Opinion of the European Economic and Social Committee on the Proposal for a Council Directive on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State COM(2007) 638 final — 2007/0229 (CNS)
Date: 2008-07-09
Institutions: European Economic and Social Committee
Subjects: ESC opinion, equal treatment, foreign national, labour law, migrant worker, migration policy, residence permit

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Opinion of the European Economic and Social Committee on the ‘Proposal for a Council Directive
on a single application procedure for a single permit for third-country nationals to reside and work
in the territory of a Member State and on a common set of rights for third-country workers legally
residing in a Member State’

COM(2007) 638 final — 2007/0229 (CNS)

(2009/C 27/24)

On 7 February 2008, the Council decided to consult the European Economic and Social Committee, under
Article 262 of the Treaty establishing the European Community, on the

Proposal for a Council Directive on a single application procedure for a single permit for third-country nationals to
reside and work in the territory of a Member State and on a common set of rights for third-country workers legally
residing in a Member State.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the
Committee's work on the subject, adopted its opinion on 10 June 2008. The rapporteur was Mr Pariza
Castaños.

At its 446th plenary session, held on 9 and 10 July 2008 (meeting of 9 July), the European Economic and
Social Committee adopted the following opinion by 140 votes to three, with seven abstentions.

1. Preliminary comments

could fall apart if we do not change immigration policies. Active
policies for the admission of both highly qualified and less
qualified workers are needed.

1.1
Eight years have passed since the Tampere European
Council, when the EU decided to push forward a common
immigration policy. However, little progress has been made on
one of the key aspects — immigrant admission policy and legis-
lation. This is still governed by national
legislation, with no
harmonisation at EU level to regulate admission; national legis-
lation varies greatly and expresses contradictory policies.

It

is

in the Council of

incomprehensible that

1.4
the
European Union some governments have vetoed the Commis-
sion's legislative proposals and are perpetuating the restrictive
policies of old. Meanwhile,
the black economy and illegal
employment are growing, creating a real ‘pull factor’ for undo-
cumented migrants. In the absence of common European legis-
lation, the Member States are adopting new legislation with very
different political agendas, adding further barriers to harmonisa-
tion. These different political agendas and legislative disparities
cause confusion and uncertainty amongst citizens.

1.2
Over six years have passed since the Commission drew
up its Proposal for a Council Directive on the conditions of entry and
residence of third-country nationals for the purpose of paid employment
and self-employed economic activities (1). The EESC and the
Parliament
the proposal.
However, the proposal did not make it past the first reading by
the Council. Since then, some States have drawn up new legisla-
tion
different
immigration,
approaches.

issued Opinions (2)

supporting

economic

taking

very

on

immigrants,

The EESC has proposed that with regard to legislation on
1.5
the admission of
the European
Union should abandon the unanimity requirement and adopt its
decisions by qualified majority and co-decision with the
Parliament (4). This is the only way to draft good legislation,
which makes progress towards harmonisation in the EU.

the Council of

1.3
In the years to come, Europeans will need new economic
migrants to contribute to social and economic development (3).
The demographic situation indicates that the Lisbon Strategy

(1) COM(2001) 386 final.
(2) See the EESC opinion of 16 January 2002 on the Proposal for a Council
Directive on the conditions of entry and residence of third-country
nationals for the purpose of paid employment and self-employed
(OJ C 80,
economic activities (rapporteur: Mr Pariza Castaños)
3.4.2002) and the EP opinion in OJ C 43 E, 19.2.2004 (rapporteur:
Ms Terrón i Cusí).

(3) The conclusions of the European Council of December 2006 (the plan
for a legal migration policy) and also see the EESC opinion of
10 December 2003 on the Communication from the Commission to
the Council, the European Parliament, the European Economic and
Social Committee and the Committee of the Regions on immigration,
integration and employment, rapporteur: Mr Pariza Castaños (OJ C 80,
30.3.2004).

The EESC believes that immigration legislation should be
1.6
included in the Lisbon Treaty under the ordinary procedure
(Commission initiative, qualified majority in the Council and
co-decision with the Parliament).

