ISSN 1725-2423

Official Journal

of the European Union

C 286

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English edition

Information and Notices

Volume 48
17 November 2005


Notice No

Contents

page

 

II   Preparatory Acts

 

European Economic and Social Committee

 

418th plenary session, held on 8 and 9 June 2005

2005/C 286/1

Opinion of the European Economic and Social Committee on the Proposal for a Directive of the European Parliament and of the Council on certain aspects of mediation in civil and commercial matters (COM(2004) 718 final – 2004/0251 (COD))

1

2005/C 286/2

Opinion of the European Economic and Social Committee on the Proposal for a Regulation of the European Parliament and of the Council on compulsory licensing of patents relating to the manufacture of pharmaceutical products for export to countries with public health problems (COM(2004) 737 final – 2004/0258 (COD))

4

2005/C 286/3

Opinion of the European Economic and Social Committee on the Proposal for a Directive of the European Parliament and of the Council amending Directive 98/71/EC on the legal protection of designs (COM(2004) 582 final — 2004/0203 (COD))

8

2005/C 286/4

Opinion of the European Economic and Social Committee on Information and measurement instruments for corporate social responsibility (CSR) in a globalised economy

12

2005/C 286/5

Opinion of the European Economic and Social Committee on the Green paper on an EU approach to managing economic migration (COM(2004) 811 final)

20

2005/C 286/6

Opinion of the European Economic and Social Committee on the General agreement on trade in services (GATS) — Mode 4 negotiations (movement of physical persons)

28

2005/C 286/7

Opinion of the European Economic and Social Committee on the Proposal for a Council Directive on the supervision and control of shipments of radioactive waste and spent fuel (COM(2004) 716 final — 2004/0249 (CNS))

34

2005/C 286/8

Opinion of the European Economic and Social Committee on the Proposal for a Council Decision on guidelines for the employment policies of the Member States, in accordance with Article 128 of the EC Treaty (COM(2005) 141 final — 2005/0057 (CNS))

38

EN

 


II Preparatory Acts

European Economic and Social Committee

418th plenary session, held on 8 and 9 June 2005

17.11.2005   

EN

Official Journal of the European Union

C 286/1


Opinion of the European Economic and Social Committee on the Proposal for a Directive of the European Parliament and of the Council on certain aspects of mediation in civil and commercial matters

(COM(2004) 718 final – 2004/0251 (COD))

(2005/C 286/01)

On 16 November 2004, the Council decided to consult the European Economic and Social Committee, under Article 95 of the Treaty establishing the European Community, on the abovementioned proposal.

The Section for the Single Market, Production and Consumption, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 23 May 2005. The rapporteur was Ms Sánchez Miguel.

At its 418th plenary session, held on 8 and 9 June 2005 (meeting of 9 June), the European Economic and Social Committee adopted the following opinion by 157 votes to 1 with 1 abstention.

1.   Introduction

1.1

Since the Tampere Council of 15 and 16 October 1999, the European Commission has embarked upon a process to create and harmonise legal instruments making it possible to develop an area of freedom, security and justice, in which the free movement of persons is ensured, within the limits of the European Union. Previously (1), the Council had presented relevant provisions to facilitate the service of judicial and extrajudicial documents between Member States, enhancing this measure by ensuring improved information for citizens.

1.2

As a result of the Tampere Council, the Commission has called on Member States to implement procedures to recognise and enforce the resolutions, along with alternative, out-of-court procedures for resolving disputes in civil and commercial matters, in order to improve the operation of judicial systems in every Member State, while European data-gathering systems and information networks are strengthened by means of the new technologies made available to the European public.

1.3

With regard to the first topic, the Council Regulation on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters (2) was submitted. Among other things, this provides for the simplification of the exequatur procedure, adaptations to the protective measures which will facilitate the enforcement of the resolutions, and the recognition of a writ of enforcement effective in Europe.

1.4

In a similar vein, the Commission presented a proposal for a Decision relating to the creation of a European Judicial Network in civil and commercial matters (3). This aims to set up a European instrument for judicial cooperation in order to inform private individuals, professionals, institutions and administrations about the laws and procedures applicable in each State, in civil and commercial matters, which would be particularly useful in settling cross-border disputes.

1.5

Following the Commission's submission, in 2002, of the Green Paper examining an alternative approach to settling disputes in the EU, in which both Member States and interested parties were extensively consulted, the proposal for a directive now under discussion has been drawn up as a useful instrument designed to achieve effective results, while safeguarding the inherent characteristics of national law on dispute settlement in civil and commercial matters.

1.6

With regard to the above point, the practice of mediation in consumer matters (4) is a useful precedent; over time it has proved very practical, partly due to its incorporation into consumer protection laws. This system has successfully adapted to new consumer habits, so that it can be applied to various areas involving services as well as goods.

1.7

Mediation in civil and commercial matters by means of judicial proceedings has certain characteristic features that make it quite distinct from other forms of mediation. Each State has sole responsibility for its judicial system and mediation is a valuable method for settling disputes only if the litigant parties consent to it. Both of these characteristic features impose constraints on the Commission's powers to flesh out a proposal for a Directive. Nevertheless, the aim is to provide alternative dispute-settlement practices, but, as the Commission points out, Member States must guarantee and maintain an ‘effective and fair legal system’ that meets the basic requirements for protection of human rights.

2.   Substance of the proposal

2.1

The aim of this proposal for a directive is to facilitate, through mediation, the settlement of disputes in the field of civil and commercial law that may arise in the internal market. This involves defining the concept of mediation – and mediator – whilst leaving it to Member States to lay down the detailed judicial arrangements and, in particular, the characteristics required of mediators.

2.2

Mediation can be carried out voluntarily, at the request of the parties, or be initiated as a result of the legal proceedings. The request may therefore be made by the parties or by the courts. In both cases, the parties submit to mediation as a means of avoiding legal proceedings or, once these have begun, of simplifying them by complying with the results of the mediation. In both cases, the parties can call for the enforcement of the settlement reached by means of a judgment, decision or authentic instrument.

2.3

The content of the acts of mediation may not be used as evidence in the judicial proceedings in the cases set out in Article 6(1), thus protecting the confidentiality of the parties and those involved in the mediation process. However, it may be used if the parties and the mediator agree and, especially, if this is to protect minors or prevent harm to the physical or psychological integrity of a person.

2.4

Periods of prescription or limitation applicable to actions resulting from the proceedings brought are suspended during mediation from the moment the parties or courts request it.

