COMMISSION STAFF WORKING DOCUMENT SUBSIDIARITY GRID Accompanying the document Proposal for a Regulation of the European Parliament and of the Council establishing an EU Talent Pool
Date: 2023-11-15
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: foreign national, information system, job application, job vacancy, labour shortage, occupational migration, professional qualifications, recruitment, skilled worker, third country

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  EN 

   EUROPEAN COMMISSION  Brussels, 15.11.2023  SWD(2023) 716 final  COMMISSION STAFF WORKING DOCUMENT SUBSIDIARITY GRID Accompanying the document Proposal for a Regulation of the European Parliament and of the Council establishing an EU Talent Pool {COM(2023) 716 final} - {SEC(2023) 716 final} - {SWD(2023) 717 final} - {SWD(2023) 718 final}  
 
 
1.  Can the Union act? What is the legal basis and competence of the Unions’ intended 

action? 

1.1 Which article(s) of the Treaty are used to support the legislative proposal or policy 
initiative? 

The legal basis for Union action is Article 79(2) (a) TFUE. This provision gives the power to the 
European Parliament and the Council, acting in accordance with the ordinary legislative procedure 
to adopt measures in the area of the conditions of entry and residence of third country nationals.  

The EU Talent Pool aims at facilitating international recruitment of third country nationals residing 
abroad and wishing to work in the EU. As finding a job and obtaining a job offer is in most cases a 
pre-condition for third country nationals to acquire a right of entry and residence in a Member State 
for employment reasons, the action of the Union legislator which makes it easier for a third country 
national to receive a job offer from an employer in a Member State, as is the case of the EU Talent 
Pool,  allows  third  country  nationals  to  fulfil  this  condition.  The  envisaged  action  of  the  Union 
legislator  therefore falls  within the area  of the conditions  of entry  and  residence  of  third country 
nationals.  

1.2 Is the Union competence represented by this Treaty article exclusive, shared or 
supporting in nature? 

Legal  migration  is  an  area  of  shared  competence  between  the  EU  and  the  Member  States  in 
accordance with Article 4 TFEU. Article 79 of the TFEU explicitly empowers the EU to develop a 
common immigration policy aimed at ensuring, at all stages, the efficient management of migration 
flows, fair treatment of third-country nationals residing legally in Member States, and the prevention 
of,  and  enhanced  measures  to  combat,  illegal  immigration  and  trafficking  in  human  beings.  The 
Treaty also reserves explicitly to the Member States the right to set volumes of admission for labour 
migrants they admit. The principle of subsidiarity applies since this is an area of shared competence. 

2.  Subsidiarity Principle: Why should the EU act? 

2.1  Does the proposal fulfil the procedural requirements of Protocol No. 21: 

-  Has there been a wide consultation before proposing the act? 
- 

Is there a detailed statement with qualitative and, where possible, quantitative indicators 
allowing an appraisal of whether the action can best be achieved at Union level? 

Between March and June 2023, the Commission organised extensive targeted consultations to inform 
the  Impact  Assessment  on  the  EU  Talent  Pool.  These  consultations  involved  a  wide  range  of 
stakeholders  including  EU  institutions  and  agencies,  international  organisations,  competent 
authorities  in  the  Member  States,  non-governmental  organisations,  economic  and  social  partners, 
trade unions, and employers’ associations. 

The  EU  Talent  Pool  proposal  also  builds  on the  input  collected during  previous  consultations, in 
particular the Public Consultation on legal migration conducted in 2020 in the framework of the New 
Pact  on  Migration  and  Asylum2.  This  public  consultation  aimed  to  identify  areas  where  the 
framework on legal migration could be strengthened, including through the EU Talent Pool initiative.  

In addition, in the context of the OECD Feasibility Study on the development of a Talent Pool3 in 
2022, extensive consultations were conducted with relevant stakeholders, including relevant public 
and private sector actors, academics, and experts. In the framework of the preparation of the Skills 

1  
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3  

https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12016E/PRO/02&from=EN 
https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12594-Public-consultation-on-legal 
OECD feasibility study on the Talent Pool. 

 
 
 
 
 
and Talent Package4, targeted consultations, including on the EU Talent Pool, were also organised 
with  Member  States,  including  Public  Employment  Services,  and  expert  groups  working  on 
migration related aspects.  