1.7
However, this proposal for a directive is being debated in
the Council under the unproductive principle of unanimity.
Therefore, as the Committee proposed in its opinion on the
Hague programme (5), ‘This change must take place now, before the
study of new legislative proposals’. The EESC proposes that the

(4) See the EESC opinion of 15 December 2005 on the Communication
from the Commission to the Council and the European Parliament: The
Hague Programme: Ten priorities for the next five years — The Partner-
ship for European renewal in the field of Freedom, Security and Justice,
rapporteur: Mr Pariza Castaños (OJ C 65, 17.3.2006).

(5) See footnote 4.

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Council adopt the ‘bridging’ procedure already in force with
regard to asylum, so that these directives may be approved by
qualified majority and co-decision with the Parliament.

As already stated by the Committee,

1.8
‘For the new admis-
sion legislation, an overall, horizontal legislative framework is prefer-
able to sectoral legislation. The proposal for a Directive on admission
drawn up by the Commission and supported by the EESC, with a few
changes, remains a good legislative proposal. Additionally, specific
rules could be drawn up for sectoral issues and particular situations. If
the Council of the European Union were to opt for a sectoral approach,
geared only towards the admission of highly skilled migrants, it would
not apply to much of migration, and would also be discriminatory.
This option might be easier for the Council, but it does not respond to
European needs (6)’.

1.9
The Lisbon Treaty sets the limits for common legislation,
including Member States' right to ‘determine volumes of admis-
sion’ of migrants to their country. This limit does not prevent a
high degree of legislative harmonisation from being reached in
the EU. It is an incentive for national management of economic
migration to be dealt with using common, transparent proce-
dures. The power to issue work and residence permits would
belong to authorities in the Member States, but within the
framework of Community legislation. Thus, each Member State
could decide, in cooperation with the social partners, on what
kind of immigration it requires. National legislation should take
account of each country's specific circumstances, whilst also
respecting European legislation.

This proposal

for a horizontal directive on a single
1.10
application procedure for a single permit
third-country
nationals to reside and work in the territory of a Member State
and on a common set of rights for third-country workers legally
residing in a Member State meets the aims of the European
Union to establish a comprehensive immigration policy.

for

This aim was first adopted at the Tampere European
1.11
Council of October 1999, the final declaration of which states
that the EU should guarantee fair treatment for third-country
nationals residing legally in the Member States, and that their
rights and obligations should be equivalent to those of EU citi-
zens themselves.

The Hague Programme of November 2004, however,
1.12
recognised that ‘legal migration will play an important role in
enhancing the knowledge-based economy in Europe, in advan-
cing economic development, and thus contributing to the
implementation of the Lisbon strategy’.

The Commission drew up a Green Paper (7) in 2004
1.13
with the aim of opening up a debate and a period of

consultation on the management of economic migration within
the EU. The EESC drew up an opinion (8) proposing that the EU
lay down common legislation on the admission of migrants;
such legislation should have a high degree of harmonisation and
be horizontal rather than sectoral.

The European Council of December 2006 adopted the
1.14
policy plan on legal migration, which is intended to meet two
objectives:

to lay down admission conditions for specific cate-
1.14.1
gories of migrants (highly qualified workers, seasonal workers,
remunerated trainees and intra-corporate transferees)
in four
specific legislative proposals; and

1.14.2
to establish the general framework for an approach
that is equitable and based on respect for migrant workers'
rights.

2. Proposal for a Directive

2.1
The proposal for a directive is intended to secure the
legal status of already admitted third-country workers and to
introduce procedural simplifications for the applicants.

There are considerable differences in the Member States'

2.2
treatment of migrant workers.

2.3
Significant differences also exist
migrants in comparison with Community workers.

in the treatment of

2.4
The directive aims to establish a single application proce-
dure for third country nationals seeking to enter the territory of
a Member State for the purpose of residence and employment
and a common set of rights for third country workers residing
legally: working conditions, including pay and dismissal, associa-
tion, access to vocational
training and to the main social
security benefits, etc.

2.5
This is a horizontal directive, and includes economic
migrants and persons who were issued with a residence permit
for purposes other than work and were subsequently given
access to the labour market on the basis of Community or
national provisions (e.g.
family members, refugees, students,
researchers).

The directive's scope excludes third country nationals
2.6
who are posted workers (9) because they do not form part of
the labour market of
the Member State to which they are
posted, intra-corporate transferees, contractual service suppliers

(6) See footnote 4.
(7) Green paper on an EU approach to managing economic migration

(COM(2004) 811 final).

