertakings in the geographical area and in the profession or industry
concerned, and/or collective agreements which have been concluded by the most
representative employers' and labour organisations at national level and which
are applied throughout national territory.
(22) Third-country
national seasonal workers should be granted equal treatment in respect of those
branches of social security listed in Article 3 of Regulation (EC) No 883/04 on
the coordination of social security systems. This Directive should not confer
more rights than those already provided in existing EU legislation in the field
of social security for third-county nationals who have cross-border interests between
Member States. Furthermore, this Directive should not grant rights in relation
to situations which lie outside the scope of that EU legislation such as, for
example, to family members residing in a third country.
(23) To
facilitate enforcement, relevant designated third parties such as trade unions
or other associations should be able to lodge complaints in order to ensure
effective application of the Directive. This is considered necessary to address
situations where seasonal workers are unaware of the existence of enforcement
mechanisms or hesitant to use these in their own name, out of fear of possible
consequences.
(24) Since
the objectives, namely the introduction of a special admission procedure and
the adoption of conditions on entry and residence for the purpose of seasonal
employment by third-country nationals, cannot be sufficiently achieved by
Member States and can therefore be better achieved at Union level, the Union
may adopt measures in accordance with the subsidiarity principle as set out in
Article 5 of the Treaty on European Union. In accordance with the principle of
proportionality as set out in that Article, this Directive does not go beyond
what is necessary in order to achieve those objectives.
(25) This
Directive respects the fundamental rights and observes the principles
recognised in particular by the Charter of Fundamental Rights of the European
Union.
(26) In
accordance with Articles 1 and 2 of Protocol (No 21) on the position of the
United Kingdom and Ireland in respect of the Area of Freedom, Security and
Justice, annexed to the Treaty on European Union and to the Treaty on the
Functioning of the European Union, and without prejudice to Article 4 of that
Protocol, those Member States are not taking part in the adoption of this
Directive, and are not bound by it or subject to its application.
(27) In
accordance with Articles 1 and 2 of Protocol (No 22) on the position of Denmark
annexed to the Treaty on European Union and to the Treaty on the Functioning of
the European Union, Denmark is not taking part in the adoption of this
Directive, and is not bound by it or subject to its application,
HAVE ADOPTED THIS DIRECTIVE:
CHAPTER I
General provisions
Article 1
Subject-matter
This Directive determines the conditions of
entry and residence of third-country nationals for the purposes of employment
as seasonal workers and defines the rights of seasonal workers.
Article 2
Scope
1. This
Directive shall apply to third-country nationals who reside outside the
territory of the Member States and apply to be admitted to the territory of a
Member State for the purpose of employment as seasonal workers.
2. This
Directive shall not apply to third-country nationals who are carrying out
activities on behalf of undertakings established in another
Member State in the framework of a provision of services within the meaningcovered
by of Article 56 of the Treaty on the Functioning of the European Union, including those posted by undertakings established in a
Member State in the framework of a provision of service in accordance with Directive
96/71/EC.
Article 3
Definitions
For the purposes of this Directive, the
following definitions shall apply:
(a) third-country
national means any person who is not a citizen of the European Union within
the meaning of Article 20(1) of the Treaty on the Functioning of the European
Union;
(b) seasonal
worker means a third-country national who retains a legal domicile in a third
country but resides temporarily for the purposes of employment in the territory
of a Member State in a sector of activity dependent on the passing of the
seasons, under one or more fixed-term work contracts concluded directly between
the third-country national and the employer established in a Member State;
(c) activity
dependent on the passing of the seasons means an activity that is tied to a certain time of the year by an event or pattern during
which labour levels are required that are far above those necessary for usually
ongoing operations;
(d) seasonal
worker permit means the authorisation bearing the words seasonal worker
entitling its holder to reside and work in the territory of a Member State
under the terms of this Directive;
(e) single application procedure means a procedure leading, on the basis of one application for the authorisation of a third-country nationals residence and work in the territory of a Member State, to a decision on the application;
(f) universally
applicable collective agreement means a collective agreement which must be
observed by all undertakings in the geographical area and in the profession or
industry concerned. In the absence of a system for declaring collective
agreements to be of universal application, Member States may, if they so
decide, base themselves on collective agreements which are generally applicable
to all similar undertakings in the geographical area and in the profession or
industry concerned, and/or collective agreements which have been concluded by
the most representative employers' and labour organisations at national level
and which are applied throughout national territory.
Article 4
More favourable provisions
1. This
Directive shall apply without prejudice to more favourable provisions of:
(a) Union law, including bilateral and multilateral agreements concluded between the Union or between the Union and its Member States on the one hand and one or more third countries on the other;
(b) bilateral
or multilateral agreements concluded between one or more Member States and one
or more third countries.
2. This
Directive shall not affect the right of Member States to adopt or retain more
favourable provisions for persons to whom it applies in respect of Articles 13
to 17 of this Directive.
