The New Pact on Migration and Asylum: Turning European Union Territory into a non-Territory

 

 

Jean-Pierre Cassarino* and Luisa Marin**

 

 

Externalization policies in 2020: where is the European Union territory?  

 

In spite of the Commission’s rhetoric stressing the novel elements of the Pact on Migration and Asylum (hereinafter: the Pact – summarized and discussed in general here), there are good reasons to argue that the Pact develops and consolidates, among others, the existing trends on externalization policies of migration control (see Guild et al). Furthermore, it tries to create new avenues for a ‘smarter’ system of management of immigration, by additionally controlling access to the European Union territory for third country nationals (TCNs), and by creating different categories of migrants, which are then subject to different legal regimes which find application in the European Union territory.  

 

The consolidation of existing trends concerns the externalization of migration management practices, resort to technologies in developing migration control systems (further development of Eurodac, completion of the path toward full interoperability between IT systems), and also the strengthening of the role of the European Union executive level, via increased joint management involving European Union agencies: these are all policies that find in the Pact’s consolidation.

 

This brief will focus on externalization (practices), a concept which is finding a new declination in the Pact: indeed, the Pact and several of the measures proposed, read together, are aiming at ‘disentangling’ the territory of the EU, from a set of rights which are related with the presence of the migrant or of the asylum seeker on the territory of a Member State of the EU, and from the relation between territory and access to a jurisdiction, which is necessary to enforce rights which otherwise remain on paper.

 

Interestingly, this process of separation, of splitting between territory-law/rights-jurisdiction takes place not outside, but within the EU, and this is the new declination of externalization which one can find in the measures proposed in the Pact, namely with the proposal for a Screening Regulation and the amended proposal for a Procedure Regulation. It is no accident that other commentators have interpreted it as a consolidation of ‘fortress Europe’. In other words, this externalization process takes place within the EU and aims at making the external borders more effective also for the TCNs who are already in the territory of the EU.

 

The proposal for a pre-entry screening regulation

 

A first instrument which has a pivotal role in the consolidation of the externalization trend is the proposed Regulation for a screening of third country nationals (hereinafter: Proposal Screening Regulation), which will be applicable to migrants crossing the external borders without authorization. The aim of the screening, according to the Commission, is to ‘accelerate the process of determining the status of a person and what type of procedure should apply’. More precisely, the screening ‘should help ensure that the third country nationals concerned are referred to the appropriate procedures at the earliest stage possible’ and also to avoid absconding after entrance in the territory in order to reach a different state than the one of arrival (recital 8, preamble of proposal). The screening should contribute as well to curb secondary movements, which is a policy target highly relevant for many northern and central European Union states.

 

In the new design, the screening procedure becomes the ‘standard’ for all TCNs who crossed the border in irregular manner, and also for persons who are disembarked following a search and rescue (SAR) operation, and for those who apply for international protection at the external border crossing points or in transit zones. With the screening Regulation, all these categories of persons shall not be allowed to enter the territory of the State during the screening (Arts 3 and 4 of the proposal). 

 

Consequently, different categories of migrants, including asylum seekers which are by definition vulnerable persons, are to be kept in locations situated at or in proximity to the external borders, for a time (up to 5 days, which can become 10 at maximum), defined in the Regulation, but which must be respected by national administrations. There is here an implicit equation between all these categories, and the common denominator of this operation is that all these persons have crossed the border in an unauthorized manner.

 

It is yet unclear how the situation of migrants during the screening is to be organized in practical terms, transit zones, hotspot or others, and if this can qualify as detention, in legal terms. The Court of Justice has ruled recently on Hungarian transit zones (see analysis by Luisa Marin), by deciding that Röszke transit zone qualified as ‘detention’, and it can be argued that the parameters clarified in that decision could find application also to the case of migrants during the screening phase. If the situation of TCNs during the screening can be considered detention, which is then the legal basis? The Reception Conditions Directive or the Return Directive? If the national administrations struggle to meet the tight deadlines provided for the screening system, these questions will become more urgent, next to the very practical issue of the actual accommodation for this procedure, which in general does not allow for access to the territory.

