Tineke Strik: The EU could be an ally not economically active can also reside in other member states. in the struggle for social equality Labour market policy A multitude of EU directives exist for the labour market and working conditions, including those affecting The Green European workplace safety, working hours and health. These Foundation, Bureau de directives are often highly detailed and technical in Helling and the nature. For example, one directive specifies exactly how GroenLinks working many decibels are consistent with a safe working group on Europe venture environment. There is also a Pregnant Workers Directive “deeper into Europe” in a defining the length of maternity leave for female series of six lectures. workers.

In the fifth lecture, Tineke The question of equality in the labour market has also Strik, a Member of the attracted EU attention. “We have had legislation for the Dutch upper house of equal treatment of men and women in the workplace parliament, a member of the Parliamentary since 1975,” Strik says. “In the , it has had Assembly of the Council of Europe and a lecturer in major consequences for pensions and wages.” Similar law at Radboud University, addressed the “time provisions exist for the self-employed, as well as bomb of social inequality” noted in an earlier lecture legislation against labour market discrimination on other by MEP . She examined the grounds such as race, religion, sexual orientation, relation between Dutch and European law from the disability or age. “Kathelijne Buitenweg has done her standpoint of a Senator and jurist. 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 . But the proposal fell foul of the member states, whose governments The principle of free movement of workers All we have as regards EU social policy derives from the feared the financial consequences. Such efforts against discrimination create a dilemma for the Euro-sceptic pursuit of a single internal labour market. The foundations of the single market were laid down in the parties: should they support equal treatment for gays in

European Economic Community Treaty of 1957. The Poland, for instance, or must their anti-European treaty defined four fundamental economic freedoms of sentiment be paramount?” EEC citizens: the free movement of workers, of services, of capital and of goods in Europe. This ambition did not Social rights come to fruition until 1992, when the internal market was The Charter of Fundamental Rights declares a number of finally established in the Treaty of Maastricht. Along with social rights for EU citizens. The Charter became legally the freedoms, standards of living and the labour binding through the Lisbon Treaty of 2007. The treaty has conditions of all workers had to be improved. A level most to say about social policy under the heading of playing field was imperative so that nationals of every solidarity. It defines rights relating to unfair dismissal member state would have equal opportunities on the and to worker participation. The applicability of this European labour market. This meant setting Europe-wide treaty is limited to situations involving EU legislation. minimum standards, for example for working conditions. That is the reason why Europe has a social policy. As a Dutch citizen, you fall under EU law as soon as you move across the border or take a job in another EU Another consequence of the internal market was the country. Then you are covered directly by the directives need to abolish border checks within the EEC. This on free movement and the Charter of Fundamental automatically raised the question of what to do about Rights. Stay-at-home EU citizens, by contrast, are bound persons coming from outside the Union: once someone by their own national legislation. In some situations this has entered a member country, should they be allowed to produces a kind of inverse discrimination, in which EU travel freely across all the internal borders? A citizens living in a given country are actually better off harmonized approach to third-country nationals was than nationals of that country. Suppose you fall in love therefore legislated in 1985. All these things – the free with someone from outside the EU and you wish to bring movement of EU citizens, the social policies and that person to live with you in Holland. Under Dutch law, immigration policy towards third-country nationals – are he or she must pass a citizenship exam while abroad, consequences of the unified internal labour market. The must have an income and must surmount countless 1992 Treaty of Maastricht expanded the right to the free other obstacles. But if you were to move to neighbouring of movement of workers into a right for the free Belgium for a while, you could simply send an invitation movement of persons. Since then, EU citizens who are 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 2