3.   Comments on the proposal for a directive

3.1

The EESC believes that this initiative by the Commission is a useful instrument, which will further the actions undertaken at the Tampere Council to increase legal certainty in the EU. A European legal framework for civil and commercial mediation involves incorporating an instrument already in use in some Member States – albeit mainly in the private dispute settlement sphere - into judicial proceedings. This will provide a system enabling courts to propose a mediator external to the proceedings, thus making it easier to settle disputes by agreement between the parties.

3.2

The proposal for a directive aims to increase the use of mediation in judicial proceedings within the EU. This will bring advantages both in economic terms, by reducing the cost of proceedings, and in social terms, by shortening otherwise lengthy civil proceedings, which can have damaging consequences for the parties (particularly family law cases), with the ensuing social problems that litigants often face. At all events, mediation should not be confused with the conciliation procedures commonly used in most Member States before legal proceedings begin, as it is the parties and their lawyers, under the auspices of the judge, who will try to reach agreement in order to avoid proceedings.

3.3

The mediator is an important factor in achieving a good result. The trustworthiness and fairness of his or her handling of the matter and, most particularly, his or her independence in relation to the litigant parties, as well as his or her duty of professional secrecy during mediation, improve the mediation's effectiveness and make a positive outcome more likely. However, in Article 4 of the proposal, the conditions and requirements are left up to the Member States, with the emphasis on self-regulation at Community level, and particularly European codes of conduct. Although the proposal for a directive is not exclusively geared to mediation in cross-border disputes, there will be a need to train those appointed as mediators in Community law and, above all, to create a legal framework that ensures the availability of this service in all Member States.

3.4

In mediation, it is essential to guarantee the quality of the service rendered. Therefore, the proposal should contain guidelines for a basic harmonisation of requirements for practising as a mediator. The requirement for mediators to be competent and independent, in line with the recommendations for mediation in consumer matters would be one such prerequisite, and could be achieved through greater European cooperation aimed at more uniform mediator training and appointment systems.

3.5

Matters covered by mediation in civil and commercial law are defined in negative terms. Thus the eighth recital excludes ‘processes of an adjudicatory nature such as arbitration, ombudsmen schemes, consumer complaint schemes, expert determination or processes administered by bodies issuing a formal recommendation, be it legally binding or not, as to the resolution of the dispute’. This is presumably because there is a specific mediation procedure for each of the cases mentioned. However, we should not rule out the possibility of mediation in civil actions deriving from criminal or tax cases (5) which, although originally excluded, could help these civil actions to be resolved.

3.6

The EESC agrees with the rule preserving the highest level of confidentiality of data, both civil and commercial, handled during the mediation process (Article 6(1)), as regards both personal data and those aspects concerning the confidentiality of relations; however, under no circumstances may the exclusion of such data as evidence be invoked if the rights of minors or the physical or psychological integrity of persons involved in the dispute are thereby threatened.

4.   Specific comments

Given that mediation is a voluntary dispute settlement procedure which can only work if both parties agree to participate and to accept the outcome, the future Directive should clarify some extremely important aspects, to ensure that this is a workable instrument and that it inspires confidence in the European public. To this end, the EESC considers that account should be taken of some of the following observations.

4.1

The proposed legal framework for mediation has limited power in civil and commercial matters (6) but, despite the enormous volume of case law on matters covered by civil and commercial law, Article 1(2) should establish the framework's scope and should not adopt the negative formula set out in recital (8). Furthermore, account should be taken of civil and commercial actions resulting from other areas, such as tax and administrative matters and even of civil actions resulting from criminal actions (7).

4.1.1

In the future, in the light of the experience of mediation carried out in accordance with the proposal, the possibility could be considered of extending its scope to cover administrative and tax powers.

4.2

One potential problem arises from the differences between the various language versions of the proposal, which could complicate its transposition (8). Account must be taken of the fact that the organisation of the judicial system falls within the sole competence of each Member State and that legal practices may thus vary from one State to another. It would have to be made clear that it is not only law courts that can recommend mediation but also judicial bodies and also that these should not be the only bodies with the right to ensure compliance with the mediation agreement. Any public body entitled under national legislation to carry out such action has the right to do so.

4.3

The EESC wishes to insist on the importance of the mediator throughout the process, in order to ensure that the proceedings are carried through and are effective. The Committee therefore considers that the Commission should propose guidelines that will guarantee both a degree of harmonisation between Member States and the authority and quality of mediators. The minimum requirements for mediators to be included under Article 4 should include the following:

suitable qualification and training in the subjects of the mediation;

independence and impartiality in relation to the litigant parties;

transparency and accountability in their actions.

In particular, the freedom to provide services should be guaranteed in all Member States, which would, in smaller countries, ensure the independence of the mediator with regard to the parties involved.

4.3.1

The Committee broadly welcomes the option of a European code of conduct as a means of setting the rules for mediators, although for this code to be valid, the Commission – the relevant body in this case - would have to consider the fact that the professionalism, independence and accountability of persons, both natural and legal, practising as mediators should always be guaranteed as proposed in relation to Article 4.

4.4

Depending on the specific judicial characteristics of each State, the problem posed by the cost of mediation cannot simply be solved by including this in the general court costs. There should be a requirement either for tariffs in proportion to the issue in question and its scale or, alternatively, a mandatory advance payment that would enable the parties to decide whether or not it was worthwhile proceeding. In any event, the procedure should never be more costly to the parties than judicial proceedings.

Brussels, 9 June 2005.

The President

of the European Economic and Social Committee

Anne-Marie SIGMUND


(1)  See the Council Directive on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters [COM(1999)219 final]. EESC opinion, rapporteur: Mr B. Hernández Bataller. OJ C 368, 20.12.1999.

(2)  EESC opinion, rapporteur: Mr H. Malosse, OJ C 117, 26.4.2000.

(3)  COM(2000) 592 final. EESC opinion, rapporteur: Mr D. Retureau, OJ C 139, 11.5.2001.

(4)  Commission Recommendation of 4 April 2001 on the principles for out-of-court bodies in the consensual resolution of consumer disputes. OJ L 109, 19.4.2001.

(5)  Opinion CESE, point 3.7, rapporteur: Mr D. Retureau. OJ C 139, 11.5.2001.

(6)  The Brussels Convention of 27 September specified the scope of jurisdiction in civil and commercial matters.

