Opinion of the Committee of the Regions on the Communication from the Commission to the Council and the European Parliament on the presentation of a proposal for a directive and two proposals for recommendations on the admission of third-country nationals to carry out scientific research in the European Community

(2005/C 71/02)

THE COMMITTEE OF THE REGIONS

HAVING REGARD TO the Communication from the Commission to the Council and the European Parliament on the presentation of a proposal for a directive and two proposals for recommendations on the admission of third-country nationals to carry out scientific research in the European Community (COM(2004) 178 final - 2004/0061 (CNS) - 2004/0062 (CNS) - 2004/0063 (CNS));

HAVING REGARD TO the decision of the Commission of 29 June 2004 to consult the Committee on this matter, under the first paragraph of Article 265 of the Treaty establishing the European Community;

HAVING REGARD TO the decision of its Bureau of 15 June 2004 to instruct the Commission for External Relations to draw up an opinion on this subject;

HAVING REGARD TO its opinion on immigration policy (Communication from the Commission on a common policy on illegal immigration (COM(2001) 672 final)) and asylum policy (Proposal for a Council Directive on minimum standards for the qualifications and status of third-country nationals and stateless persons as refugees or as persons who otherwise need international protection (COM(2001) 510 final - 2001/0207 (CNS)) adopted on 16 May 2002 (CdR 93/2002 fin) [1];

HAVING REGARD TO its opinion on the Green Paper on a Community return policy on illegal immigrants (COM(2002) 175 final) adopted on 20 November 2002 (CdR 242/2002 fin) [2];

HAVING REGARD TO its opinion on the Amended proposal for a Council Directive on the right to family reunification (COM(2002) 225 final – 1999/0258 CNS) adopted on 20 November 2002 (CdR 243/2002 fin) [3];

HAVING REGARD TO its opinion on the Proposal for a Council Directive on the conditions of entry and residence of third-country nationals for the purposes of studies, vocational training or voluntary service (COM(2002) 548 final – 2002/0242 CNS) adopted on 9 April 2003 (CdR 2/2003 fin) [4];

HAVING REGARD TO its opinion on the Proposal for a Council Decision establishing the European Refugee Fund for the period 2005-2010 (COM(2004) 102 final – 2004/0032 (CNS) (CdR 80/2004 fin) adopted on 17 June 2004;

HAVING REGARD TO the draft opinion (CdR 168/2004 rev. 1) adopted by the Commission for External Relations on 17 September 2004 (rapporteur: Mr Skuthälla, Leader of Närpes Town Council (FI, ELDR))

adopted the following opinion unanimously at its 57th plenary session, held on 17- 18 November 2004 (meeting of 17 November).

PROPOSAL FOR A COUNCIL DIRECTIVE ON A SPECIFIC PROCEDURE FOR ADMITTING THIRD COUNTRY NATIONALS FOR PURPOSES OF SCIENTIFIC RESEARCH

1. The Committee of the Regions' views

on the draft directive:

THE COMMITTEE OF THE REGIONS:

1.1 endorses the draft Directive, subject to the changes proposed below;

1.2 stresses the importance of adopting, in addition to the measures applying to admission of third-country nationals to carry out scientific research, further coordinating measures to achieve the objective of investing 3 % of Member States' GDP in research before the end of the decade. To this end, scientific careers should be made more attractive to young people, opportunities for further training and mobility should be increased for researchers, and research career opportunities should be improved within the Community. (fourth recital);

1.3 emphasises that implementation of the Directive must not lead to a brain drain in emerging and developing countries. Complementary measures to encourage researchers to return to their country of origin and to promote researcher mobility must be adopted in partnership with the countries of origin in order to create a global migratory policy. The CoR would stress the importance of submitting concrete proposals in 2004 in accordance with the Council's request of 19 May 2003. (sixth recital);

1.4 considers it appropriate that researcher admission should not require a work permit in addition to a residence permit. However, in addition to the procedures provided for by the Directive, the standard admission procedures are still important for doctoral students who are doing research as part of their study programme, since the Directive does not apply to them. (seventh recital);