because the EU directive on the freedom of movement Naturally, every country wants to have the best possible says that once you avail yourself of that freedom, you are investment climate. Germany, for instance, long allowed to reunite with family members without succeeded in attracting industry by keeping wages low. preconditions – even if they come from outside the EU. So But other national economies suffered from the resulting after a short stay in Belgium you could move back to the drain on their labour forces. Strik has the solution: “If Netherlands with your partner. social policy were better coordinated between countries, the EU could then be an ally in the struggle for social The European Social Charter issued by the Council of equality.” Europe also mentions social rights, such as the entitlement to equal pay for equal work. Member states The Stability and Growth Pact specifies indicators which must take account of the European Social Charter when the European Commission can look at when judging applying Union law. All EU members are also members whether a member country is on the right track. Certain of the Council of Europe. The European Social Charter indicators, namely those of unemployment and labour has had some far-reaching consequences, Strik explains. cost development, are mentioned recurrently in relation “Defence for Children appealed to the European to social policy. Now we are setting more stringent rules Committee of Social Rights, which monitors compliance but it is open to question how binding they are. Budgets with the European Social Charter, because the have been set aside however, for example for cutting Netherlands was denying residence to children whose youth unemployment. Strik warns of potential hazards in asylum applications had been dismissed. The Charter the binding rules coupled with the bail-out packages includes a right of residence clause. The committee agreed with Greece and other countries. “Greece has had found in favour of Defence for Children: no member state to reduce wages under the terms of the rescue is allowed to send a child or a member of other programme. The plans of action are in the end concerned vulnerable categories back, even if they lack a residence almost only with finance. The rules are so strict that we permit. The committee’s findings are not strictly binding, risk driving Greece and other programme countries to but the courts evidently respect them. They take them infringe the European Social Charter in order to meet into account when applying Dutch law. In response to the European Commission requirements. Social policy is judgement on child asylum seekers, the Dutch thus sacrificed to economic growth.” government was forced to adjust its policy.” But what about a European minimum wage? The The keyword: coordination Netherlands plays a role which impedes its realisation, Coordination is the keyword of the European Union’s according to Strik. “The European Union ought to have social policy. That means making policy minimum standards for social welfare and minimum recommendations, exchanging best practices and wages. The aim is to prevent people from sinking below a benchmarking, although without committing to binding certain minimum. Striving for greater equality is a decisions on the details of the social policy. A number of political choice. The Dutch government is against the EU strategic visions, such as Europe 2020, have in fact been taking action towards a minimum wage. France and published. Europe 2020 targets improved Germany, on the other hand, have declared that the macroeconomic stability, mainly with priorities such as subject of a European minimum wage is no longer increased employment and innovation, although it also taboo.” addresses the social aspect. The free movement of EU citizens The member states must, according to the report, take The right to free movement was declared in order to action to fight poverty and to eliminate social inequality. remove all impediments to European Union citizens The concrete plans pay minimal attention to these taking jobs in other member countries. “Many people objectives, however. There are also guidelines relating to take advantage of the right to free movement,” Tineke employment. For example, the Commission focuses on Strik said. I recently read in the well-known Dutch daily employability: workers must be adaptable to changed De Telegraaf that many Dutch people are going to circumstances. The member countries specify action Germany to find work due to the crisis. That was the idea: plans for these points, after which the Commission people are supposed to go where there is a need, and evaluates how well the plans adequately address the when there is no more work they come back home.” problems. The Commission can exert pressure by publishing its advice, although its recommendations are EU citizenship was established by the Treaty of Lisbon. If not binding. The European Structural Funds and you are a national of any of the EU member countries, Cohesion Fund are, when it comes down to it, purely you are simultaneously an EU citizen. Every EU citizen is subsidising measures for investing in the poorest regions entitled to travel and reside freely anywhere in the Union, in order to stimulate their economies. subject to certain limitations and conditions. So the freedom of movement does not apply only to workers but Harmonising labour markets brings with it a serious risk to anyone, as long as they do not become a burden on the of provoking internal competition in social matters. welfare system. “If you draw a pension,” Strik explained, Tineke Strik: The EU could be an ally in the struggle for social equality 3