(8) See the EESC opinion of 9 June 2005 on the Green paper on an
EU approach to managing economic migration, rapporteur: Mr Pariza
Castanos (OJ C 286, 17.11.2005).

(9) Directive 96/71/EC.

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and graduate trainees, seasonal workers and lastly third-country
nationals who have acquired long-term resident status.

2.7
This proposal establishes the obligation for Member
States to examine each application to work and reside in their
territory in a single application procedure — and if granted —
to issue a single permit enabling the applicant to stay and work.

2.8
To this end, each Member State should designate a
competent authority to receive the application and issue the
single permit, without prejudice to the role and responsibilities
of other national authorities with regard to the examination of
and the decision on the application.

The single permit is to take the harmonised format of
2.9
the residence permit for third-country nationals in accordance
with Regulation (EC) No 1030/2002.

The single permit will entitle its holder to enter and
2.10
stay in the territory of the Member State issuing the single
permit, have free access to the entire territory, pass through
other Member States and to exercise the activities authorised
under the single permit.

2.11 With regard to the single procedure, a number of proce-
dural safeguards are established, such as the need to give
reasons for a decision rejecting the application for a single
permit; in any event — and where this matter falls within the
remit of the Member States — the conditions and criteria on
the basis of which an application for a single permit can be
rejected have to be laid down in national law.

2.12
The directive also lays down the obligation to provide a
means of redress in the event that the application is rejected and
notification of this possibility must be issued in writing together
with the rejection. Information must also be provided regarding
the documents required when submitting the application and
any fees to pay.

2.13 Where rights are concerned, the directive establishes a
minimum requirement for ensuring equal treatment for every
individual granted a single permit, without prejudice to the right
of Member States to adopt more favourable provisions.

— Equal treatment as regards social security covers the benefits
set out in Regulation EC 1408/71, also extending its provi-
sions to persons coming to a Member State directly from a
third country.

— Payment of acquired pensions when moving to a third

country.

— Tax benefits.

— Access to goods and services,

including procedures for
obtaining housing and the assistance afforded by employ-
ment offices.

2.15 Member States may restrict the right to equal treatment:

— by requiring proof of appropriate language proficiency for

access to education and training;

— by restricting rights to study grants;

— by restricting equality in working conditions (including
salary, dismissal and health and safety in the workplace),
freedom of association, tax benefits and social security rights
for persons engaged in a specific occupation.

2.16
As regards the recognition of diplomas, the proposal
grants equal treatment in accordance with national procedures
and refers to Directive 2005/36/EC, which states that a third-
country national who acquired qualifications in other Member
States should have them recognised in the same way as for
EU citizens.

2.17 With regard to equal access to goods and services made
available to the public including both public and private-sector
housing, Member States may restrict the right to public housing
to third-country nationals who have been staying in the
Member State concerned for at least three years.

Lastly,

the proposed directive guarantees respect

2.18
for
more favourable provisions in Community agreements or inter-
national instruments, including those adopted by the Council of
Europe and which apply to third-country migrant workers who
are nationals of Council of Europe member countries. The
proposal is also without prejudice to more favourable provisions
contained in international conventions prohibiting discrimina-
tion on the basis of national origin.

2.14
enjoy equal treatment with nationals at least with regard to:

The directive stipulates that third-country workers shall

3. General comments

— Working conditions, including pay and dismissal as well as

health and safety at the workplace.

— Freedom of association and affiliation and membership of
an organisation representing workers or employers or of any
professional organisation.

— Education and vocational training.

— Recognition of diplomas, certificates and other professional
in accordance with the relevant national

qualifications
procedures.

3.1
the
The EESC has proposed that The Council of
European Union should abandon the unanimity requirement
and adopt its decisions by qualified majority and co-decision
with the Parliament (10). This is the only way to draft good legis-
lation that represents progress on harmonisation within the EU.

3.2
The Committee welcomes the fact that the Lisbon Treaty
includes legislation on immigration in the ordinary procedure
(a Commission initiative, qualified majority in the Council and
co-decision with Parliament).

(10) See footnote 4.

