Opinion of the Economic and Social Committee on:

- the "Proposal for a Directive of the European Parliament and of the Council on the posting of workers who are third-country nationals for the provision of cross-border services", and

- the "Proposal for a Council Directive extending the freedom to provide cross-border services to third-country nationals established within the Community"(1)

(1999/C 209/02)

On 25 May 1999 the Council decided to consult the Economic and Social Committee, under Article 198 of the Treaty establishing the European Community, on the above-mentioned proposals.

The Section for the Single Market, Production and Consumption, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 18 May 1999. The rapporteur was Mr Liverani.

At its 364th plenary session (meeting of 26 May 1999), the Economic and Social Committee adopted the following opinion with 70 votes in favour and six abstentions.

1. Introduction

1.1. The proposed European Parliament and Council Directive on the posting of third-country workers for the provision of cross-border services is based on Article 57(2) of the EC Treaty; this Article is cited in Article 66 with specific reference to the provision of services (co-decision procedure). In contrast, the proposed Council Directive extending the freedom to provide cross-border services to third-country nationals established within the Community is based on Article 59(2) (consultation procedure).

1.2. Both proposals provide for the issue of an "EC service provision card" to cover third-country nationals who are legally resident and authorised to take up employment or be self-employed in one Member State, and who have to move to another Member State for the purpose of providing services but face problems with visas, residence permits and work permits. Whilst the proposals relate to the freedom to provide services, they are also socially important for the free movement of workers - including those from third countries - regarding whom the Committee recently issued an opinion on a Commission communication(2).

1.3. The first proposal concerns Community businesses providing cross-border services and wishing to second staff who are nationals of third countries. Under the proposal, the service provider would be able "at any time" to second an employee by sending a simple prior declaration to the authorities of the Member State in which the service is to be provided. The declaration system incorporates guarantees by the country where the service provider is established, in the form of an "EC service provision card". The card is the same in all Member States, has a limited duration of up to 12 months and is not automatically renewable.

1.4. The second proposal concerns the freedom to provide services for third-country nationals established as self-employed within the Community. The aim is that a self-employed third-country national should not be obliged to be established in a second Member State in order to be able to provide a service there. In these cases too, an EC service provision card is to be introduced.

1.5. The card - of limited duration - is to be issued by the Member State in which the service provider is established. The card regularises the employer's situation and that of the employee or self-employed person who is a third-country national. The procedure spares the service provider from having to comply with lengthy administrative formalities in each Member State in which he wishes to provide a service. It is made clear that the posting of a worker to provide a service is quite different from the right to free movement and employment within the Community. The administrative procedures for the Member State in which the service is provided are also simplified. The EC service provision card ensures that the Member State in which the third-country national is established allows this person to return at the end of the posting.

2. General comments

2.1. The Committee welcomes the Commission proposals. They cover an increasingly widespread form of economic and employment activity which hitherto has not been coordinated at Community level, and will add to the important EU legislation already in force on equal treatment of third-country nationals and the removal of barriers to the freedom to provide services - the area targeted by the present proposals.

2.2. Amongst this earlier legislation, reference should be made to Directive 96/71/EC(3); which requires firms posting workers to another Member State to comply with a "hard core" of essential minimum rules (notably as regards minimum wages) in force in that country.

2.3. Mention should also be made of the recent extension of Regulation (EEC) 1408/71(4) to third-country nationals(5), on which the Committee issued a favourable opinion(6).

2.4. The Committee notes the EU's undertaking to establish a common position laying down the extent to which third-country nationals who are legally and permanently resident in the Community are entitled to be treated the same as EU citizens(7). The Committee also stresses that Article 59(2) of the 1957 Treaty of Rome envisaged extending the right to provide services to workers who are third-country nationals, but that this still remains to be done.

2.5. At all events, the present proposals are justified not only by the discrimination faced by third-country nationals but more especially by the continuing serious obstacles to the freedom to provide services. This state of affairs prompts the Committee to endorse the principle - explicitly confirmed in a recent recommendation(8) - that the conditions governing the provision of services do not come under immigration policy.