The Commission published on its website ‘Have your Say’5 a Call for Evidence which provided a 
detailed explanation of the planned initiative. A total of 45 stakeholders, including networks, non-
governmental  organisations,  economic  and  social  partners,  local  and  regional  authorities  in  the 
Member States as well as EU citizens, provided their feedback. 

The preparation of an Impact Assessment on the establishment an EU Talent Pool was supported by 
a  study  carried  out  by  an  external  contractor  and  it  was  based  on  desk  research,  interviews,  and 
surveys. 

The Impact Assessment report provides detailed assessment of the subsidiarity principle with regard 
to the necessity of EU action and its added value in Sections 3.2 and 3.3. This information is also 
provided in Section 2 of the explanatory memorandum accompanying the legislative proposal. 

2.2  Does the explanatory memorandum (and any impact assessment) accompanying the 

Commission’s proposal contain an adequate justification regarding the conformity with 
the principle of subsidiarity? 

Yes. As mentioned above, the conformity with the principle of subsidiarity is duly assessed in the 
explanatory memorandum and in the Impact Assessment accompanying the legislative proposal.  

According to the principle of subsidiarity, EU action may only be taken if the envisaged aims cannot 
be achieved by Member States alone but can be better achieved at Union level. The TFEU explicitly 
empowers  the  Union to  develop  a  common  immigration  policy,  so  this  is  a  clear  objective to  be 
pursued at EU level. At the same time, legal migration is an area of shared competence between the 
EU and the Member States, and the Treaty also reserves explicitly to the Member States the right to 
set volumes of admission for labour migrants they admit. The principle of subsidiarity applies since 
this is an area of shared competence6.  

All  Member  States  face  skills  and  labour  shortages  that  are  expected  to  worsen  in  view  of  the 
demographic challenges and requirements of the twin transition (green and digital). They are already 
overstretched  in  addressing  these  challenges,  including  via  legal  migration.  The  insufficient 
recruitment of skilled job seekers from third countries through existing labour migration channels to 
address  labour  and  skills  shortages  has  a  strong  cross-border  component.  The  EU  labour  market 
operates in the context of the single market, which is cross-border in nature.  

While some Member States already recognised the key role of legal migration and have developed 
talent  attraction  policies,  national  initiatives  and  policies  to  improve  international  recruitment  of 
jobseekers from third countries are widely fragmented and vary across Member States with regard to 
their focus and scale of intervention. Only a few Member States have digital platforms and talent 
attraction tools at national level that specifically target job seekers from third countries by offering 
job-search support and information relevant for international recruitment. However, they often have 
limited functionalities and are limited in scope as they are mostly targeted to highly skilled workers 
(while shortages facing the EU labour market concern all skill levels). In addition, those tools are 
focused on the national labour markets, hence not addressing the EU dimension of the issue and using 
the economies of scale EU cooperation can offer in attracting jobseekers from third countries.  

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COM/2022/657 final.  
https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/13716-EU-Talent-Pool_en 
However,  any  measure  proposed  in  the  area  of  legal  migration  “shall  not  affect  the  right  of  Member  States  to 
determine volumes of admission of third-country nationals coming from third countries to their territory in order to 
seek work, whether employed or self-employed” (Article 79(5) TFEU). 

 
 
 
 
 
 
 
 
Therefore,  the  insufficient  recruitment  of  jobseekers  from  third  countries  cannot  be  addressed 
sufficiently by individual Member States. Member States acting alone, especially smaller Member 
States with less visibility worldwide, may not be able to attract potential workers from third countries. 
Initiatives at national level would not effectively address labour shortages across the EU, whereas a 
single EU platform could help connect and bridge the gap between the supply of potential labour 
from third countries and EU demand, thus attracting foreign talent to a greater extent to what Member 
States acting alone would achieve. Furthermore, there is a lack of coordination and fragmentation 
when considering the different national or private platforms that exist, which could only be overcome 
by an EU-level platform providing a comprehensive and streamlined approach. 

The EU as a whole is more attractive for third country nationals interested in migration than the sum 
of its Member States individually. The EU Talent Pool, as a single EU-wide job matching platform 
offering also transparent information on immigration and recruitment processes as well as support 
services  would  improve  the  overall  efficiency  of  labour  migration  management  at  EU  level  and 
promote the EU as a destination for foreign workers. Thanks to the economies of scale that can be 
achieved, the EU would be better equipped to compete on the global stage in attracting foreign talent. 
This will ensure that a greater number of potential candidates with the right skills are encompassed, 
and the labour needs of employers in each Member State are better addressed. It would send a clear 
message to job seekers from third countries that the EU welcomes them in its labour market, while 
providing protection against unfair recruitment. 

