Tineke Strik: The EU could be an ally in the struggle for social equality The Green European Foundation, Bureau de Helling and the GroenLinks working group on Europe venture “deeper into Europe” in a series of six lectures. In the fifth lecture, Tineke Strik, a Member of the Dutch upper house of parliament, a member of the Parliamentary Assembly of the Council of Europe and a lecturer in law at Radboud University, addressed the “time bomb of social inequality” noted in an earlier lecture by MEP Philippe Lamberts. She examined the relation between Dutch and European law from the standpoint of a Senator and jurist.
The principle of free movement of workers All we have as regards EU social policy derives from the pursuit of a single internal labour market. The foundations of the single market were laid down in the European Economic Community Treaty of 1957. The treaty defined four fundamental economic freedoms of EEC citizens: the free movement of workers, of services, of capital and of goods in Europe. This ambition did not come to fruition until 1992, when the internal market was finally established in the Treaty of Maastricht. Along with the freedoms, standards of living and the labour conditions of all workers had to be improved. A level playing field was imperative so that nationals of every member state would have equal opportunities on the European labour market. This meant setting Europe-wide minimum standards, for example for working conditions. That is the reason why Europe has a social policy. Another consequence of the internal market was the need to abolish border checks within the EEC. This automatically raised the question of what to do about persons coming from outside the Union: once someone has entered a member country, should they be allowed to travel freely across all the internal borders? A harmonized approach to third-country nationals was therefore legislated in 1985. All these things – the free movement of EU citizens, the social policies and immigration policy towards third-country nationals – are consequences of the unified internal labour market. The 1992 Treaty of Maastricht expanded the right to the free of movement of workers into a right for the free movement of persons. Since then, EU citizens who are
not economically active can also reside in other member states. Labour market policy A multitude of EU directives exist for the labour market and working conditions, including those affecting workplace safety, working hours and health. These directives are often highly detailed and technical in nature. For example, one directive specifies exactly how many decibels are consistent with a safe working environment. There is also a Pregnant Workers Directive defining the length of maternity leave for female workers. The question of equality in the labour market has also attracted EU attention. “We have had legislation for the equal treatment of men and women in the workplace since 1975,” Strik says. “In the Netherlands, it has had major consequences for pensions and wages.” Similar provisions exist for the self-employed, as well as legislation against labour market discrimination on other grounds such as race, religion, sexual orientation, disability or age. “Kathelijne Buitenweg has done her best to get the directive on labour market equality extended to cover discrimination outside the workplace. She successfully garnered a majority in favour of this measure in the European Parliament. But the proposal fell foul of the member states, whose governments feared the financial consequences. Such efforts against discrimination create a dilemma for the Euro-sceptic parties: should they support equal treatment for gays in Poland, for instance, or must their anti-European sentiment be paramount?” Social rights The Charter of Fundamental Rights declares a number of social rights for EU citizens. The Charter became legally binding through the Lisbon Treaty of 2007. The treaty has most to say about social policy under the heading of solidarity. It defines rights relating to unfair dismissal and to worker participation. The applicability of this treaty is limited to situations involving EU legislation. As a Dutch citizen, you fall under EU law as soon as you move across the border or take a job in another EU country. Then you are covered directly by the directives on free movement and the Charter of Fundamental Rights. Stay-at-home EU citizens, by contrast, are bound by their own national legislation. In some situations this produces a kind of inverse discrimination, in which EU citizens living in a given country are actually better off than nationals of that country. Suppose you fall in love with someone from outside the EU and you wish to bring that person to live with you in Holland. Under Dutch law, he or she must pass a citizenship exam while abroad, must have an income and must surmount countless other obstacles. But if you were to move to neighbouring Belgium for a while, you could simply send an invitation to your partner who is then free to join you there. This is
Tineke Strik: The EU could be an ally in the struggle for social equality
because the EU directive on the freedom of movement says that once you avail yourself of that freedom, you are allowed to reunite with family members without preconditions – even if they come from outside the EU. So after a short stay in Belgium you could move back to the Netherlands with your partner. The European Social Charter issued by the Council of Europe also mentions social rights, such as the entitlement to equal pay for equal work. Member states must take account of the European Social Charter when applying Union law. All EU members are also members of the Council of Europe. The European Social Charter has had some far-reaching consequences, Strik explains. “Defence for Children appealed to the European Committee of Social Rights, which monitors compliance with the European Social Charter, because the Netherlands was denying residence to children whose asylum applications had been dismissed. The Charter includes a right of residence clause. The committee found in favour of Defence for Children: no member state is allowed to send a child or a member of other vulnerable categories back, even if they lack a residence permit. The committee’s findings are not strictly binding, but the courts evidently respect them. They take them into account when applying Dutch law. In response to the judgement on child asylum seekers, the Dutch government was forced to adjust its policy.” The keyword: coordination Coordination is the keyword of the European Union’s social policy. That means making policy recommendations, exchanging best practices and benchmarking, although without committing to binding decisions on the details of the social policy. A number of strategic visions, such as Europe 2020, have in fact been published. Europe 2020 targets improved macroeconomic stability, mainly with priorities such as increased employment and innovation, although it also addresses the social aspect. The member states must, according to the report, take action to fight poverty and to eliminate social inequality. The concrete plans pay minimal attention to these objectives, however. There are also guidelines relating to employment. For example, the Commission focuses on employability: workers must be adaptable to changed circumstances. The member countries specify action plans for these points, after which the Commission evaluates how well the plans adequately address the problems. The Commission can exert pressure by publishing its advice, although its recommendations are not binding. The European Structural Funds and Cohesion Fund are, when it comes down to it, purely subsidising measures for investing in the poorest regions in order to stimulate their economies. Harmonising labour markets brings with it a serious risk of provoking internal competition in social matters.