(7)  The EESC opinion (rapporteur: Mr Retureau, OJ C 139, 11.05.2001) referred in point 3.7 to the problem of defining the civil and commercial spheres, and called for ‘the decision to make specific reference to the Court of Justice definitions. Since civil actions heard in the context of criminal and tax cases do not fall outside the scope of the proposal, and it is also possible that documents which cannot easily be defined in legal terms by the appropriate legal body may be requested, an indent along the following lines should be inserted in order to protect the rights of the parties involved: “the receiving agency shall define as flexibly as possible those documents whose legal character cannot be clearly assigned to either the civil or the commercial field, but which nevertheless have points in common with them”.’

(8)  The German version of the proposed Directive frequently uses the term ‘Streitschlichtung’ (dispute resolution). Dispute resolution cannot be considered the same as mediation because the resultant decision is at the least a reasoned proposal by the arbitrator aimed at resolving the conflict, while a mediator traditionally does not adopt any position as to the substance of the conflict. Consequently the German version of the draft Directive should use the term ‘amicable settlement’ instead of ‘dispute resolution’.


17.11.2005   

EN

Official Journal of the European Union

C 286/4


Opinion of the European Economic and Social Committee on the Proposal for a Regulation of the European Parliament and of the Council on compulsory licensing of patents relating to the manufacture of pharmaceutical products for export to countries with public health problems

(COM(2004) 737 final – 2004/0258 (COD))

(2005/C 286/02)

On 15 December 2004, the Council decided to consult the European Economic and Social Committee, under Article 251 of the Treaty establishing the European Community, on the abovementioned proposal.

The Section for the Single Market, Production and Consumption, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 23 May 2005. The rapporteur was Mr Braghin.

At its 418th plenary session, held on 8 and 9 June 2005 (meeting of 8 June), the European Economic and Social Committee adopted the following opinion by 64 votes to one with one abstention.

1.   Gist of the opinion

1.1

The EESC endorses the European Commission's proposal, which aims to implement the Decision that was adopted by the WTO General Council on 30 August 2003. It also appreciates the Commission's active role - with international bodies and other stakeholders - in seeking appropriate solutions to the serious health problems affecting developing countries with no pharmaceuticals production capacity and inadequate health structures.

1.2

The EESC supports both the procedure governing the compulsory licensing of pharmaceutical products covered by a patent or a supplementary protection certificate and the chosen control arrangements.

1.3

Furthermore, the EESC recommends strengthening the operational provisions in order to ensure:

full compliance with current legislation, particularly in relation to production quality control,

that the conditions for compulsory licensing are reinforced (Article 8), particularly in relation to the arrangements used to differentiate between a licensed pharmaceutical product and its original, in order that illegal re-export within the EU or to third countries is avoided,

a coordinated effort with the authorities of the importing countries in order to avoid fraud, counterfeiting and uses other than those originally provided for,

that the implementation of Member States' customs rules and sanction arrangements are closely monitored to deter illicit operations,

wider disclosure of compulsory licensing to better safeguard intellectual property rights.

1.4

The EESC hopes that the scope is extended to include veterinary medicinal products in view of possible health emergencies arising from outbreaks of contagious animal diseases or contamination of food products of animal origin.

1.5

Lastly, the EESC hopes that the European Commission continues its worldwide efforts to ensure that emergency medicines and adequate health structures are also made available to non-WTO developing countries.

2.   Introduction

2.1

The health situation in many parts of the world is highly critical and is marked by a constant risk of epidemics, inadequate structures and treatment and very high morbidity and mortality rates. The challenge is a global one, requiring better health and social services not just in the developing countries, but even in those relatively developed ones that do not allocate sufficient resources to solving their health and social problems.

2.2

Health care aid provided by the more developed countries is insufficient to resolve the problems, and therefore new instruments must be sought. It is not enough to provide medicines for emergencies, as is usually the case with developing countries; the aim should be to improve the overall performance of the system. This means targeting scarce resources on real priorities, ensuring resource management and control capabilities benefit those who actually need them, finding solutions to shortcomings in pharmaceuticals production and services and ensuring the latter are managed efficiently.

2.3

The Commission has been particularly active in this field, acting on several health-related fronts and seeking suitable forms of cooperation and aid. One example is the action programme to tackle the three diseases that impact most on the high mortality rate in the less developed and developing countries (HIV/Aids, tuberculosis and malaria) (1). The programme also aims to strengthen local health systems, increase opportunities to secure the necessary medication at reasonable prices and promote research into medicines and vaccines to combat these diseases.

2.4

The Commission has also adopted an active, positive approach in terms of awareness-raising and the search for common solutions with international bodies and other stakeholders. The aim is to improve the availability of basic medicines and to ensure equal access for the poorest populations whilst defending the intellectual property rights enshrined in international trade agreements, and eliminating the risk of speculative re-importation or sale to third countries.

2.5

The Commission's work has been decisive in advancing discussions of these objectives at the World Trade Organisation (WTO) in relation to the TRIPS Agreement (2). WTO Member States adopted a declaration on the TRIPS Agreement and public health (3) at the Conference of Ministers which was held in Doha in 2001. The Declaration cleared up the issue of the degree of flexibility allowed in implementing the agreement in the context of national health policies. The Conference also established the basic principles for ensuring that less developed countries with limited or no pharmaceuticals production capacity can have recourse to compulsory licensing, a matter which is predominantly regulated by the national authorities.

2.6

The above-mentioned Doha declaration on public health asserted the principle that TRIPS agreements were to be interpreted and implemented in such a way as to support the right of public health protection and to promote access to medicines for all, and, in particular, the right of every WTO Member State to establish what constitutes a ‘national emergency’ or ‘circumstances of extreme urgency’ with a view to justifying granting compulsory licensing. Furthermore, after taking note of the problems facing countries with limited or no pharmaceuticals production capacity, the declaration authorised the General Council to find a speedy solution to the problem.

2.7

The WTO General Council reached a solution with its Decision of 30 August 2003 (4). The Decision clearly defines the principles and commitments of the various players, in order to ensure that the products imported under the system are genuinely used to meet public health needs without trade diversion. Furthermore, it acknowledges the case for cooperation among the WTO Member States with a view to encouraging technology transfers and creating productive capacity in the pharmaceutical sector, in accordance with Article 66(2) of the TRIPS Agreement.

2.8

The official statement which the chairman of the General Council (5) made when the Decision was adopted, is of some significance. It highlights the obstacles encountered in this wide-scale national and international action to resolve the problem, and sheds light on the logic and fairness of the adopted measures, thus enhancing the content of the Decision. The statement also notes that some WTO members, including the Member States of the European Union, have resolved not to use this particular compulsory licensing mechanism for imports of proprietary medicines.