CHAPTER II
Conditions of admission
Article 5
Criteria for admission
1. Applications
for admission to a Member State under the terms of this Directive shall be
accompanied by the following documents:
(a) a
valid work contract or, as provided for in national law, a
binding job offer to work as a seasonal worker in the Member State concerned
with an employer established in the Member State that specifies the rate of pay
and the working hours per week or month and, when applicable, other relevant
working conditions;
(b) a
valid travel document, as determined by national law. Member States may require
the period of the validity of the travel document to cover at least the
duration of the residence permit;
(c) evidence
of having or, if provided for by national law, having applied for sickness
insurance for all the risks normally covered for nationals of the Member State
concerned for periods where no such insurance coverage and corresponding
entitlement to benefits are provided in connection with, or as a result of, the
work contract;
(d) evidence
of having accommodation as set out in Article 14.
2. Member
States shall requireensure that
the seasonal worker will have sufficient resources during his/her stay to
maintain him/herself without having recourse to the social assistance system of
the Member State concerned.
3. Third-country
nationals who are considered to pose a threat to public policy, public security
or public health shall not be admitted for the purposes of this Directive.
Article 6
Grounds for refusal
1. Member
States shall reject an application for admission to a Member State for the
purposes of this Directive whenever the conditions set out in Article 5 are not
met or whenever the documents presented have been fraudulently acquired, or
falsified, or tampered with.
2. Member
States may verify whether the vacancy concerned could not be filled by national
or EU, or by third-country nationals lawfully residing in the Member State and
already forming part of its labour market by virtue of EU or national law and
reject the application.
3. Member
States may reject an application if the employer has been sanctioned in
conformity with national law for undeclared work and/or illegal employment.
4. Member
States may reject an application on the grounds of volumes of admission of
third-country nationals.
Article 7
Withdrawal or non-renewal of the permit
1. Member
States shall withdraw or refuse to renew the permit issued on the basis of this
Directive in the following cases:
(a) when
it has been fraudulently acquired, or has been falsified, or tampered with;
or
(b) where
the holder is residing for purposes other than those for which he/she was
authorised to reside.
2. Member
States may withdraw or refuse to renew the permit issued on the basis of this
Directive in the following cases:
(a) wherever
the conditions laid down in Article 5 were not met or are no longer met;
or
(b) for
reasons of public policy, public security or public health.
CHAPTER III
Procedure and permit
Article 8
Access to information
Member States shall take the necessary
measures to make available information on conditions of entry and residence,
including rights and all documentary evidence needed for an application to
reside and work in the territory of a Member State as a seasonal worker.
Article 9
Applications for admission
1. Member
States shall determine whether an application is to be made by the
third-country national or by the employer.
2. Member
States shall designate the authority competent to receive the application and
to issue the seasonal worker permit.
3. The
application to reside and work in the territory of a Member State as a seasonal
worker shall be submitted in a single application procedure.
4. The Member State concerned shall grant the third-country national whose application for admission has been accepted every facility to obtain the requisite visa.
Article 10
Seasonal worker permit
1. For
stays exceeding three months, seasonal workers who fulfil the admission
criteria as set out in Article 5 and for whom the competent authorities have
taken a positive decision shall be issued with a
seasonal worker permit.
2. The
seasonal worker permit shall be issued by the competent authorities of the
Member States using the format as laid down in Council Regulation (EC) No
1030/2002[9].
In accordance with point (a) 6.4 of the Annex to that Regulation, Member States
shall enter seasonal worker under the heading type of permit.
3. Member
States shall not issue any additional documents to the holder of the seasonal
worker permit as proof of the access given to the labour market.
Article 11
Duration of stay
1. Seasonal
workers shall be allowed to reside for a maximum of six months in any calendar
year, after which they shall return to a third country.
2. Within
the period referred to under paragraph 1, and provided that the criteria of
Article 5 are met, seasonal workers shall be allowed to extend their contract
or to be employed as seasonal worker with a different employer.
Article 12
Facilitation of re-entry
1. Member
States shall either:
(a) upon
application, issue up to three seasonal worker permits covering up to three
subsequent seasons within one administrative act (multi-seasonal worker permit),
or
(b) provide
a facilitated procedure for third-country nationals who were admitted to that
Member State as seasonal workers and who apply to be admitted as such in a
subsequent year.
2. Member
States shall provide that:
(a) a
third-country national who has not complied with the obligations arising from
the admission decision during a previous stay as a seasonal worker, and in
particular with the obligation to return to a third country on the expiry of
the permit, shall be excluded from admission as seasonal worker for one or more
subsequent years;
(b) an
employer who has not fulfilled the obligations arising out of the work contract
shall be subject to effective, proportionate and dissuasive sanctions. Such
employers shall be excluded from applications for seasonal workers for one or
more subsequent years.