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3.3
Once the Lisbon Treaty is ratified and enters into force,
the distribution of powers between the EU and the Member
States will be clearer and whereas the Council will adopt deci-
sions by qualified majority and by co-decision with the
Parliament, superseding the current unanimity rule that prevents
truly common legislation from being adopted; the European
Economic and Social Committee proposes that, when adopting
legislation on immigration, the Council use the ordinary proce-
dure (as it did when deciding on legislation on asylum), thus
anticipating the provisions of the Lisbon Treaty.

The EESC proposes that the Council's work on this direc-
3.4
tive take priority over the Directive on highly qualified employ-
ment (COM(2007) 637), and the other sectoral directives, and
also proposes that the Commission speed up its work on the
other directives on admission that it has planned for the coming
months (covering seasonal workers, remunerated trainees and
intra-corporate transferees).

The Committee hopes that the EU will have adequate,
3.5
sufficiently harmonised legislation so that immigration can be
channelled through legal,
in
which third-country nationals are fairly treated, with comparable
rights and obligations to EU citizens.

flexible, transparent procedures,

3.6
The rights and obligations for third-country nationals
contained in the proposed directive, based on equal treatment as
freedom of association,
regards salaries, working conditions,
education and vocational training, represent a good starting
point for future immigration legislation.

recognised as such in the rest of the EU. The EESC recommends that
the legislation keep bureaucracy to a minimum and make things easy
for the persons concerned, i.e. the migrants, employers and authorities.
It would be advisable to have a single permit, namely, the residence
permit, which would be combined with a work permit’.

4.4 With regard to rights, in the opinion on the Green Paper
referred to above, the EESC already stated that: ‘The starting point
for this debate must be the principle of non-discrimination. Migrant
workers, whatever the period for which they are authorised to reside
and work, must have the same economic, labour and social rights as
other workers’. The Committee wishes to highlight the role of the
social partners at the different levels (business, sector, national
and European) in promoting equal treatment at work. The EESC
held a hearing, in conjunction with the Dublin Foundation and
the social partners, the conclusions of which were set out in
another opinion (12).

The opinion on the Green Paper (13) stated that: ‘In specific
4.5
terms, the EESC proposes a series of rights that should be granted to
third-country nationals temporarily and legally working and residing
within the EU’. The Committee wishes to point out that immi-
grant workers pay taxes to the national authorities of their host
country,
security
in addition to employment-related social
contributions, in line with Member State legislation.

4.6
In addition to equal treatment in the workplace (working
conditions, salaries and dismissals, health and safety at work,
rights of association, etc.), the EESC also proposed including:

— ‘the right to social security, including healthcare;

— the right to have access to goods and services, including housing,

under the same conditions as nationals;

4. Specific comments

— access to education and vocational training;

4.1
The EESC considers that this horizontal directive, which
includes a single procedure and a set of rights for third-country
workers residing legally in a Member State, is crucial for the EU
in order to cement the bases for a common policy on economic
migration. The proposal for a directive respects the Member
States' right to determine the number of immigrants that they
wish to admit.

4.2
the
The EESC wishes to highlight the importance of
Commission's proposal for providing the EU with horizontal
legislation on the admissions procedure and on the rights of
third-country workers residing in Member States' territory.

In its opinion on the Green Paper (11) the EESC expressed
4.3
for a single procedure for immigration for the
its support
purpose of employment:
‘The relationship between residence and
work permits shows clear differences in the various Member States. The
EESC believes that harmonised legislation is needed for the EU. The
issuing permits would be that of each
authority responsible for
should be
Member State. Permits granted by a Member State

(11) See footnote 8.

— the recognition of degrees, certificates and qualifications in the

context of Community law;

— the right to the education of minors, including funding and study

grants;

— the right to carry out teaching and scientific research in accordance

with the proposal for a Directive (14);

— the right to free legal aid in cases of need;

— the right of access to a free placement service (public service);

(12) See the EESC opinion of 13/14 September 2006 on Immigration in
the EU and integration policies: cooperation between regional and
local governments and civil
(rapporteur:
Mr Pariza Castaños) (OJ C 318, 23.12.2006).

society organisations

(13) See footnote 8.
(14) See the Proposal for a Commission Directive (COM(2004) 178) on the
admission of third-country nationals to carry out scientific research in
the European Community. See also the EESC opinion of 27.10.2004
on the Commission Communication to the Council and the European
Parliament on the presentation of a Proposal for a Directive and two
Proposals for Recommendations to facilitate the admission of
third-country nationals to carry out scientific research in the European
Community (rapporteur: Ms King) (OJ C 120, 20.5.2005).