2.3  Based on the answers to the questions below, can the objectives of the proposed action be 

achieved sufficiently by the Member States acting alone (necessity for EU action)? 

As measures to activate the inactive EU population and intra-EU mobility are not sufficient to address 
labour and skills shortages in the EU,  the increasing ageing and shrinking of the labour force has 
become a common concern across the Union, particularly in the context of the twin transition, where 
green and digital skills are crucial to achieving the Union’s objectives. Member States acting alone, 
especially  smaller  Member  States  with  less  visibility  worldwide,  may  not  be  able  to  attract  third 
country nationals from abroad. Although some digital platforms and talent attraction tools have been 
set up at national level, they exist in only a few Member States and are limited in scope (e.g. focusing 
mainly on highly-skilled workers), while shortages the EU labour market is facing concern all skill 
levels. The development of an EU Talent Pool would therefore have a number of positive effects that 
could not be realised by Member States acting alone.  

(a)  Are there significant/appreciable transnational/cross-border aspects to the problems being 

tackled? Have these been quantified? 

The  insufficient  recruitment  of  jobseekers  from  third  countries  through  existing  labour  migration 
channels to address labour and skills shortages has a strong cross-border component. The EU labour 
market operates in the context of the single market, which is cross-border in nature. The insufficient 
recruitment of third country nationals cannot be addressed sufficiently by individual Member States. 

(b)  Would national action or the absence of the EU level action conflict with core objectives of 

the Treaty7 or significantly damage the interests of other Member States? 

The Union and the Member States need skilled  workers in order to achieve the digital and green 
transition. Nonetheless, EU employers are facing structural labour and skills shortages in various 
sectors (e.g., IT, health, tourism) and the EU twin transition creates a high demand for specific skills. 
In  addition,  the  EU  has  an  ageing  and  shrinking  working-age  population.  These  trends  increase 
pressure on the labour markets, undermining the overall competitiveness and economic growth of 

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https://europa.eu/european-union/about-eu/eu-in-brief_en  

 
 
 
 
 
the  EU.  Action  at  the  EU  level  would  complement  and  reinforce  activities  to  attract  talent  from 
abroad taken by the Member States. 

(c)  To what extent do Member States have the ability or possibility to enact appropriate 

measures? 

Some  Member  States  already  recognised  the  key  role  of  legal  migration  and  developed  talent 
attraction policies which include specific schemes to streamline migration processes, the exclusion 
from the labour market test for certain shortage occupations and, in few instances, international job 
matching platforms. Overall, the lack of a harmonised approach together with the potentially limited 
visibility  of  existing  national  platforms  at  the  global  level  reduce  the  Member  States’  ability  to 
achieve economies of scale when developing talent attraction policies individually. This initiative 
would not replace national initiatives and platforms in the context of international recruitment nor 
define  Member  States’  talent  attraction  policies.  As  a  voluntary  tool  to  facilitate  international 
recruitment, the EU Talent Pool would offer additional support at EU level. Hence, Member States 
would be able to maintain their tools in place and complement them with the new platform.  

(d)  How does the problem and its causes (e.g. negative externalities, spill-over effects) vary 

across the national, regional and local levels of the EU? 

 The prospect of an ageing population and a shrinking working-age population together with other 
inefficiencies linked to the functioning of the labour market pose significant challenges for the EU 
and  its  Member  States.  EU  employers  are  facing  structural  labour  and  skills  shortages  in  many 
professions. While some Member States are already addressing these shortages by re-activating the 
domestic  workforce  and  improving  intra-EU  mobility,  these  efforts  might  be  insufficient  to  fully 
address  existing  and  future  shortages  given  the  magnitute  of  this  challenge.  Therefore,  attracting 
talent and skills from outside the EU is a way to contribute to addressing existing and future labour 
and skills shortages. However, the current level of international recruitment of third country nationals 
from outside the EU through legal migration pathways to address EU labour and skills shortages is 
still insufficient. This is linked to several challenges employers and third country nationals face in 
international recruitment.  