Article 13
Procedural safeguards
1. The
competent authorities of the Member State shall adopt a decision on the
application and notify the applicant in writing, in accordance with the
notification procedures laid down in the national law of the Member State,
within 30 days of the complete application being lodged.
2. Where the information supplied in support of the application is inadequate, the competent authorities shall notify the applicant within a reasonable period of the additional information that is required and set a reasonable deadline for providing it.
3. Any
decision rejecting an application, or any decision not to renew or to withdraw
the permit, shall be notified in writing to the applicant and shall be open to
a legal challenge in the Member State concerned in accordance with national
law. The notification shall specify the reasons for the decision, the possible
redress procedures available and the time limit for taking action.
Article 14
Accommodation
Member States shall require employers of
seasonal workers to provide evidence that the seasonal worker will benefit from
accommodation that ensures
an adequate standard of living. If seasonal workers are required to pay rent
for such accommodation, its cost shall not be excessive in relation to their
remuneration.
CHAPTER IV
Rights
Article 15
Rights on the basis of the seasonal worker permit/visa
During the period of validity of a seasonal
worker permit, the holder shall enjoy at least the following rights:
(a) the
right to enter and stay in the territory of the Member State issuing the
permit;
(b) free
access to the entire territory of the Member State issuing the permit within
the limits provided for by national law;
(c) the
right to exercise the concrete employment activity authorised under the permit
in accordance with national law.
Article 16
Rights
Whatever the law applicable to the employment relationship, seasonal workers shall be entitled to:
1. working conditions, including pay and dismissal as well as health and safety requirements at the workplace, applicable to seasonal work as laid down by law, regulation or administrative provision and/or universally applicable collective agreements in the Member State to which they have been admitted according to this Directive;
In the absence of a system for declaring
collective agreements to be of universal application, Member States may, if
they so decide, base themselves on collective agreements which are generally
applicable to all similar undertakings in the geographical area and in the
profession or industry concerned, and/or collective agreements which have been
concluded by the most representative employers' and labour organisations at
national level and which are applied throughout national territory.
2. equal
treatment with nationals of the host Member State as regards at least with
regard to:
(a) freedom
of association and affiliation and membership of an
organisation representing workers or of any organisation whose members are
engaged in a specific occupation, including the benefits conferred by such organisations, without prejudice to the
national provisions on public policy and public security;
(b) provisions
in national laws regarding the branches of social security as defined in Article
3 of Council Regulation (EC) No 883/04;
(c) payment
of statutory pensions based on the worker's previous employment under the same conditions
as nationals of the Member States concerned when they move to a third country;
(d) access
to goods and services and the supply of goods and services made available to
the public, except public housing and counselling services afforded by employment
services.
The right to equal treatment provided for in paragraph
2 shall be without prejudice to the right of the Member State to withdraw or to
refuse to renew the permit in accordance with Article 7.
Article 17
Facilitation of complaints
Member States shall ensure that third
parties which have, in accordance with the criteria laid down by their national
law, a legitimate interest in ensuring compliance with this Directive, may
engage either on behalf of or in support of a seasonal worker, with his/her
approval, in any administrative or civil proceedings provided for with the
objective of implementing this Directive.
CHAPTER V
Final provisions
Article 18
Statistics
1. Member States shall communicate to the Commission statistics on the number of residence permits and visas issued for the first time or renewed and, as far as possible, on the number of residence permits and visas withdrawn for the purpose of seasonal employment to persons who are third-country nationals, disaggregated by citizenship, age and sex, length of validity of the permit and economic sector.
2. The
statistics referred to in paragraph 1 shall be communicated in accordance with
Regulation (EC) No 862/2007 of the European Parliament and of the Council[10].
3. The
statistics referred to in paragraph 1 shall relate to reference periods of one
calendar year and shall be communicated to the Commission within six months of
the end of the reference year. The first reference year shall be [the year
following the point of time referred to in Article 20(1)].
Article 19
Reporting
Every three years, and for the first time no later than [three years after the date of transposition of this Directive], the Commission shall submit a report to the European Parliament and to the Council on the application of this Directive in the Member States and shall propose any amendments necessary.
Article 20
Transposition
1. Member
States shall bring into force the laws, regulations and administrative
provisions necessary to comply with this Directive by (24 months from the
date of publication in the Official Journal of the European Union) at the latest. They shall forthwith communicate to the Commission
the text of those provisions and a correlation table between those provisions
and this Directive.
When Member States adopt those provisions, they
shall contain a reference to this Directive or be accompanied by such reference
on the occasion of their official publication. Member States shall determine
how such reference is to be made.
2. Member
States shall communicate to the Commission the text of the main provisions of
national law which they adopt in the field covered by this Directive.
Article 21
Entry into force
This Directive shall enter into force on the
day following its publication in the Official Journal of the European Union.
Article 22
Addressees
This Directive is addressed to the Member
States, in accordance with the Treaty on the Functioning of the European Union.
Done at Brussels, []
For the European Parliament For
the Council
The President The
President