 

On the one side, Article 14(7) of the proposal provides a guarantee, indicating that the screening should end also if the checks are not completed within the deadlines; on the other side, the remaining question is: to which procedure is the applicant sent and how is the next phase then determined? The relevant procedure following the screening here seems to be determined in a very approximate way, and this begs the question on the extent to which rights can be protected in this context. Furthermore, the right to have access to a lawyer is not provided for in the screening phase. Given the relevance of this screening phase, also fundamental rights should be monitored, and the mechanism put in place at Article 7, leaves much to the discretion of the Member States, and the involvement of the Fundamental Rights Agency, with guidance and support upon request of the MS can be too little to ensure fundamental rights are not jeopardized by national administrations.

 

This screening phase, which has the purpose to make sure, among other things, that states ‘do their job’ as to collecting information and consequently feeding the EU information systems, might therefore have important effects on the merits of the individual case, since border procedures are to be seen as fast-track, time is limited and procedural guarantees are also sacrificed in this context. In the case the screening ends with a refusal of entry, there is a substantive effect of the screening, which is conducted without legal assistance and without access to a legal remedy. And if this is not a decision in itself, but it ends up in a de-briefing form, this form might give substance to the next stage of the procedure, which, in the case of asylum, should be an individualized and accurate assessment of one’s individual circumstances.   

 

Overall, it should be stressed that the screening itself does not end up in a formal decision, it nevertheless represents an important phase since it defines what comes after, i.e., the type of procedure following the screening. It must be observed therefore, that the respect of some procedural rights is of paramount importance. At the same time, it is important that communication in a language TCNs can understand is effective, since the screening might end in a de-briefing form, where one or more nationalities are indicated. Considering that one of the options is the refusal of entry (Art. 14(1) screening proposal; confirmed by the recital 40 of the Proposal Procedure Regulation, as amended in 2020), and the others are either access to asylum or expulsion, one should require that the screening provides for procedural guarantees.

 

Furthermore, the screening should point to any element which might be relevant to refer the TCNs into the accelerated examination procedure or the border procedure. In other words, the screening must indicate in the de-briefing form the options that protect asylum applicants less than others (Article 14(3) of the proposal). It does not operate in the other way: a TCN who has applied for asylum and comes from a country with a high recognition rate is not excluded from the screening (see blog post by Jakuleviciene).

 

The legislation creates therefore avenues for disentangling, splitting the relation between physical presence of an asylum applicant on a territory and the set of laws and fundamental rights associated to it, namely a protective legal order, access to rights and to a jurisdiction enforcing those rights. It creates a sort of ‘lighter’ legal order, a lower density system, which facilitates the exit of the applicant from the territory of the EU, creating a sort of shift from a Europe of rights to the Europe of borders, confinement and expulsions. 

 

 

The proposal for new border procedures: an attempt to create a lower density territory?

 

Another crucial piece in this process of establishing a stronger border fence and streamline procedures at the border, creating a ‘seamless link between asylum and return’, in the words of the Commission, is constituted by the reform of the border procedures, with an amendment of the 2016 proposal for the Regulation procedure (hereinafter: Amended Proposal Procedure Regulation).  

 

Though border procedures are already present in the current Regulation of 2013, they are now developed into a “border procedure for asylum and return”, and a more developed accelerated procedure, which, next to the normal asylum procedure, comes after the screening phase.

 

The new border procedure becomes obligatory (according to Art. 41(3) of the Amended Proposal Procedure Regulation) for applicants who arrive irregularly at the external border or after disembarkation and another of these grounds apply:

 

-          they represent a risk to national security or public order;

-          the applicant has provided false information or documents or by withholding relevant information or document;

-          the applicant comes from a non-EU country for which the share of positive decisions in the total number of asylum decisions is below 20 percent.  

 

This last criterion is especially problematic, since it transcends the criterion of the safe third country and it undermines the principle that every asylum application requires a complex and individualized assessment of the particular personal circumstances of the applicant, by introducing presumptive elements in a procedure which gives fewer guarantees.

 

During the border procedure, the TCN is not granted access to the EU. The expansion of the new border procedures poses also the problem of the organization of the facilities necessary for the new procedures, which must be a location at or close to the external borders, in other words, where migrants are apprehended or disembarked.

 

Tellingly enough, the Commission’s explanatory memorandum describes as guarantees in the asylum border procedure all the situations in which the border procedure shall not be applied, for example, because the necessary support cannot be provided or for medical reasons, or where the ‘conditions for detention (…) cannot be met and the border procedure cannot be applied without detention’.