2.9

The General Council's Decision stipulated that it would cease to apply when the TRIPS Agreement was amended to comply with the provisions of the Decision. Despite the tight deadlines, the initiative of the General Council has not yet led to such a resolution. Consequently, some initiatives to bring the Decision into effect have been adopted autonomously by some WTO Member States and the Commission is moving in the same direction with its proposed regulation.

3.   Gist of the proposal for a regulation

3.1

The proposal aims to implement at Community level the WTO General Council Decision of 30 August 2003 on the implementation of paragraph 6 of the Declaration on the TRIPS Agreement and public health. By waiving WTO members' obligations under Article 31(f) of the WTO Agreement on trade-related aspects of intellectual property rights, this decision enables them to grant compulsory licences for the production and sale of patented pharmaceutical products intended for export to requesting third countries with insufficient or no manufacturing capacity in the pharmaceutical sector.

3.2

The regulation is intended to be part of the wider European and international action to address public health problems faced by least developed countries and other developing countries, with a view to improving access to affordable medicines in WTO Member States facing national emergencies or circumstances of extreme urgency.

3.3

The Decision includes substantial safeguards against trade diversion and rules to ensure transparency, and provides for future replacement of the Decision by an amendment to the TRIPS Agreement.

3.4

The Commission believes that it is important for the Community to contribute to the system set up by the Decision through implementation in the Community legal order, because of the active role played by the European Communities and their Member States in the adoption of the Decision, their commitment made at the WTO to fully contribute to its implementation and their appeal to all WTO Members to ensure that the right conditions are put in place to allow the system set up by the Decision to operate efficiently.

3.5

Within the Community uniform implementation of the Decision is needed to ensure that the conditions for the granting of compulsory licences for export are the same in all EU Member States, to avoid any distortions of competition for operators in the EU single market and to apply uniform rules to prevent re-importation into the territory of the European Union of pharmaceutical products manufactured under compulsory licences.

3.6

In view of the very specific nature of the provisions of the Decision, the fact that national arrangements for compulsory licensing already exist, and the need for urgent action to allow for the export of medicines to countries with public health problems, the Commission proposes implementation by way of a regulation based on Articles 95 and 133 of the Treaty.

4.   Comments

4.1

The EESC fully agrees that action is needed to ensure that countries with limited economic and productive resources - and consequently lacking the necessary instruments to combat endemic diseases and tackle health crises - are provided with basic pharmaceutical products. The proposed Regulation, in compliance with the patents system, enables the supply of patented pharmaceuticals under very specific conditions. However, it does not address the problem of the lack of unpatented medicines in developing countries, as this is not covered by the content of the WTO decision.

4.2

The EESC therefore welcomes the Commission's initiative, which aims to promote the full and uniform implementation of the procedure for granting compulsory licences in relation to patents and supplementary protection certificates concerning the manufacture and sale of pharmaceutical products to countries that have requested them in order to address a significant health problem, and believes that the chosen arrangements are basically suitable. Nonetheless, it believes that the wording relating to some specific points could be improved, as the following comments show.

4.3

The definition of ‘pharmaceutical product’ explicitly refers to Directive 2001/83/EC of the Parliament and of the Council (6) on medicinal products for human use. The WTO General Council Decision does not mention veterinary medicinal products: nevertheless, in order to be able to cope with health emergencies which could occur as a result of animal diseases transferring to humans or contamination of food products of animal origin, the EESC hopes that the scope of the Directive is extended to include veterinary medicinal products, through the adoption of a specific WTO General Council Decision, if necessary.

4.4

The regulation is applicable to WTO members (Article 4), which is logical, being an instrument used to implement an internal decision of this international organisation. The EESC calls upon the Commission and the Member States to continue international discussions and to seek globally applicable solutions that comply with intellectual property rights and current international agreements.

4.5

Article 5 lays down that ‘Any person may submit an application for a compulsory licence’. The EESC believes that the blanket term ‘person’ used to describe the applicant stems from the desire to offer the greatest possible number of production opportunities. Nonetheless, it believes that it is advisable to specify that the applicant must meet all the requirements of European legislation relating to pharmaceutical products so that current production regulations governing citizens' health in the EU can be enforced even if in the case in question the product is intended solely for export.

4.6

The EESC believes that all the relevant authorities need to monitor compliance with production quality standards, which must be the same for the internal market and for exports to countries that do not have adequate health control structures. When implementing the Regulation, adequate checks must be devised for importer country control arrangements, and coordinated action will be particularly necessary in order to avoid (i) fraud or counterfeiting, thus ensuring patients are protected in their home territory (ii) pharmaceutical products subject to compulsory licensing being diverted to another destination, or (ii) illegal re-importation.

4.7

On the sensitive issue of authorised production volumes, the EESC notes a discrepancy between Article 6(2) which lays down that ‘the total amount of product authorised to be produced [must] not significantly exceed the amount notified to the WTO’ and Article 8(2) which asserts that ‘the amount of … product(s) manufactured under the licence shall not exceed what is necessary to meet needs’. To resolve the discrepancy, the EESC suggests modifying the text of Article 6(2) with a view to clarifying that production should not exceed the necessary requirements.

4.8

Since the system implies limited ownership rights, the regulation rightly provides that it should be used in good faith (6th recital) and that the products manufactured pursuant to it should reach those who need them and should not be diverted from those for whom they were intended (7th recital). However, it would be preferable to have these assertions – to which the EESC fully subscribes – written into those Articles setting out the detailed implementation arrangements (e.g. Articles 5 and 6), or in the ones that provide for suspension procedures and the termination of compulsory licences (Articles 12 and 14).

4.9

The EESC endorses the measures envisaged to avoid the unfair use of the compulsory licence. Moreover, it would like to see a specific reference to the fact that the holder of a patent or supplementary protection certificate can report or object to any matters that have not been complied with, particularly with respect to proof of prior negotiation and conformity of production checks as laid down in Article 8 (paragraphs 4, 5 and 8 in particular).

4.10

Article 8(1) appears to contain an error as it refers only to subsequent points 1 through 8, whereas it should also include point 9, which also deals with the licensee.

4.11

Article 8(4) lays down the labelling, marking and packaging rules that govern products manufactured under the present regulation in order to ensure that the product is exclusively exported to and sold in the requesting importing country. The EESC suggests that it should be specified that trademarks, graphic logos and packaging colour too should be distinctive with a view to hindering illegal re-exportation to the EU or third countries.

4.12

Article 10, which lays down that the Commission shall be notified of the compulsory licence granted by EU Member States, does not appear to provide for adequate disclosure with regard to the right holder and the players in the sector. The EESC hopes that, provided that confidential information is protected, suitable arrangements can be made so that these details may be made available to the interested parties.