(e)  Is the problem widespread across the EU or limited to a few Member States? 

The increase of the ageing and shrinking working-age population is a common concern across the 
Member  States.  Similarly,  all  Member  States  experience  labour  and  skills  shortages,  and  this 
concerns all skills levels. Sectors where the shortages are the most concentrated in the Member States 
are:  healthcare,  construction,  manufacturing  and  services,  transportation  and  information  and 
communication technology. Therefore, the need to help EU employers to find the talents they cannot 
find in the EU labour markets is therefore shared across the Union.  

(f)  Are Member States overstretched in achieving the objectives of the planned measure? 

Member States are overstretched in addressing skills and labour shortages that are expected to worsen 
in  view  of  the  demographic  challenges  and  requirements  of  the  green  and  digital  transition.  As 
mentioned  above,  activation  of  EU  domestic  workforce  and  intra-EU  mobility  is  expected  to  be 
insufficient to fully address current and future shortages.  

(g)  How do the views/preferred courses of action of national, regional and local authorities 

differ across the EU? 

Member States were widely consulted in the preparation of the EU Talent Pool proposal. The added 
value of the EU Talent Pool in supporting Member States to address labour and skills shortages was 
widely  acknowledged  by  the  Member  States  during  the  targeted  consultations.  In  particular,  also 
Member  States  having  similar  platforms  already  in  place,  welcomed  the  initiative  as  a  way  to 
complement their current efforts on international recruitment. The development of a voluntary tool 

 
 
to  which  only  interested  Member  States  may  decide  to  participate  in  was  largely  welcomed  and 
considered be preferred option. In addition, Member States welcomed the option of a demand driven 
tool based on actual labour needs and open to all skills levels whilst targeted to certain occupations 
of EU and national relevance in a first stage with the possibility to expand its scope over time. It was 
acknowledged that EU Talent Pool should also address actual national and regional shortages and 
ensure interoperability with existing national systems. 

2.4  Based on the answer to the questions below, can the objectives of the proposed action be 
better achieved at Union level by reason of scale or effects of that action (EU added 
value)? 

Although some digital platforms and talent attraction tools have been set up at national level, they 
exist in only a few Member States and are limited in scope (e.g. focusing mainly on highly-skilled 
workers), while the EU shortages concern all skill levels, thus not addressing the EU dimension of 
the issue. Overall, the lack of a harmonised approach together with the potentially limited visibility 
of  existing  national  platforms  at  the  global  level  reduce  the  Member  States’  ability  to  achieve 
economies of scale when developing talent attraction policies individually. The proposed EU action 
would allow to better support international recruitment of third-country nationals via legal pathways 
to address EU labour and skills shortages. Hence, it would contribute to the Union’s competitiveness 
and  economic  growth  by  enhancing  the  visibility  of  the  EU  and  Member  States’  legal  migration 
policies at global level and by attracting more third-country nationals from abroad. 

(a)  Are there clear benefits from EU level action?  

The EU Talent Pool will allow the EU and Member States’ legal migration policies to be more visible 
on the global stage. This is particularly relevant for smaller Member States. By providing an EU-
wide platform with a wider range of tools and services to facilitate international recruitment, the EU 
Talent Pool would ensure more visibility of EU employers’ job vacancies at global level as well as a 
making a wider pool of potential candidates available to EU businesses. The EU Talent Pool would 
offer additional support at EU level. Hence, Member States would be able to maintain their tools in 
place and complement them with the new platform. Hence, this initiative would have the added value 
of supporting Member States that are already developing talent attraction policies. Member States 
that do not have a similar tool in place would be able to use the EU Talent Pool instead of setting up 
their own.In addition, the proposed initiative would indirectly contribute to the overall management 
of migration by incentivising cooperation with third countries in the area of migration. 

(b)  Are there economies of scale? Can the objectives be met more efficiently at EU level 

(larger benefits per unit cost)? Will the functioning of the internal market be improved? 

Yes. 

(c)  What are the benefits in replacing different national policies and rules with a more 

homogenous policy approach? 

Member States would be able to maintain their tools in place and complement them with the EU 
Talent Pool. The new platform would offer additional support at EU level with the aim to facilitate 
international recruitment for EU employers, provide opportunities to job seekers from third countries 
including by improving their access to migration rules and procedures, and therefore enable the EU 
to attract skilled workers from abroad to address labour and skills shortages. 