“you are welcome go and live on the Bulgarian Black Sea court based its decision on the Family Reunification coast. Students can live anywhere, as long as they have Directive, which also states that immigrant family their own source of income.” If you stay in another members have a right to take jobs and education, and are member state as an employee or as self-employed, and entitled to a residence permit after five years. The then become unemployed, it doesn’t mean you have to standpoint of the member state governments was that leave immediately. You can stay as long as you do not third-party nationals ought to enjoy the strongest form an unreasonable burden on the social welfare possible position, a position nearly as good as that of EU system; and you can certainly stay while you are seeking citizens. Strik thinks they have succeeded in this. “In the work. negotiations, every official sent to Brussels was charged with a mission: ‘make sure we don’t have to change our The free movement of persons has applied to Romanians legislation. Make sure we export our law so that the and Bulgarians since 1 January 2014. When a new others can’t force us to change anything.’ As a result the country joins the union, the right to free movement is legislation was full of exclusion clauses. The member immediately applicable to entrepreneurs. In the case of states could count themselves lucky: the Court employees, other member countries can defer the interpreted the regulations as implying a substantial entitlement for up to seven years. The Netherlands right. The Left should be very pleased with Europe on this applied the maximum deferment to Romanians and point.” The outcome has been a substantially higher level Bulgarians. Lodewijk Asscher, the Dutch Minister of of protection in the new and the southern member states, Social Affairs and Employment, expressed concern about with much greater legal certainty. the implications for our welfare services on account of the “many” benefit fraudsters. Asscher joined the Right to asylum ministers from Germany, Denmark and the UK in asking We already had the UN Convention relating to the Status the European Commission if the directive could be of Refugees and the European Convention on Human modified. In her response, Viviane Reding, the Rights. It gave an asylum seeker the right to protection in Commissioner for Justice, Fundamental Rights and situations where expulsion would put that person in Citizenship, proved adamant: “Only a tiny percentage of danger. Besides the Human Rights convention, the EU EU Citizens draw social benefits in these countries.” has drawn up four important directives and treaties to embody the Union’s asylum policy. The free movement of workers is better for social policy than Asscher would lead us to expect, according to Strik. The Qualification Directive establishes not only the right “If the market is open for the self-employed but not for to protection but also the right to a residence permit. The employees, that is practically an invitation to fraud. More Asylum Procedures Directive gives many good, concrete checks have to be carried out for bogus self-employment, guarantees about the asylum procedure. Besides the and the labour inspectorate is understaffed. After seven processing of asylum requests, it establishes an years, there is much less temptation to commit this kind entitlement to the presence of interpreters at interviews, of misrepresentation, because people can come as so that asylum seekers are able to state their case. There ordinary employees.” is also a right to appeal; in this respect the Netherlands still has to modify its legislation, because the scope for Family reunification appeal has been extremely limited. “We certainly aren’t The Treaty of (1997) set binding rules for always the best behaved kid in the class,” Strik admits. third-country nationals; previously the rules had applied only to EU citizens. Among other things, the treaty The Dublin Convention determines who goes where. It proposed the establishment of an Area of Freedom, establishes which member state is responsible for an Security and Justice. Besides entailing rules for third- asylum seeker. The rule is simple: the country where the country nationals, this meant enhanced police asylum seeker first arrives in Europe is responsible for cooperation, minimum standards for asylum and handling the asylum request. This rule means that migration, and minimum standards for extradition, legal Greece and Italy have an interest in not ordering their aid and interpreters. affairs properly – the European Court of Justice has decided that member countries are not allowed to send The rules for third-country nationals include a right to someone back to Greece because it does not stick to the family reunification, as laid down in the Family rules. Tineke Strik does not mince her words about this: Reunification Directive. This directive states what “If you make the rules unreasonable, you end up with this requirements member states are allowed to impose on sort of paradox.” family members seeking to join their relatives in the EU. The Netherlands imposed a lower minimum income limit The Lisbon Treaty went a step further. The reception of for the resident family member of 120% of the minimum asylum seekers now had to become a single system. The wage. The European Court overthrew this requirement, problems of Dublin would have been soluble if a uniform reducing it back to 100%, and the Netherlands was also status for asylum seekers had been implemented. Strik told to take individual circumstances into account. The describes the current common procedures as bizarre. Tineke Strik: The EU could be an ally in the struggle for social equality 4

“An asylum seeker may have a 90 percent chance of agreements with Libya, but the upshot is that no one can admission in Sweden but only 10 percent in Belgium. leave Libya. People do not get what they are entitled to That depends totally on the authorities in the country there, and on top of that they are prohibited from going to concerned. We really must iron out the differences.” Europe. So effectively they have no way out.”

Europe now has good legislation for its asylum policy, but People are forced to travel to Europe in dangerous how does it work out in practice? Internal border controls circumstances. That results in many fatalities on the no longer take place in Europe. The EU concludes Mediterranean Sea. “I did a study two years ago for the mobility agreements with the transit countries, making Council of Europe about a small boat full of African them responsible for illegal immigrants to Europe who refugees which drifted around on the Mediterranean Sea have travelled through their territory and obliging them for fifteen days. They had been forced to leave Libya when to accept them back. A transit country like Morocco war broke out there. A military helicopter, two fishing responds by sealing its southern frontiers more tightly. boats and a naval vessel passed by but did nothing. The People are arrested and dropped at arbitrary locations in passengers on the drifting boat tried to signal their plight the desert, so that it will take a long time before they can as best they could, but the ships and fishing boats stuck make a renewed attempt of seeking asylum. to their course. To me this is a very serious problem. We must assure people of entry in some or other way. The The European Union makes the transit countries UN Convention on refugees says that people are entitled responsible without considering whether human rights to an asylum procedure. They must have recourse to the are honoured there. The asylum seekers have no procedure, after which according refugee status can be recourse to the Charter. “You can’t make a deal like that considered. You can’t repel them at sea; first you have to unless human rights are sufficiently assured,” Strik says. rescue them and give them the opportunity to request “If that’s how you want to do it, you must make sure that protection. I’m not saying that everyone should be human rights are respected. Italy has bilateral admitted, but they must first have access in order to apply for protection.”

rd This text was written by Simon Otjes, following a lecture by Tineke Strik on February 3 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.

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