4.13

The wording of Article 11(2) does not appear to be sufficient to avoid unfair practices, particularly in the case of medicines that are not manufactured in the EU but pass through EU territory, and it consequently lacks teeth. The EESC calls on the Commission to monitor the control arrangements and the implementation of the sanctions approved by the Member States to ensure that, in compliance with the customs Regulation (7), they are genuinely effective, proportionate and dissuasive, thereby avoiding fraud and counterfeiting.

4.14

Lastly, the EESC urges that the European Commission consider how best to implement arrangements, such as bilateral agreements, in order that similar arrangements can also be implemented in non-WTO developing countries.

Brussels, 8 June 2005.

The President

of the European Economic and Social Committee

Anne-Marie SIGMUND


(1)  OJ C 133 of 6.6.2003.

(2)  TRIPS stands for Agreement on Trade-Related Aspects of Intellectual Property Rights: the agreement regulates the possibility of making compulsory changes to intellectual property rights, binding them to certain conditions.

(3)  Declaration on the TRIPS Agreement and public health, adopted on 14 November 2001, http://www.wto.org

(4)  Decision of the General Council on implementation of paragraph 6 of the Doha Declaration on the TRIPS Agreements and public health, http://www.wto.org

(5)  The General Council chairperson's statement, 30 August 2003, http://www.wto.org

(6)  OJ L 311 of 28.11.2001

(7)  Chapter V, Article 18 of Regulation 1383 (2003).


17.11.2005   

EN

Official Journal of the European Union

C 286/8


Opinion of the European Economic and Social Committee on the Proposal for a Directive of the European Parliament and of the Council amending Directive 98/71/EC on the legal protection of designs

(COM(2004) 582 final — 2004/0203 (COD))

(2005/C 286/03)

On 6 December 2004 the Council decided to consult the European Economic and Social Committee, under Article 95 of the Treaty establishing the European Community, on the abovementioned proposal.

The Committee Bureau instructed the Section for the Single Market, Production and Consumption to prepare the Committee's work on the subject. At its meeting of 20 April 2005, the Section for the Single Market, Production and Consumption rejected the draft opinion presented by Mr Ranocchiari.

Given the urgent nature of the work, the European Economic and Social Committee appointed Mr Ranocchiari as rapporteur-general at its 418th plenary session, held on 8 and 9 June 2005 (meeting of 8 June). The draft opinion was rejected in favour of the present counter-opinion tabled by Mr Pegado Liz and Mr Steffens. The counter-opinion was adopted by 107 votes to 71, with 22 abstentions.

1.   Introduction — background to the question

1.1

The present proposal for a directive sets out to amend Directive 98/71/EC. The purpose of the amendment is to rule out the possibility of asserting design rights anywhere in the European Union relating to components of complex products vis-à-vis third party independent suppliers who manufacture, use and/or sell such components for the purpose of repairs in order to restore the original appearance of the complex products.

1.2

Among the sectors affected by the proposal (domestic electrical appliances, motorcycles, watches, etc.), the greatest impact would clearly be in the automotive sector.

1.3

Directive 98/71/EC (‘the directive’) was preceded by the publication, on the part of the Commission, of a Green Paper on the Legal protection of industrial designs which, as well as revealing the results of a wide-ranging study on the matter, also contained a preliminary draft proposal for a directive on the approximation of Member State legislation, together with a preliminary draft proposal for a regulation.

1.4

The green paper also discussed the eligibility or otherwise for protection of components of complex products, particularly those connecting one product to another. The green paper stated that components which fulfil in themselves the requirements for protection should be protected, specifying however that those essential features (known as ‘interfaces’ or ‘interconnections’) ‘which would have to be reproduced necessarily in their exact form and dimensions in order for the component part to fit into the complex product for which it is intended’ should be excluded from protection.

1.5

The proposal for a directive formally presented by the Commission in December 1993 (1) confirmed that a component of a complex product could also be protected if ‘as such’ it fulfilled the requirements for protection, i.e. ‘novelty’ and ‘individual character’ (Article 3), while emphasising that ‘interfaces’ or ‘interconnections’ could not be protected (Article 7(2)).

1.6

The proposal contained another important provision, under which the exclusive rights to protected designs could not be exercised against third parties who, after three years from the first market placement of a ‘complex’ product incorporating the design, used (copied) the design, provided that the design was ‘dependent’ upon the ‘appearance’ of the complex product and that the purpose of the use was ‘to permit the repair of the complex product so as to restore its original appearance’ (Article 14). In practice, this created an important exception from protection for designs for spare parts or repairs (‘spare parts exception’ or ‘repair clause’).

1.6.1

Regarding this aspect of the 1993 proposal for a directive, in its opinion IND/504 of 6 July 1994 (rapporteur: Mr Pardon) the EESC argued as follows:

1.6.1.1

Like all other industrial property rights, design protection results in exclusive rights (monopoly rights). However, the monopoly granted to the owner of a design pertains solely to the appearance (the 'design') of a product, not to the product itself.

1.6.1.2

Design rights therefore grant a monopoly of forms, but not a product monopoly. ‘Protection of the design of a watch does not hamper competition in the watch market’ (Explanatory Memorandum 9.2.).

1.6.1.3

With regard to spare parts (e.g. a fender or a front lamp of a car) covered by the repair clause, the situation is different. The appearance, the ‘design’ of such spare parts cannot be made different as compared with the original component to be replaced.

1.6.1.4

Thus product monopolies are created if design protection is extended to such spare parts; design rights in a spare fender or a spare lamp totally eliminate competition in this product area.

1.6.1.5

This falls foul of the essential purpose of design protection which the legislator is authorised to define in detail.

1.6.1.6

The repair clause contains such a definition: it does not affect the acquisition and the exercise of design rights where they operate as they should; it only stops the exercise of design rights where — as is the case in the repair sector — they cannot operate as they should. In this way the repair clause prevents monopolies from coming into existence, competitors from being driven from the market and consumers from being subjected to the dictate of pricing by a sole supplier.

1.6.1.7

At the same time it prevents the development of monopoly premiums, since the essential precondition for a design premium — that a market exists and consumers can exercise preferences — does not apply if design protection is extended to the spare parts covered by the repair clause.

1.6.1.8

The repair clause proposed by the Commission is therefore supported by the Economic and Social Committee.