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Naturally, every country wants to have the best possible investment climate. Germany, for instance, long succeeded in attracting industry by keeping wages low. But other national economies suffered from the resulting drain on their labour forces. Strik has the solution: “If social policy were better coordinated between countries, the EU could then be an ally in the struggle for social equality.” The Stability and Growth Pact specifies indicators which the European Commission can look at when judging whether a member country is on the right track. Certain indicators, namely those of unemployment and labour cost development, are mentioned recurrently in relation to social policy. Now we are setting more stringent rules but it is open to question how binding they are. Budgets have been set aside however, for example for cutting youth unemployment. Strik warns of potential hazards in the binding rules coupled with the bail-out packages agreed with Greece and other countries. “Greece has had to reduce wages under the terms of the rescue programme. The plans of action are in the end concerned almost only with finance. The rules are so strict that we risk driving Greece and other programme countries to infringe the European Social Charter in order to meet European Commission requirements. Social policy is thus sacrificed to economic growth.” But what about a European minimum wage? The Netherlands plays a role which impedes its realisation, according to Strik. “The European Union ought to have minimum standards for social welfare and minimum wages. The aim is to prevent people from sinking below a certain minimum. Striving for greater equality is a political choice. The Dutch government is against the EU taking action towards a minimum wage. France and Germany, on the other hand, have declared that the subject of a European minimum wage is no longer taboo.” The free movement of EU citizens The right to free movement was declared in order to remove all impediments to European Union citizens taking jobs in other member countries. “Many people take advantage of the right to free movement,” Tineke Strik said. I recently read in the well-known Dutch daily De Telegraaf that many Dutch people are going to Germany to find work due to the crisis. That was the idea: people are supposed to go where there is a need, and when there is no more work they come back home.” EU citizenship was established by the Treaty of Lisbon. If you are a national of any of the EU member countries, you are simultaneously an EU citizen. Every EU citizen is entitled to travel and reside freely anywhere in the Union, subject to certain limitations and conditions. So the freedom of movement does not apply only to workers but to anyone, as long as they do not become a burden on the welfare system. “If you draw a pension,” Strik explained,
Tineke Strik: The EU could be an ally in the struggle for social equality
“you are welcome go and live on the Bulgarian Black Sea coast. Students can live anywhere, as long as they have their own source of income.” If you stay in another member state as an employee or as self-employed, and then become unemployed, it doesn’t mean you have to leave immediately. You can stay as long as you do not form an unreasonable burden on the social welfare system; and you can certainly stay while you are seeking work. The free movement of persons has applied to Romanians and Bulgarians since 1 January 2014. When a new country joins the union, the right to free movement is immediately applicable to entrepreneurs. In the case of employees, other member countries can defer the entitlement for up to seven years. The Netherlands applied the maximum deferment to Romanians and Bulgarians. Lodewijk Asscher, the Dutch Minister of Social Affairs and Employment, expressed concern about the implications for our welfare services on account of the “many” benefit fraudsters. Asscher joined the ministers from Germany, Denmark and the UK in asking the European Commission if the directive could be modified. In her response, Viviane Reding, the Commissioner for Justice, Fundamental Rights and Citizenship, proved adamant: “Only a tiny percentage of EU Citizens draw social benefits in these countries.” The free movement of workers is better for social policy than Asscher would lead us to expect, according to Strik. “If the market is open for the self-employed but not for employees, that is practically an invitation to fraud. More checks have to be carried out for bogus self-employment, and the labour inspectorate is understaffed. After seven years, there is much less temptation to commit this kind of misrepresentation, because people can come as ordinary employees.” Family reunification The Treaty of Amsterdam (1997) set binding rules for third-country nationals; previously the rules had applied only to EU citizens. Among other things, the treaty proposed the establishment of an Area of Freedom, Security and Justice. Besides entailing rules for thirdcountry nationals, this meant enhanced police cooperation, minimum standards for asylum and migration, and minimum standards for extradition, legal aid and interpreters. The rules for third-country nationals include a right to family reunification, as laid down in the Family Reunification Directive. This directive states what requirements member states are allowed to impose on family members seeking to join their relatives in the EU. The Netherlands imposed a lower minimum income limit for the resident family member of 120% of the minimum wage. The European Court overthrew this requirement, reducing it back to 100%, and the Netherlands was also told to take individual circumstances into account. The