1.5 endorses the proposal to give research organisations a key role in the researcher admission procedure. However, it is extremely important that the division of responsibilities and duties between the research organisation and the authorities should be clear in order to avoid duplication and clumsy bureaucratic solutions. The CoR would stress that, for reasons of legal certainty, it is important to establish clearly the area of competence of each party. Cooperation between the research organisation and the authorities should not impinge upon the authorities' legal right to carry out monitoring and control activities. (eighth recital);

1.6 highlights the vital importance of the hosting agreement in the admission procedure. In the hosting agreement the researcher undertakes to carry out the specific research project and the research institution undertakes to host the researcher, provided he is granted a residence permit. Since the hosting agreement is a precondition for admission, it must include all the relevant information needed to assess each case. Information regarding the research project should also be provided in detail so that the research organisation and – exceptionally – the relevant authority can assess the situation. The Committee of the Regions feels that these aspects have been adequately addressed in the Directive. (ninth recital);

1.7 notes that the research organisation's overall economic responsibility for any costs incurred by the researcher during his residence in the Member State could constitute a change to established admission and residence practice. The Committee of the Regions would stress the need to establish with some accuracy the budget lines intended to cover the researcher's residence, health and return expenses, and the starting point for economic responsibility. (tenth recital);

1.8 considers that the definition of a "researcher" is appropriate, as a broad interpretation will enable the directive to be implemented extensively. There is, for example, no requirement for the applicant to have worked explicitly as a researcher in the country of origin. However, the purpose of admission must be to carry out a research project, in conjunction with which teaching in a higher education establishment is also allowed. (eleventh recital);

1.9 notes that "research organisation" has been appropriately defined. In order to achieve the objective of investing 3 % of GDP in research, private sector establishments and firms should also be covered by the definition. It is extremely important that the organisation can be regarded as conducting research and has been approved by the Member State where it is located. (Article 2);

1.10 stresses the need to take on board the views of the regional and local authorities with regard to prior approval of a research organisation that wishes to host researchers from a third country. (Article 4);

1.11 endorses the option to withdraw or refuse to extend approval of a research organisation. This can occur when a research organisation no longer meets the conditions laid down in paragraphs 2, 3, 4 and 7 of Article 4; when the researcher does not meet the conditions laid down in Articles 5 and 6; and when the research organisation has entered a hosting agreement with a third-country national against whom the Member State has invoked Article 8(1). The CoR believes that the availability of legal sanctions will provide an incentive to carefully comply with the provisions of the directive, thus giving it a preventive capacity. (Article 4);

1.12 stresses the need for researchers with residence permits and valid travel documents to be able to carry out part of the research project in the territory of another Member State, as long as the procedure poses no risk to law and order, security or public health. Depending on how long this part of the research project takes, a new hosting agreement might have to be concluded. On the basis of the hosting agreement, the researcher must be granted residence in the other Member State. The CoR notes that it is also appropriate to facilitate greater mobility within the EU, and this should be regarded as improving its international competitiveness. (Article 13);

1.13 considers the requirement for the competent authority to make a decision within 30 days of submission of the application for admission or extension of the residence permit to be necessary in order to guarantee procedural rapidity. In this connection the CoR would emphasise that, for reasons of legal certainty, uniform conventional administrative procedures should be employed whenever an application is deemed to be complicated, as the prescribed deadline does not have to be met in such cases. (Article 15).

Proposal for a Council recommendation to facilitate the admission of third-country nationals to carry out scientific research in the European Community

1.14 considers that the measures contained in the recommendation are an important step towards gradual compliance with obligations and rules resulting from implementation of the directive;

1.15 notes for example the recommendation that researchers should be exempt from the work permit requirement or granted one automatically, which should help to speed up processing times. Given the EU's major long-term need for researchers, there is also justification for only issuing limited duration work and residence permits when the needs of the country of origin make this necessary. (Recommendations 1a, 1c and 2b);

1.16 stresses the importance of early involvement of research organisations in the researcher admission procedure in order to create a climate of mutual confidence and optimum cooperation between the research organisations and the competent authorities. (Recommendation 2 c);

1.17 endorses the recommendation to promote family reunification where this is not mandatory under the terms of the directive on the right to family reunification, by, for example, permitting family reunification applications to be submitted following arrival in a Member State. The CoR would also stress the importance of processing family members' residence applications within a short timeframe. Any potential problems the researcher's family might experience with their residence application could dissuade the researcher from relocating to the Member States. (Recommendations 3a, 3b and 3d).