1.7

This exception, or repair clause, went some way to meeting the demands of certain industrial sectors, including those imitating car parts, particularly manufacturers of ‘crash parts’. These ‘independent’ suppliers had already sought a derogation from design protection arrangements under existing legislation, taking their case unsuccessfully to the Court of Justice (see the CICRA v. Renault (2) and Volvo v. Veng (3) cases).

1.8

The repair clause contained in the 1993 proposal for a directive was criticised by sectors of industry having interests differing from (or opposing) those of the independent parts producers — in other words, the vehicle manufacturers. The Commission therefore tried a new approach, with an amended proposal (4). In brief, the new proposal provided that third parties interested in copying the design of a given complex product for repair purposes could do so immediately (without waiting for three years from the first placing on the market of the complex product), provided they paid a ‘fair and reasonable remuneration’ (Article 14).

1.9

The ‘fair and reasonable remuneration’ solution was not however deemed acceptable by either the independent producers (5), or the vehicle manufacturers holding design rights (6).

1.10

Strong disagreements also arose in the course of the Council and European Parliament's co-decision procedure: the conciliation procedure had to be invoked, concluding in 1998 with the attempt to harmonise relevant Member State legislation being effectively abandoned, a ‘freeze-plus’ (as it is known to specialists) being applied to existing national legislation, and resolution of the issue being postponed.

2.   The provisions of Directive 98/71/EC  (7) concerning components

2.1

Under the terms of the directive, the protectable design may relate to the appearance of the whole or to a part of a product (Article 1(a)).

2.2

Designs of component parts may also be protected, if they fulfil the requirements for protection laid down for each type of ‘product’: they must be ‘new’ and have ‘individual character’ (Article 3(2)). A component design will however only be recognised as protectable:

a)

if the component part, once it has been incorporated into the complex product, remains visible during normal use of the latter, and

b)

to the extent that those visible features of the component part fulfil in themselves the requirements as to novelty and individual character (Article 3(3)).

‘Normal use’ within the meaning of paragraph (3)(a) shall mean use by the end user, excluding maintenance, servicing or repair work (Article 3(4)).

In practice, the consequence of applying these provisions to the automobile sector is that none of the component parts ‘under the bonnet’, and therefore not visible during normal use of the vehicle (for example, the appearance of the engine's cylinder head), can be protected by design rights.

2.3

It is also provided, in relation to component designs, that those features of a product which are solely dictated by its technical function may not be protected (Article 7(1)). Similarly, those features of appearance (of a component) which must necessarily be reproduced in their exact form and dimensions in order to permit their connection or interconnection to another product (or component) cannot be protected (Article 7(2)). One of the consequences in the car sector is, for example, that while the shape of a bumper or rear-view mirror may be protected by a design right, the configuration of the attachments to fix the part to the vehicle may not.

2.4

Lastly, it should be remembered that:

2.4.1

the directive lays down that three years after the implementation date (i.e. by October 2004) the Commission must submit an analysis of the directive's consequences for Community industry, particularly the manufacturers of complex products and component parts, for consumers, for competition and for the functioning of the internal market. At the latest one year after this date (i.e. October 2005), the Commission must propose to the European Parliament and the Council any changes to the directive needed to complete the internal market in respect of component parts of complex products, and any other changes considered necessary (Article 18);

2.4.2

until such time as these amendments are adopted, Member States must maintain in force their existing legal provisions relating to the use of protected designs of component parts used for the purpose of the repair of a complex product so as to restore its original appearance. The Member States may introduce changes to these provisions only if the purpose is to liberalise the market for such parts (Article 14 — Transitional provision, referred to earlier as ‘freeze plus’). All the Member States have now implemented the directive. Of the EU-25, nine have introduced some form of repair clause, thereby effecting ‘liberalisation’ (Belgium, Hungary, Ireland, Italy, Latvia, Luxembourg, the Netherlands, Spain and the United Kingdom), but the majority (16 Member States) also extend protection to components for spare parts or repairs.

2.4.3

With regard to liberalisation of the secondary market, Article 110(1) of Regulation (EC) 6/2002 of 12 December 2001 already provides that ‘protection as a Community design shall not exist for a design which constitutes a component part of a complex product used (…) for the purpose of the repair of that complex product so as to restore its original appearance’.

2.4.4

Commission Regulation (EC) 1400/2002 of 31 July 2002 on categories of vertical agreements and concerted practices in the motor vehicle sector works to similar effect, although without removing the need for the present Commission proposal.

3.   The content of the proposal for a directive

3.1

The ‘mandatory’ content of the proposal is quite straightforward. It provides that Article 14 (Transitional provision) of Directive 98/71/EC is to be amended, in effect establishing that protection cannot exist for designs for component parts of a complex product which are used to repair the complex part so as to restore its original appearance. In essence, this is the ‘free repair clause from day one’ which some of the interested parties had long been calling for, as seen above.

3.2

The recitals in the proposal's preamble describe the fundamental reasons for a regime of complete, immediate and free ‘liberalisation’:

the sole purpose of design protection is said to be to grant exclusive rights to the appearance of a product, but not ‘a monopoly over the product as such’;

protecting designs for which there is no practical alternative would lead to a de facto product monopoly; such protection ‘would come close to an abuse of the design regime’;

if third parties are allowed to produce and distribute spare parts, competition is maintained;

if, on the other hand, protection is extended to spare parts, then third parties become guilty of infringing design rights, competition is eliminated and the holder of the design right is given a de facto product monopoly.

3.3

It is also emphasised that, at present, the Member States' legal regimes concerning designs differ, jeopardising the operation of the internal market and possibly distorting competition.

3.4

Additional, more detailed reasons are contained in the explanatory memorandum, substantially repeating or encapsulating the conclusions of the EIA and, in part only, of the EPEC report. In brief, among the various options reviewed only ‘liberalisation’ would seem to offer a range of benefits without any serious disadvantages. It would ‘improve the functioning of the Internal Market, allow for more competition in the aftermarket, bring down prices for consumers and create opportunities and jobs for SMEs’ (point 2.2, page 7).

3.5

In contrast, the other options would not be advisable, mainly because:

maintaining the status quo, with the existing disparities between the different national laws, would hamper completion of the internal market;

protection of short duration could allow right holders to raise prices during this period (no specific information is provided to back this up);

a system of authorisation for third parties to use designs held by others, against ‘remuneration’, would raise problems in verifying ownership of rights, adequacy of remuneration and, lastly, the willingness of third parties to pay;

a combination of the two preceding systems, i.e. a short period of protection and a system of remuneration for the ensuing period, would entail relatively high costs, and probably few independent producers would make the necessary investment (cf. Legislative financial statement, point 5.1.2, page 17).