2.6. Member States' legislation in this field varies greatly. Some Member States treat secondment as being the same as seeking employment with an employer established on their territory, when this is clearly not the case in practice. In other Member States, legislation is less strict but still requires a new work permit - or an ad hoc instrument specially devised for secondments - from the authorities in the region in which the service is to be provided. Some Member States require the employee to have worked for the same employer for at least a year before he can be seconded; in some cases, this requirement places an EU business at a disadvantage vis-à-vis a third-country one, which is not subject to this obligation.

2.7. Service providers established in a Member State other than the one in which the service is to be provided face a twofold disadvantage. Firstly, the lengthy red tape needed to obtain authorisation from the authority of the country in which the service is to be provided can seriously hamper - if not prevent - the provision of the service if the person concerned is a third-country national. Secondly, the checks carried out by the Member State in which the service is to be provided add to those already carried out by the Member State in which the service provider is established.

2.8. The present proposals would undoubtedly help national authorities, who are currently obliged to check the lawfulness of situations which are largely dependent on the Member State in which the service provider is established. Moreover, the authorities retain the right to make further checks where they deem necessary. However, it is not entirely clear whether a third-country entrepreneur whose evidence of formal qualifications was acquired in a non-EU state can provide services in all Member States provided that at least one Member State recognises these qualifications. More precise provisions should be formulated to this effect in the draft directives.

2.9. The introduction of an EC service provision card also means that national authorities will no longer need to require an entry visa, provided that the card certifies the lawfulness of the situation in the Member State in which the service provider is established. The Member State is also obliged to readmit the card-holder at any time. So that the EC service provision card can meet the requirements set out above, the Committee considers it essential that the issue of such a card is linked to the criterion of lawful employment with the seconding company, in accordance with the procedures laid down by the European Commission and the Council. The Committee asks that every step be taken to ensure that the card cannot be tampered with for illicit purposes. This means using appropriate technologies when manufacturing the card, and seeing that the authorities exchange information promptly and efficiently.

2.10. EU businesses would also benefit from the introduction of the card for self-employed third-country nationals established in the Union. The card would extend to the whole Community the reference market for subcontractors, who are often natural persons. In view of the proposed directive on the posting of workers who are third-country nationals, denying self-employed persons the same freedom to provide a service would cause discrimination and distortion of the single market. It is unjustifiable that a self-employed person who is a third-country national should be obliged to set up a company in a Member State in order to be able to benefit from the freedom to provide services.

2.11. Moreover, the Committee would point out that the transposition of the proposed directives should be assessed separately against the background of the planned enlargement of the EU, particularly as regards transitional periods. The Committee therefore calls upon the Commission to assess the effects of its proposed directives on the labour market in the EU.

3. Conclusions

3.1. The Committee is pleased to note that the proposals anticipate the spirit of the changes introduced by the Amsterdam Treaty. This Treaty, which entered into force on 1 May 1999, adds a chapter on visas, asylum, immigration and other policies related to an area of freedom, security and justice. The status of a third-country national legally admitted as such to a Member State will therefore be part of the future acquis communautaire, particularly in the context of measures taken under Article 63(4) of the new EC Treaty.

3.2. However, in the context of the free movement of services, third-country nationals who have been legally admitted to a Member State in order to take up employment or be self-employed already had a link with the acquis communautaire (as, for example, do family members of EU workers) prior to the entry into force of the Amsterdam Treaty. The nature of the proposals currently under examination is such that they fall within the framework of the single market.

Brussels, 26 May 1999.

The President

of the Economic and Social Committee

Beatrice RANGONI MACHIAVELLI

(1) OJC 67, 10.3.1999, p. 12-17.

(2) Opinion of the Economic and Social Committee on the Commission communication on an action plan for free movement of workers (COM(97) 586 final - OJ C 235, 27.7.1998, p. 82).

(3) 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 (OJ L 18, 21.1.1997, p. 1).

(4) Council Regulation (EEC) 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (consolidated version in OJ L 28, 30.1.1997).

(5) Proposal for a Council Regulation (EC) amending Regulation (EEC) 1408/71 as regards its extension to nationals of third countries (OJ C 6, 10.1.1998, p. 15).

(6) ESC opinion of 25 March 1998 (OJ C 157, 25.5.1998, p. 30).

(7) Cf. Commission communication Towards an area of freedom, security and justice,14.7.1998 (COM(1998) 459 final, p. 6).

(8) Council recommendation of 27.9.1996 on combating the illegal employment of third-country nationals (OJ C 304, 14.10.1996, p. 1, point 1, "scope").