 

Also here the question remains on how to qualify their stay during the procedure, because the Commission aims at limiting resort to detention. The situation could be considered de facto a detention, and its compatibility with the criteria laid down by the Court of Justice in the Hungarian transit zones case is questionable. 

 

Another aspect which must be analyzed is the system of guarantees after the decision in a border procedure. If an application is rejected in an asylum border procedure, the “return procedure” applies immediately. Member States must limit to one instance the right to effective remedy against the decision, as posited in Article 53(9). The right to an effective remedy is therefore limited, according to Art. 53 of the Proposed Regulation, and the right to remain, a ‘light’ right to remain one could say, is also narrowly constructed, in the case of border procedures, to the first remedy against the negative decision (Art. 54(3) read together with Art. 54(4) and 54(5)). Furthermore, EU law allows Member States to limit the right to remain in case of subsequent applications and provides that there is no right to remain in the case of subsequent appeals (Art. 54(6) and (7)). More in general, this proposal extends the circumstances where the applicant does not have an automatic right to remain and this represents an aspect which affects significantly and in a factual manner the capacity to challenge a negative decision in a border procedure.

 

Overall, it can be argued that the asylum border procedure is a procedure where guarantees are limited, because the access to the jurisdiction is taking place in fast-track procedures, access to legal remedies is also reduced to the very minimum. Access to the territory of the Member State is therefore deprived of its typical meaning, in the sense that it does not imply access to a system which is protecting rights with procedures which offer guarantees and are therefore also time-consuming. Here, efficiency should govern a process where the access to a jurisdiction is lighter, is ‘less dense’ than otherwise. To conclude, this externalization of migration control policies takes place ‘inside’ the European Union territory, and it aims at prolonging the effects of containment policies because they make access to the EU territory less meaningful, in legal terms: the presence of the person in the territory of the EU does not entail full access to the rights related to the presence on the territory.

 

 

Solidarity in cooperating with third countries? The “return sponsorship” and its territorial puzzle

 

Chapter 6 of the New Pact on Migration and Asylum proposes, among other things, to create a conditionality between cooperation on readmission with third countries and the issuance of visas to their nationals. This conditionality was legally established in the 2019 revision of the Visa Code Regulation. The revision (discussed here) states that, given their “politically sensitive nature and their horizontal implications for the Member States and the Union”, such provisions will be triggered once implementing powers are conferred to the Council (following a proposal from the Commission).

 

What do these measures entail? We know that they can be applied in bulk or separately. Firstly, EU consulates in third countries will not have the usual leeway to waive some documents required to apply for visas (Art. 14(6), visa code). Secondly, visa applicants from uncooperative third countries will pay higher visa fees (Art. 16(1) visa code). Thirdly, visa fees to diplomatic and service passports will not be waived (Art. 16(5)b visa code). Fourthly, time to take a decision on the visa application will be longer than 15 days (Art. 23(1) visa code). Fifthly, the issuance of multi-entry visas (MEVs) from 6 months to 5 years is suspended (Art. 24(2) visa code). In other words, these coercive measures are not aimed at suspending visas. They are designed to make the procedure for obtaining a visa more lengthy, more costly, and limited in terms of access to MEVs.

 

Moreover, it is important to stress that the revision of the Visa Code Regulation mentions that the Union will strike a balance between “migration and security concerns, economic considerations and general external relations”. Consequently, measures (be they restrictive or not) will result from an assessment that goes well beyond migration management issues. The assessment will not be based exclusively on the so-called “return rate” that has been presented as a compass used to reward or blame third countries’ cooperation on readmission. Other indicators or criteria, based on data provided by the Member States, will be equally examined by the Commission. These other indicators pertain to “the overall relations” between the Union and its Member States, on the one hand, and a given third country, on the other. This broad category is not defined in the 2019 revision of the Visa Code, nor do we know what it precisely refers to.

 

What do we know about this linkage? The idea of linking cooperation on readmission with visa policy is not new. It was first introduced at a bilateral level by some member states. For example, fifteen years ago, cooperation on redocumentation, including the swift delivery of laissez-passers by the consular authorities of countries of origin, was at the centre of bilateral talks between France and North African countries. In September 2005, the French Ministry of the Interior proposed to “sanction uncooperative countries [especially Morocco, Tunisia and Algeria] by limiting the number of short-term visas that France delivers to their nationals.” Sanctions turned out to be unsuccessful not only because of the diplomatic tensions they generated – they were met with strong criticisms and reaction on the part of North African countries – but also because the ratio between the number of laissez-passers requested by the French authorities and the number of laissez-passers delivered by North African countries’ authorities remained unchanged.  