4.   Comments on technical aspects

4.1

The EPEC report, mentioned several times above, accepts that non-original spare parts are not guaranteed to be of the same standards as originals (point 3.7). This is because IS frequently lack the specific manufacturing, quality and technological expertise of the VMs.

4.2

Modern cars are the complex result of an assembly of independent highly technological components (for example, high-resistance steels) whose specifications include not only shape and size, but also quality of assembly (soldering and adhesive techniques used) and materials. It is therefore possible that non-original parts may diverge from the original specifications.

4.3

Vehicles awaiting type-approval are subjected to a series of frontal or lateral crash tests to check that they comply with the requirements laid down by the specific directives on the protection of occupants in the event of collision. These are supplemented by the recent directive on the protection of pedestrians, the purpose of which is to reduce the consequences of vehicle impact on pedestrians. This latter obliges car manufacturers to design the front of the car according to given safety requirements and to perform specific crash tests.

4.4

In contrast, independent spare parts suppliers are not subject to any prior technical tests on the parts they place on the market, insofar as there is no provision for a type-approval system for individual car components, with the particular exception of ‘separate technical units’. Where car parts are concerned, these are the windows, rear view mirrors, headlights and rear lights. For other parts (bonnet, bumpers etc.) there are no technical test requirements prior to placing them on the market and, in consequence, no certainty that they have the same characteristics as those produced for the original equipment. Independent suppliers are only subject to general product safety standards and are liable for losses caused by product defects.

4.5

The proposal also seems to contradict the important directive on ‘End of Life Vehicles’ (ELV), which obliges manufacturers to remove heavy metals from vehicle components and to indicate what substances they contain in order to facilitate recycling. Manufacturers are also required to design vehicles in such a way as to facilitate dismantling at the end of their life and subsequent recycling. Since such obligations of course do not apply to independent suppliers, where there are components (such as bumpers) the composition of which is unknown, there is a potential risk of jeopardising the end-of-life processing cycle, with possible repercussions for the environment and further cost increases.

4.6

The Commission is right to say that design protection is meant to reward the intellectual effort of the creator of a design, and not to safeguard its technical functions or quality (see Explanatory Memorandum, page 9 of the proposal). It follows that it is right to describe design protection and safety as being on two different conceptual levels. However, it is evident that in practice, the liberalisation proposed by the Commission could lead to more components on the market which have not been properly tested under the procedures mentioned in point 4.3 above and which do not meet the requirements of the ELV Directive. Consequently, the advantages to consumers which the Commission claims will flow from liberalisation should be balanced against the greater risks which the same consumers may possibly run.

5.   Final comments and recommendations

5.1

The Committee restates its position, expressed in previous opinions, in favour of recognising the growing importance of intellectual property rights in commercial transactions, including legal protection of industrial designs as a fundamental element in technical innovation and the ensuing need to combat counterfeiting.

5.2

The Committee however reaffirms its understanding that the monopoly conferred on the owner of the design applies only to the external form of the product, not the product itself.

5.3

The Committee thus confirms its view, expressed in previous opinions, that to subject the spare parts covered by the repair clause to the design protection regime would be to establish a product monopoly on the secondary market, contrary to the fundamental nature of legal protection of designs.

5.4

Moreover, the regime introduced under Directive 98/71/EC has permitted differing and even opposing national regimes to survive and, with recent EU enlargement, to multiply in a crucial area of a sector of enormous economic weight in the European market.

5.5

The Commission's proposal therefore seeks to achieve an internal market in this field by aligning national systems, based on liberalisation of use of protected designs for the purpose of repair of a complex product so as to restore its original appearance (secondary market).

5.6

The Committee supports the Commission's proposal, which comes in the wake of earlier legislative initiatives welcomed by the Committee and which may contribute to greater competition, lower prices and the creation of new jobs, particularly in SMEs.

5.7

However, the Committee considers that the proposal would benefit from being better grounded in terms of a clear demonstration of its compatibility with the TRIPS Agreement, from more illustration of its effects on employment and, in particular, from a guarantee that consumers — quite apart from the right to information which seems to have been secured — will not be affected in their choices, either directly in terms of the safety and reliability of products used by independent suppliers, or indirectly by the consequences of the use of such parts in the repair of complex products for which they are intended (basically, motor vehicles) on either their residual market value or on indirect costs (e.g. insurance).

Brussels, 8 June 2005.

The President

of the European Economic and Social Committee

Anne-Marie SIGMUND


(1)  OJ C 345 of 23.12.1993.

(2)  Case 53/87, judgment of 5 October 1988.

(3)  Case 238/87, judgment of 5 October 1988.

(4)  OJ C 142 of 14.5.1996.

(5)  R. Hughes, Legal Counsel ECAR ‘The legal protection of designs’, 1996; and Briefing Notes (1 to 6) of the European Campaign for the Freedom of the Automotive Parts and Repair Market, 1996.

(6)  ‘ACEA comments on the proposed directive regarding industrial design protection’, ref. 97000622, and ‘Key questions about design protection for car parts’, ref. 97000517.

(7)  OJ L 289 of 28.10.1998.


17.11.2005   

EN

Official Journal of the European Union

C 286/12


Opinion of the European Economic and Social Committee on Information and measurement instruments for corporate social responsibility (CSR) in a globalised economy

(2005/C 286/04)

On 15 September 2004, the European Economic and Social Committee, acting in accordance with Rule 29(2) of its Rules of Procedure, decided to draw up an opinion on: Information and measurement instruments for corporate social responsibility (CSR) in a globalised economy (Own-initiative opinion).

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 24 May 2005. The rapporteur was Ms Pichenot.

At its 418th plenary session, held on 8 and 9 June (meeting of 8 June 2005), the European Economic and Social Committee adopted the following opinion by 135 votes to 2 with 18 abstentions:

1.   Introduction

1.1

In July 2002, The European Commission adopted new guidelines for the promotion of corporate social responsibility (CSR), and, in so doing, brought enterprises into its sustainable development strategy. CSR represents a form of implementation at micro-economic level of the macro-economic concept of sustainable development. In concrete terms the Commission defines corporate social responsibility as ‘a concept whereby companies integrate social and environmental concerns in their business operations and in their interaction with their stakeholders on a voluntary basis’. Once it has completed a variety of work in this field, the Commission will present a new communication entitled ‘Strategy for the promotion and development of CSR in the European Union’.