(d)  Do the benefits of EU-level action outweigh the loss of competence of the Member States 
and the local and regional authorities (beyond the costs and benefits of acting at national, 
regional and local levels)? 

Yes. 

 
 
(e)  Will there be improved legal clarity for those having to implement the legislation? 

Yes, there will be an implementing act. 

3. Proportionality: How the EU should act 

3.1   Does the explanatory memorandum (and any impact assessment) accompanying the 

Commission’s proposal contain an adequate justification regarding the proportionality of 
the proposal and a statement allowing appraisal of the compliance of the proposal with 
the principle of proportionality? 

Yes. As mentioned above, the conformity with the principle of subsidiarity is duly assessed in the 
explanatory  memorandum  and  in  the  Impact  Assessment  accompanying  the  legislative  proposal 
(Sections 2.3 and 3.3, respectively).  

This  initiative  would  not  replace  national  initiatives and  platforms  in  the  context  of  international 
recruitment nor define Member States’ talent attraction policies. In addition, as the EU Talent Pool 
does not constitute a new legal migration pathway, it would not affect the right of Member States to 
determine volumes of admission of third country nationals to their territory nor their discretion in 
introducing  labour  market  tests  at  national  level.  As  a  voluntary  tool  to  facilitate  international 
recruitment, the EU Talent Pool would offer additional support at EU level. The initiative is limited 
to those aspects that Member States cannot achieve satisfactorily on their own, and where the Union 
is in a better position to act in view of achieving economies of scale. Hence, Member States would 
be able to maintain their tools in place and complement them with the new platform. This initiative 
would have the added-value of supporting Member States that are already developing talent attraction 
policies. Member States that do not have a similar tool in place would be able to use the EU Talent 
Pool instead of setting up their own. Overall, the EU Talent Pool would allow to attract third country 
nationals’ workers from abroad where labour and skills shortages in the Member States cannot be 
sufficiently filled otherwise. In addition, by providing an EU-wide platform with a wider range of 
tools  and  services  to  facilitate  international  recruitment,  the  EU  Talent  Pool  would  ensure  more 
visibility of EU employers’ job vacancies at global level as well as a making a wider pool of potential 
candidates available to EU businesses.  
In the light of the above, the proposal does not go beyond what is necessary in order to achieve the 
stated objectives. 

3.2  Based on the answers to the questions below and information available from any impact 
assessment, the explanatory memorandum or other sources, is the proposed action an 
appropriate way to achieve the intended objectives? 

The proposed action is based on a voluntary approach, and therefore does not aim at imposing any 
obligation on Member States nor their talent attraction policies. The objective is to offer additional 
support at EU level as this would not be achieved effectively by the Member States alone. 

(a)  Is the initiative limited to those aspects that Member States cannot achieve satisfactorily on 

their own, and where the Union can do better? 

Yes. 

(b)  Is the form of Union action (choice of instrument) justified, as simple as possible, and 

coherent with the satisfactory achievement of, and ensuring compliance with the objectives 
pursued (e.g. choice between regulation, (framework) directive, recommendation, or 
alternative regulatory methods such as co-legislation, etc.)? 

The establishment of an EU-wide platform requires directly applicable rules. Such rules, which are 
sufficiently detailed and should be applied in a uniform manner in all MS, do not require particular 

 
 
 
transposition measures. Therefore, a Regulation is the most appropriate instrument to achieve the 
objectives of the proposal.  

(c)  Does the Union action leave as much scope for national decision as possible while 

achieving satisfactorily the objectives set? (e.g. is it possible to limit the European action to 
minimum standards or use a less stringent policy instrument or approach?) 

Yes, the EU Talent Pool is a voluntary tool for interested Member States. 

(d)  Does the initiative create financial or administrative cost for the Union, national 

governments, regional or local authorities, economic operators or citizens? Are these costs 
commensurate with the objective to be achieved? 

Yes, as assessed in the impact assessment, the EU Talent Pool will generate additional costs for the 
Union and national authorities. However, these would be reduced by re-using some of the existing 
EURES IT components. For EU employers, the EU Talent Pool would imply cost savings related to 
the time and effort saved throughout the entire recruitment process. 

(e)  While respecting the Union law, have special circumstances applying in individual 

Member States been taken into account? 

No, as there are no such special circumstances in the aspects addressed by the proposal.