 

At the EU level, the idea to link readmission with visa policy has been in the pipeline for many years. Let’s remember that, in October 2002, in its Community Return Policy, the European Commission reflected on the positive incentives that could be used in order to ensure third countries’ constant cooperation on readmission. The Commission observed in its communication that, actually, “there is little that can be offered in return. In particular visa concessions or the lifting of visa requirements can be a realistic option in exceptional cases only; in most cases it is not.” Therefore, the Commission set out to propose additional incentives (e.g. trade expansion, technical/financial assistance, additional development aid).

 

In a similar vein, in September 2015, after years of negotiations and failed attempt to cooperate on readmission with Southern countries, the Commission remarked that the possibility to use Visa Facilitation Agreements as an incentive to cooperate on readmission is limited in the South “as the EU is unlikely to offer visa facilitation to certain third countries which generate many irregular migrants and thus pose a migratory risk. And even when the EU does offer the parallel negotiation of a visa facilitation agreement, this may not be sufficient if the facilitations offered are not sufficiently attractive.”

 

More recently, in March 2018, in its Impact Assessment accompanying the proposal for an amendment of the Common Visa Code, the Commission itself recognised that “better cooperation on readmission with reluctant third countries cannot be obtained through visa policy measures alone.” It also added that “there is no hard evidence on how visa leverage can translate into better cooperation of third countries on readmission.”

 

Against this backdrop, why has so much emphasis been put on the link between cooperation on readmission and visa policy in the revised Visa Code Regulation and later in the New Pact? The Commission itself recognised that this conditionality might not constitute a sufficient incentive to ensure the cooperation on readmission.

 

To reply to this question, we need first to question the oft-cited reference to third countries’ “reluctance”[n1] to cooperate on readmission in order to understand that, cooperation on readmission is inextricably based on unbalanced reciprocities. Moreover, migration, be it regular or irregular, continues to be viewed as a safety valve to relieve pressure on unemployment and poverty in countries of origin. Readmission has asymmetric costs and benefits having economic social and political implications for countries of origin. Apart from being unpopular in Southern countries, readmission is humiliating, stigmatizing, violent and traumatic for migrants,[n2] making their process of reintegration extremely difficult, if not impossible, especially when countries of origin have often no interest in promoting reintegration programmes addressed to their nationals expelled from Europe. 

 

Importantly, the conclusion of a bilateral agreement does not automatically lead to its full implementation in the field of readmission, for the latter is contingent on an array of factors that codify the bilateral interactions between two contracting parties. Today, more than 320 bilateral agreements linked to readmission have been concluded between the 27 EU Member States and third countries at a global level. Using an oxymoron, it is possible to argue that, over the past decades, various EU member states have learned that, if bilateral cooperation on readmission constitutes a central priority in their external relations (this is the official rhetoric), readmission remains peripheral to other strategic issue-areas which are detailed below. Finally, unlike some third countries in the Balkans or Eastern Europe, Southern third countries have no prospect of acceding to the EU bloc, let alone having a visa-free regime, at least in the foreseeable future. This basic difference makes any attempt to compare the responsiveness of the Balkan countries to cooperation on readmission with Southern non-EU countries’ impossible, if not spurious.

 

Today, patterns of interdependence between the North and the South of the Mediterranean are very much consolidated. Over the last decades, Member States, especially Spain, France, Italy and Greece, have learned that bringing pressure to bear on uncooperative third countries needs to be evaluated cautiously lest other issues of high politics be jeopardized. Readmission cannot be isolated from a broader framework of interactions including other strategic, if not more crucial, issue-areas, such as police cooperation on the fight against international terrorism, border control, energy security and other diplomatic and geopolitical concerns. Nor can bilateral cooperation on readmission be viewed as an end in itself, for it has often been grafted onto a broader framework of interactions.