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— the right to be taught the language of the host society;

— respect for cultural diversity;

— the right
State.’

to free movement and residence within the Member

In 2004,

the EESC also adopted an own-initiative
4.7
opinion (15) proposing that
the European Union and the
Member States ratify the International Convention on the Protection
of the Rights of All Migrant Workers and Members of their Families,
adopted by the General Assembly of the United Nations in
1990 (16), with the aim of promoting migrant workers' funda-
mental rights not only in Europe but worldwide. The EESC
proposes that the Commission take new steps to ratify the
Convention, in order to strengthen an international system for
immigrant rights.

The Committee proposes that the directive's explanatory
4.8
statement include a new paragraph to the effect that the ILO
rules on immigration law, especially the ILO Conventions on
migrant workers (C 97 and C 143), should be complied with.

The EESC also proposes that

4.9
the directive safeguard
gender equality, which forms part of the Community acquis, as
well as EU anti-discrimination legislation.

Seasonal workers should not be excluded from the
4.10
scope of the directive. Although the Commission is drawing up
a specific directive, the EESC considers that the principle of
equal treatment, especially in the workplace, should also be
guaranteed for this category of worker.

4.11
disagreement with the possibility of
Member States to restrict the right to equal treatment (17),

The Committee wishes to state its concern at and
the directive allowing
in

Brussels, 9 July 2008.

relation to working conditions (including pay and dismissal,
health and safety in the workplace and social security) and as
regards freedom of association. This restriction contradicts the
in Article 2. Such restrictions could also
proposal set out
contravene the principle of non-discrimination. The EESC
considers that, taking account of the case-law of the Court of
Justice of the European Communities, equal treatment is one of
the principles of Community law.

In any event, where restrictions are in place,

4.12
they
should always be interpreted in line with other binding interna-
tional legislation that is more generous, specifically the Universal
Declaration of Human Rights, the International Pact on Civil
and Political Rights or the European Convention on Human
Rights, and with various ILO Conventions and Community and
national laws that are more generous.

4.13
The directive envisages that when a single permit is
this should be done in writing and the individual
rejected,
concerned should be able to challenge the decision in the
Member State's courts. The Committee proposes that for a judi-
cial decision rejecting the renewal, suspension or withdrawal of
the single permit on the basis of criteria specified in national or
Community law (18), the administrative decision should be post-
poned until the judgment is final.

4.14
Lastly, the EESC wishes to highlight the importance of
integration. It has drawn up a number of own-initiative opinions
promoting integration policies (19) and has held conferences and
hearings on the subject. The EU and the national authorities
should work together to promote integration policies, because
integration, the promotion of equal treatment and the fight
against discrimination are all challenges facing European society,
especially local authorities, social partners and civil society orga-
nisations. The Committee
is working together with the
European Commission to set up the European Integration
Forum (20).

The President

of the European Economic and Social Committee

Dimitris DIMITRIADIS

(15) See the EESC opinion of 30 June 2004 on the International Conven-
(OJ C 302,

tion on Migrants (rapporteur: Mr Pariza Castaños)
7.12.2004).

(16) Resolution 45/158 of 18 December 1990, which entered into force on

1 July 2003.

(17) Art. 12-2.

(18) Art. 8.
(19) EESC opinion of 21 March 2002 on Immigration, integration and
the role of civil society organisations (rapporteur: Mr Pariza Castaños)
(OJ C 125, 27.5.2002).
EESC opinion of 10/11 December 2003 on the Communication
from the Commission to the Council, the European Parliament, the
European Economic and Social Committee and the Committee of
the Regions on immigration,
employment
(rapporteur: Mr Pariza Castaños) (OJ C 80, 30.3.2004).
EESC opinion of 13/14 September 2006 on Immigration in the EU
and integration policies: cooperation between regional and local
governments and civil society organisations (rapporteur: Mr Pariza
Castaños) (OJ C 318, 23.12.2006).
Conference on ‘The role of civil society in promoting integration’,
Brussels, 9 and 10 September 2002.
(20) http://integrationforum.teamwork.fr/.

integration and