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court based its decision on the Family Reunification Directive, which also states that immigrant family members have a right to take jobs and education, and are entitled to a residence permit after five years. The standpoint of the member state governments was that third-party nationals ought to enjoy the strongest possible position, a position nearly as good as that of EU citizens. Strik thinks they have succeeded in this. “In the negotiations, every official sent to Brussels was charged with a mission: ‘make sure we don’t have to change our legislation. Make sure we export our law so that the others can’t force us to change anything.’ As a result the legislation was full of exclusion clauses. The member states could count themselves lucky: the Court interpreted the regulations as implying a substantial right. The Left should be very pleased with Europe on this point.” The outcome has been a substantially higher level of protection in the new and the southern member states, with much greater legal certainty. Right to asylum We already had the UN Convention relating to the Status of Refugees and the European Convention on Human Rights. It gave an asylum seeker the right to protection in situations where expulsion would put that person in danger. Besides the Human Rights convention, the EU has drawn up four important directives and treaties to embody the Union’s asylum policy. The Qualification Directive establishes not only the right to protection but also the right to a residence permit. The Asylum Procedures Directive gives many good, concrete guarantees about the asylum procedure. Besides the processing of asylum requests, it establishes an entitlement to the presence of interpreters at interviews, so that asylum seekers are able to state their case. There is also a right to appeal; in this respect the Netherlands still has to modify its legislation, because the scope for appeal has been extremely limited. “We certainly aren’t always the best behaved kid in the class,” Strik admits. The Dublin Convention determines who goes where. It establishes which member state is responsible for an asylum seeker. The rule is simple: the country where the asylum seeker first arrives in Europe is responsible for handling the asylum request. This rule means that Greece and Italy have an interest in not ordering their affairs properly – the European Court of Justice has decided that member countries are not allowed to send someone back to Greece because it does not stick to the rules. Tineke Strik does not mince her words about this: “If you make the rules unreasonable, you end up with this sort of paradox.” The Lisbon Treaty went a step further. The reception of asylum seekers now had to become a single system. The problems of Dublin would have been soluble if a uniform status for asylum seekers had been implemented. Strik describes the current common procedures as bizarre.
Tineke Strik: The EU could be an ally in the struggle for social equality
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“An asylum seeker may have a 90 percent chance of admission in Sweden but only 10 percent in Belgium. That depends totally on the authorities in the country concerned. We really must iron out the differences.”
agreements with Libya, but the upshot is that no one can leave Libya. People do not get what they are entitled to there, and on top of that they are prohibited from going to Europe. So effectively they have no way out.”
Europe now has good legislation for its asylum policy, but how does it work out in practice? Internal border controls no longer take place in Europe. The EU concludes mobility agreements with the transit countries, making them responsible for illegal immigrants to Europe who have travelled through their territory and obliging them to accept them back. A transit country like Morocco responds by sealing its southern frontiers more tightly. People are arrested and dropped at arbitrary locations in the desert, so that it will take a long time before they can make a renewed attempt of seeking asylum.
People are forced to travel to Europe in dangerous circumstances. That results in many fatalities on the Mediterranean Sea. “I did a study two years ago for the Council of Europe about a small boat full of African refugees which drifted around on the Mediterranean Sea for fifteen days. They had been forced to leave Libya when war broke out there. A military helicopter, two fishing boats and a naval vessel passed by but did nothing. The passengers on the drifting boat tried to signal their plight as best they could, but the ships and fishing boats stuck to their course. To me this is a very serious problem. We must assure people of entry in some or other way. The UN Convention on refugees says that people are entitled to an asylum procedure. They must have recourse to the procedure, after which according refugee status can be considered. You can’t repel them at sea; first you have to rescue them and give them the opportunity to request protection. I’m not saying that everyone should be admitted, but they must first have access in order to apply for protection.”
The European Union makes the transit countries responsible without considering whether human rights are honoured there. The asylum seekers have no recourse to the Charter. “You can’t make a deal like that unless human rights are sufficiently assured,” Strik says. “If that’s how you want to do it, you must make sure that human rights are respected. Italy has bilateral
This text was written by Simon Otjes, following a lecture by Tineke Strik on February 3rd in Utrecht. © Green European Foundation, March 2 014 The views expressed in this article are those of the authors’ alone. They do not necessarily reflect the views of the Green European Foundation. With support of the European Parliament. Green European Foundation asbl 1, rue du Fort Elisabeth, 1463 Luxembourg Brussels Office: 15 rue d’Arlon, 1050 Brussels, Belgium Phone: +32 2 234 65 70 - Fax: +32 2 234 65 79 E - mail: info@gef.eu - Web: www.gef.eu