 

This point leads to a final remark regarding “return sponsorship” which is detailed in Art. 55 of the proposal for a regulation on asylum and migration management. In a nutshell, the idea of the European Commission consists in a commitment from a “sponsoring Member State” to assist another Member State (the benefitting Member State) in the readmission of a third-country national. This mechanism foresees that each Member State is expected to indicate the nationalities for which they are willing to provide support in the field of readmission. The sponsoring Member State offers an assistance by mobilizing its network of bilateral cooperation on readmission, or by opening a dialogue with the authorities of a given third country where the third-country national will be deported. If, after eight months, attempts are unsuccessful, the third-country national is transferred to the sponsoring Member State. Note that, in application of Council Directive 2001/40 on mutual recognition of expulsion decisions, the sponsoring Member State may or may not recognize the expulsion decision of the benefitting Member State, just because Member States continue to interpret the Geneva Convention in different ways and also because they have different grounds for subsidiary protection. 

 

Viewed from a non-EU perspective, namely from the point of view of third countries, this mechanism might raise some questions of competence and relevance. Which consular authorities will undertake the identification process of the third country national with a view to eventually delivering a travel document? Are we talking about the third country’s consular authorities located in the territory of the benefitting Member State or in the sponsoring Member State’s? In a similar vein, why would a bilateral agreement linked to readmission – concluded with a given ‘sponsoring’ Member State – be applicable to a ‘benefitting’ Member State (with which no bilateral agreement or arrangement has been signed)? Such territorially bounded contingencies will invariably be problematic, at a certain stage, from the viewpoint of third countries. Additionally, in acting as a sponsoring Member State, one is entitled to wonder why an EU Member State might decide to expose itself to increased tensions with a given third country while putting at risk a broader framework of interactions.

 

As the graph shows, not all the EU Member States are equally engaged in bilateral cooperation on readmission with third countries. Moreover, a geographical distribution of available data demonstrates that more than 70 per cent of the total number of bilateral agreements linked to readmission (be they formal or informal[n3]) concluded with African countries are covered by France, Italy and Spain. Over the last decades, these three Member States have developed their respective networks of cooperation on readmission with a number of countries in Africa and in the Middle East and North Africa (MENA) region.

 

 

Given the existence of these consolidated networks, the extent to which the “return sponsorship” proposed in the Pact will add value to their current undertakings is objectively questionable. Rather, if the “return sponsorship” mechanism is adopted, these three Member States might be deemed to act as sponsoring Member States when it comes to the expulsion of irregular migrants (located in other EU Member States) to Africa and the MENA region. More concretely, the propensity of, for example, Austria to sponsor Italy in expelling from Italy a foreign national coming from the MENA region or from Africa is predictably low. Austria’s current networks of cooperation on readmission with MENA and African countries would never add value to Italy’s consolidated networks of cooperation on readmission with these third countries. Moreover, it is unlikely that Italy will be proactively “sponsoring” other Member States’ expulsion decisions, without jeopardising its bilateral relations with other strategic third countries located in the MENA region or in Africa, to use the same example. These considerations concretely demonstrate that the European Commission’s call for “solidarity and fair sharing of responsibility”, on which its “return sponsorship” mechanism is premised, is contingent on the existence of a federative Union able to act as a unitary supranational body in domestic and foreign affairs. This federation does not exist in political terms.

 

Beyond these practical aspects, it is important to realise that the cobweb of bilateral agreements linked to readmission has expanded as a result of tremendously complex bilateral dynamics that go well beyond the mere management of international migration. These remarks are crucial to understanding that we need to reflect properly on the conditionality pattern that has driven the external action of the EU, especially in a regional context where patterns of interdependence among state actors have gained so much relevance over the last two decades. Moreover, given the clear consensus on the weak correlation between cooperation on readmission and visa policy (the European Commission being no exception to this consensus), linking the two might not be the adequate response to ensure third countries’ cooperation on readmission, especially when the latter are in position to capitalize on their strategic position with regard to some EU Member States.

 

 

Conclusions  

 

This brief reflection has highlighted a trend which is taking shape in the Pact and in some of the measures proposed by the Commission in its 2020 package of reforms. It has been shown that the proposals for a pre-entry screening and the 2020 amended proposal for enhanced border procedures are creating something we could label as a ‘lower density’ European Union territory, because the new procedures and arrangements have the purpose of restricting and limiting access to rights and to jurisdiction. This would happen on the territory of a Member State, but in a place at or close to the external borders, with a view to confining migration and third country nationals to an area where the territory of a state, and therefore, the European territory, is less … ‘territorial’ than it should be: legally speaking, it is a ‘lower density’ territory.  