Proposal for a Council recommendation to facilitate the issue by the Member States of uniform short-stay visas for researchers from third countries travelling within the European Community for the purpose of carrying out scientific research

1.18 stresses the need for the Member States to make wide use of the option to issue multiple entry visas. For reasons of competition, it is also appropriate to take account of the length of the research project when establishing the validity period of the visa. Such pragmatic solutions are likely to improve the appeal of relocation in a climate of global competition. (Recommendation 2);

1.19 highlights the need for the Member States to comply with the principles established in the recommendation in order to facilitate mobility for researchers who often travel for short periods. Accordingly, it is appropriate to assume that researchers who relocate to the European Union are acting in good faith, and this should also be taken into consideration in connection with their obligation to produce documentation when applying for a visa. (Recommendation 3).

2. Committee of the Regions' recommendations (amendments)

Recommendation 1 on the draft directive

8th recital (page 24 of the Swedish language version)

Commission proposal | CoR amendment |

The specific procedure for researchers is based on collaboration between the research organisations and the immigration authorities in the Member States: it gives the former a key role in the admission procedure with a view to facilitating and speeding up the entry and residence of third-country researchers in the Community while preserving Member States' prerogatives with respect to immigration policing. | The specific procedure for researchers is based on collaboration between the research organisations and the immigration authorities in the Member States: it gives the former a key role in the admission procedure with a view to facilitating and speeding up the entry and residence of third-country researchers in the Community while preserving Member States' prerogatives with respect to immigration policing, including by other authorities. |

Reason

The involvement of research organisations should not deprive the authorities of their right to carry out immigration policing. Since these tasks are not the sole responsibility of the police, it is appropriate to mention other authorities' immigration policing activities. There should be no need to draw up an exhaustive list of these authorities within the Community.

Recommendation 2 on the draft directive

Article 4 1) (page 27 of the Swedish language version)

Commission proposal | CoR amendment |

Any research organisation wishing to host a researcher under the admission procedure laid down in this Directive must first be approved for that purpose by the Member State where it is located. | Any research organisation wishing to host a researcher under the admission procedure laid down in this Directive must first be approved for that purpose by the Member State where it is located. Local and regional considerations should be taken into account in the approval procedure by aiming to secure appropriate geographic locations for such research organisations. |

Reason

The addition is needed in order to stress the importance of including regional and local views in the global assessment of factors that are important in the decision-making process.

Recommendation 3 on the draft directive

Article 15 2) (page 32 of the Swedish language version)

Commission proposal | CoR amendment |

Reasons shall be given for any decision refusing, amending, refusing to renew or withdrawing a residence permit. The decision shall specify the appeal procedures available and the time limit for taking action. | Reasons shall be given for any decision refusing, amending, refusing to renew or withdrawing a residence permit. The notification shall specify the appeal procedures available and the time limit for taking action. The notification shall contain directions regarding the appeal procedure and include information regarding the necessary content of and appendices to any appeal document, the deadline for submitting the appeal and details of the board of appeal. |

Reason

For reasons of legal protection, any decision affecting a person's rights and obligations must state as clearly as possible how that person should go about challenging the decision.

Brussels, 17 November 2004.

The President

of the Committee of the Regions

Peter Straub

[1] OJ C 278 of 14.11.2002, p. 44

[2] OJ C 73 of 26.3.2003, p. 13

[3] OJ C 73 of 26.3.2003, p. 16

[4] OJ C 244 of 10.10.2003, p. 5

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