 

The “seamless link between asylum and return” the Commission aims to create with the new border procedures can be described as sliding doors through which the third country national can enter or leave immediately, depending on how the established fast-track system qualifies her situation. 

 

However, the paradox highlighted with the “return sponsorship” mechanism shows that readmission agreements or arrangements are no panacea, for the vested interests of third countries must also be taken into consideration when it comes to cooperation on readmission. In this respect, it is telling that the Commission never consulted third states on the new return sponsorship mechanism, as if their territories were not concerned by this mechanism, which is far from being the case. For this reason, it is legitimate to imagine that the main rationale for the return sponsorship mechanism may be another one, and it may be merely domestic. In other words, the return sponsorship, which transforms itself into a form of relocation after eight months if the third country national is not expelled from the EU territory, subtly takes non-frontline European Union states out of their comfort-zone and engage them in cooperating on expulsions. If they fail to do so, namely if the third-country national is not expelled after eight months, non-frontline European Union states are as it were ‘forcibly’ engaged in a ‘solidarity practice’ that is conducive to relocation.

 

Given the disappointing past experience of the 2015 relocations, it is impossible to predict whether this mechanism will work or not. However, once one enters sliding doors, the danger is to remain stuck in uncertainty, in a European Union ‘no man’s land’ which is nothing but another by-product of the fortress Europe machinery. 

 

Barnard & Peers: chapter 26

JHA4: chapter I:3, I:5, I:4

Photo: asylum seekers arriving at Lesbos, by Ggia - Own work, via Wikicommons CC BY-SA 4.0

 

* College of Europe, Warsaw, Poland.

** European University Institute, San Domenico di Fiesole, Italy. Luisa Marin acknowledges funding from the European Union’s Horizon 2020 research and innovation programme, Marie Skłodowska-Curie grant agreement No 891762: “Controlling Escapes from Law. Re-designing accountability in the externalisation of migration control policies”.

 

While the introduction and the concluding remarks are common, sections a) and b) have been written by Luisa Marin, and section c) by Jean-Pierre Cassarino. Both Authors are affiliated to ADIM, Accademia ‘Diritto e Migrazioni’, of the University of Tuscia. The usual disclaimer applies.

 

 

[n1] For a critical approach to the use and abuse of the notion of “reluctance” in the West, see A. Acharya, “How Ideas Spread: Whose Norms Matter? Norm Localization and Institutional Change in Asian Regionalism”, International Organization, 2004, 58(2), pp. 239-275; J.-P. Cassarino, “Beyond the Criminalisation of Migration: A Non-Western Perspective”, International Journal of Migration and Border Studies, 2018 4(4), pp. 397–411; M. Cebeci, Deconstructing "Ideal Power Europe": The EU and the Arab Change, 2019, London: Lexington Books.

 

[n2] Among many others, see U. Von Lersner, Th. Elbert and F. Neuner, “Mental health of refugees following state-sponsored repatriation from Germany”, BMC Psychiatry 2008 8:88. L. Schuster and N. Majidi, “Deportation stigma and re-migration”, Journal of Ethnic and Migration Studies, 2015 41(4): 635–652. J. Alpes, Ch. Blondel, N. Preiss and M. Sayos Monras, “Post-deportation risks for failed asylum-seekers”, Forced Migration Review, 2017 54.

 

[n3] On the informalization of agreements linked to readmission at bilateral and supranational levels, see J.-P. Cassarino, “Informalising Readmission Agreements in the EU Neighbourhood”, The International Spectator, 2007, 42 (2): 179-196, J.-P. Cassarino, “Informalizing EU Readmission Policy” In A. Ripoll Servent and F. Trauner (eds.), The Routledge Handbook of Justice and Home Affairs Research. 2018, London: Routledge, pp. 83-98. On its implications for access to fundamental rights, see M. Giuffré, The Readmission of Asylum Seekers under International Law. 2020, Oxford: Hart, pp. 160-170. See also, S. Carrera, Implementation of EU Readmission Agreements: Identity Determination Dilemmas and the Blurring of Rights. 2016, Heidelberg: Springer International Publishing.

The proposal on adequate minimum wages in the European Union: Striving for fairness, less so adequacy

 

Ane Aranguiz, Postdoctoral Researcher, University of Antwerp

 

Less than a year after the Commission announced its commitment to an initiative on minimum wages, on 28 October 2020 the Commission finally presented the fiercely criticized proposal for a directive on adequate minimum wages. The Commission had to find an balance on the tightrope of criticisms en masse regarding, inter alia, its lack of competence, concerns regarding the autonomy of social partners and the sustainability of collective bargaining systems or the impact on the competitive advantage of lower wages on certain Member States.

 

Background

 

Over the last years, low wages have not kept up with other wages in many Member States and recent labour structural trends such as globalization, digitalization and the upturn of non-standard employment have resulted in increased job polarisation leading to an increased share of low-paid and low-skilled jobs. These trends have further contributed to the erosion of collective bargaining systems. Making matters worse, the recent Covid-19 crisis is particularly hitting sectors with a higher share of low-wage earners and having a disproportionate impact on disadvantaged groups such as women, young, low-skilled workers or people with disabilities.

 

Ever since the adoption of the European Pillar of Social Rights (EPSR) in 2017, the European institutions have been committed to delivering more effective social rights to the European society. The latest initiative relates to a proposal for a directive on adequate minimum wages in the EU, implementing principle 6 EPSR which aims at providing better working conditions, addressing adequacy of minimum wages to contribute to improving the fairness of the labour market in the EU and to stimulate productivity and socioeconomic progress.

 

The initiative was first addressed in the Political Guidelines for the Commission 2019-2024. In January 2020, the Commission presented its communication on ‘building a strong social Europe for just transitions’ alongside the first-stage consultation where social partners were consulted on the need for a potential initiative on minimum wages and its possible direction. The second-stage consultation, between June and September, dealt with the content and the legal instrument. In view of a lack of agreement among the social partners to enter into negotiations to conclude an agreement according to Article 155 TFEU and after carrying out an impact assessment following the policy on Better Regulation, the Commission presented its proposal for a Directive.

 

Content

 

On the basis of Article 153(1)(b) TFEU on working conditions and Article 153(2)(b) TFEU, the Commission puts forward a directive that aims at ensuring that work is remunerated adequately as to allow for a decent living wherever they work. The design of the directive is thought to take into account and adapt to country specific characteristics, therefore respecting national competences, the contractual freedom and autonomy of social partners. Moreover, it has the objective of promoting collective bargaining on wages, ensuring formal coverage and guaranteeing compliance with existing collective agreements of statutory minimum wages.

 

To this end, the proposed directive is structured in four chapters: General provisions (Articles 1-4: subject matter, scope, definitions, promotion of collective bargaining on wage setting); statutory minimum wages (Articles 5-8: adequacy, variations and deductions, involvement of social partners in statutory minimum wage setting and updating and effective access of workers to statutory minimum wage); horizontal provisions (Articles 9-12: public procurement, monitoring and data collection and penalties); and final provisions (Articles 13-19: implementations, dissemination of information, evaluation and review, non-regression and more favourable provisions, transpositions, entry into force and addresses).

 

Among these, there are a number of provisions that need to be emphasized. In the first place, attention should be paid to the scope of the proposal, which applies to every worker in the Union who has an employment contract or employment relationship as defined by law or collective agreements and in consideration with the case-law of the ECJ. What is interesting is that recital 17 of the preamble complements this by specifically addressing categories that are often disputed to qualify as ‘workers’, including domestic workers, on-demand workers, intermittent workers, voucher based-workers, bogus self-employed, platform workers, trainees and apprentices. Remarkably, it enshrines that it is the actual performance of work and not the work description provided by the parties what determined the existence of an employment relationship. This provision is clearly designed to ensure that non-standard forms of employees are covered by minimum wages, regardless of whether they have traditionally been considered as workers insofar as they fulfil similar criteria.

 

Differently, Article 4 provides for the promotion of collective bargaining, including the obligation to install a framework to enable collective bargaining where coverage is less than 70%, which requires an action plan to be made public and presented to the Commission. In the case of statutory minimum wages, the proposal enshrines a provision on adequacy in its Article 5, imposing an obligation on Member States to establish national criteria in a stable and clear way that includes (at least) the purchasing power of minimum wages, the general level of gross wages and their distribution, their growth rate and labour productivity developments. Member States are further obliged to use indicative reference values commonly used at the international level. While the preamble refers to the at-risk-of-poverty threshold in this regard as a possible aid to assess adequacy, the provision does not include a specific reference value that (even remotely) sets a threshold. Article 6, in turn, limits possible variations and deductions that allow different rates of statutory minimum wages, and provides that in any case they should be objectively justified and proportionate.

 

In addition, the monitoring system provides for a platform of supervision, data collection and evaluation of the current framework. Article 10 requires, inter alia, a report on annual basis, statistics and information (disaggregated by gender, age, disability, company size and sectors) which the Commission will assess and report accordingly to the Council and the Parliament.

 

These are complemented with the more common provisions regarding remedies, implementation, non-regression, dissemination, evaluation and transposition.

 

Analysis

 

In spite of vast criticisms, this is a rather strong proposal, if not so much in terms of adequacy, at least in terms of ensuring access to minimum wages, transparency and compliance. The proposal has it written all over how much the Commission has tiptoed around the concerns regarding the autonomy of the social partners and the possible negative effects on collective bargaining systems. Besides the obvious provisions on the promotion of social partners (Articles 4 and 7), the preamble addresses this concern extensively (recitals 18-20) and an entire chapter (2) is dedicated solely to statutory minimum wages to make a clear separation between the two systems.

 

In all certainty, one of the strongest points of this proposal relates to its broad coverage. A combination of a broad concept of worker, an obligation to put a framework to promote collective bargaining in areas not yet covered by collective agreements and the clear limits to variations and reductions in the case of statutory minimum wages, will in all likelihood (if adopted) lead to the coverage of many workers who are not currently able to access minimum wages. Complemented with a regular monitoring system and access to effective remedy, these provisions could have the desired effect to bring ‘fairness’ to the labour market by ensuring that many more are covered by minimum wages.

 

As was to be expected, however, the proposal is weaker from an adequacy point of view. On a positive note, Member States with statutory minimum wages need to take into account important elements when determining the level of minimum wages. These elements aim at giving important insight regarding the adequacy of minimum wages and whether they allow recipients access to essential services and participate in society. There is, however, no indication on how to use these elements or a certain ‘threshold’ of ‘standard’ that Member States should aim to strive, such as the at-risk-of-poverty threshold (60% of the equivalized median wage), even though in 2018 most statutory minimum wages did not suffice to lift people out of poverty. This might seem surprising, since one of the aims of the Directive is to combat in-work poverty, but it is completely understandable considering the legal basis chosen by the Commission that forbid the regulation of the level of pay (Article 153(5) TFEU). While this provision may certainly ensure some ‘fairness’ and transparency in wage setting mechanisms, minimum wages that lie below the poverty line can hardly be considered ‘adequate’. An alternative legal basis could have allowed to include sturdier commitments to adequacy instead.

 

Another point to warmly welcome is the link between the Directive and other fundamental rights instruments such as the EPSR, the Charter of Fundamental Rights (Article 31 CFR), the European Social Charter (Article 4) and the 131 ILO Convention. These links could act as aid of interpretation for Member States or courts in case of conflict and facilitate judicial dialogue between different authoritative bodies. The clear link to Article 31 CFR, moreover, ensures that the Directive will be read in line with the CFR. In this vein, while Bauer opened the door for the direct application of Article 31 CFR, without a clear reference in the directive it would be disputed that minimum wages are covered by the provision, since Article 31 CFR does not explicitly refer to the right to minimum wages.

 

Further strengthening the proposal, the monitoring system (which will be part of the European Semester) in addition to the access to Technical Support Instrument and the European Social Fund Plus to develop and improve the technical aspects of minimum wage is likely to facilitate a successful and effective implementation of the directive.

 

Conclusion

 

All in all, the Commission has put forward a strong initiative that aims at establishing ‘fair’ minimum wages, if not necessarily ‘adequate’ as the title of the proposal falsely prescribes.

It remains to be seen whether the proposal will in fact survive the brutal opposition to regulating minimum wages at the EU or at least in its current form. In view of the vicious antagonism, it is not unlikely that the proposal will be substantially watered down during the negotiations between the Council and the Parliament, if not completely abandoned after potentially becoming the fourth victim of the yellow-card procedure.

 

Barnard & Peers: chapter 20

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