1.2

Directive 2003/51/EC of the European Parliament and the Council, dated 18 June 2003 (1) amends the 4th Directive of 1978 on annual accounts and the 7th Directive of 1983 on consolidated accounts by introducing the following paragraph: ‘To the extent necessary for an understanding of the company's development, performance or position, the analysis shall include both financial and, where appropriate, non-financial key performance indicators relevant to the particular business, including information relating to environmental and employee matters.’

1.3

Good governance of enterprises, which complies with the principles set out by the OECD on this matter, and socially responsible investment are assuming greater importance in the world of business. Socially responsible investment means managing a portfolio of stocks and shares not just with an eye to their financial yield but also taking account of social and environmental criteria.

1.4

The European Economic and Social Committee attaches considerable importance to CSR which it wishes to see become one of the driving forces in a global sustainable development strategy. In the final observation of its opinion on this subject (2), the EESC stated that ‘corporate social responsibility is a key theme for the EESC, which will keep a close watch and actively monitor its further development’. In its opinion, the EESC also took the view that a socially responsible approach had to be based on a real and proactive implementation of existing standards (legislation and collective agreements) and to be backed up by voluntary commitments going beyond those standards. The EESC also envisaged the establishment of a CSR geared to the specific context of the EU.

1.5

Debates are now being held in all EU Member States on the subject of CSR, even though laws and practices differ very considerably from state to state. The drive to increase awareness of CSR in the new Member States must be continued. This situation justifies the drawing-up of the present own-initiative opinion to coincide with the publication of a new Communication following on from the Green Paper and the work of the European Multi-Stakeholder Forum on Corporate Social Responsibility (CSR EMS Forum).

1.6

Between October 2002 and June 2004, the CSR EMS Forum brought together, for an initial civil and social (3) dialogue, representatives of about 20 organisations representing employers, networks of enterprises, employees and civil society bodies representing the other stakeholders. The working method, based, among other aims, on seeking to achieve consensus in order to promote transparency and convergence between the instruments employed, was designed to reach a common diagnosis of drivers and obstacles in respect of CSR and, if possible, put forward joint recommendations on the way forward. In addition to carrying out an appraisal of the factors which impede the promotion of CSR, on the one hand, and those which promote it, on the other, the CSR EMS Forum clearly pinpointed the incentives which should be introduced in order to stimulate awareness amongst stakeholders and to train them. The Forum further recommended that the assessment of CSR be based on the major international texts already endorsed by all the Member States.

1.7

Article I(3) of the Draft Constitutional Treaty stipulates that: ‘the Union shall work for the sustainable development of Europe based on … a social market economy, highly competitive and aiming at full employment and social progress, …’. CSR is one of the instruments designed to maintain balance between the three pillars of the Lisbon Strategy: the economy and growth; employment and the European social model; and the environment. CSR thus provides a means of strengthening social cohesion and making further progress towards the creation of a knowledge-based society. This will bolster the economic efficiency of the EU and make EU enterprises more competitive (4).

1.8

The increase in international trade has been brought about by enterprises of all sizes, even though a considerable percentage of this increase can be attributed to multinationals. Flows of goods, services and capital between states can take place within one and the same group of enterprises. We are indeed witnessing a globalisation of the economy, not just an internationalisation of trade. The growing role played by enterprises in this respect means that they have to assume an ever increasing amount of social responsibility extending beyond state frontiers.

1.9

Against this background, it is no longer sufficient to think solely in terms of the internal market of the EU. In the case of a large number of enterprises, the appropriate reference level has become the global market, in which various practices are being developed which have a bearing, either implicitly or explicitly, on various concepts of CSR. Even though they claim to be universal, each of these concepts represents the expression of a certain view of ethics, society, labour market aspects, broader social aspects and the environment.

2.   From experimentation to maturity: moving towards greater transparency

2.1   International conventions, standards and principles (5)

2.1.1

There is a recognition, at worldwide level, that human rights, the dignity of workers and the future of the planet represent the ethical basis of economic activity. International and European standards have been set in respect of these values.

2.1.2

The international conventions, standards and principles which provide a benchmark at international level comprise: the ILO Declaration on international enterprises; the ILO Declaration on fundamental rights; the guidelines for multinationals set out by the OECD; and the UN's Universal Declaration of Human Rights.

2.1.3

To this list of basic texts should be added the UN guidelines on consumer protection and the safety and quality standards for food products set out in the Codex Alimentarius. With regard to environmental provisions and good governance, reference should also be made to the conventions listed in connection with the new GSP+ measures (6).

2.1.4

The international community has committed itself to achieving the Millennium Goals by 2015. Under the Action Plan adopted at Johannesburg, the CSR is listed as one of the tools for achieving a more equitable and more inclusive globalisation. All the different forms of enterprises and all the bodies which finance them are thus called upon, as a matter of urgency, to make their contribution towards the sustainable development of the planet.

2.1.5

In its report entitled ‘A fair globalisation: Creating opportunities for all (7), the drafting group of the World Commission on the Social Dimension of Globalisation stressed that, if voluntary initiatives were to be credible, they had to be backed up by a concern for transparency and a readiness to be accountable, which presupposed the existence of effective systems for evaluating results, on the one hand, and the provision of public information and inspection mechanisms, on the other hand.

2.1.6

The EESC encourages all EU Member States to ratify all the ILO Conventions which concern them and to incorporate them into national law.

2.2   The body of European standards (8)

2.2.1

The Council of Europe has backed up these international reference points by adopting the European Convention for the Protection of Human Rights and Fundamental Freedoms and the European Social Charter. The EU Member States have provided themselves with their own body of laws, known as the ‘acquis communautaire’ or ‘the existing body of EU law’. The European Court of Human Rights in Strasbourg and the European Court of Justice in Luxembourg are guarantors of this body of European law. The EU's Charter of Fundamental Rights, proclaimed at Nice in 2000, marked a new departure by abolishing the division of rights into civil and political rights, on the one hand, and economic and social rights, on the other hand. The EMS Forum confirmed the underlying principles in respect of the gearing of the whole of this body of law towards the objectives of CSR.

2.2.2

Enterprises are an integral part of human society, not just a component of the economic system. Their primary function is to produce goods and deliver services, thereby creating jobs providing incomes and paying taxes. Enterprises are, thus, an integral part of human society. The economic performance of undertakings has, for a very long period, been measured by means of management tools and accountancy instruments. These tools and instruments, which can be rendered more effective, are subject to regular adjustment.

2.2.3

The European social market economy model does not regard enterprises simply as capitalised companies or bodies for processing contracts but also — and more especially — as collective entities which should provide a forum for social dialogue. Capitalised companies exist only by virtue of their shareholders, whereas enterprises, irrespective of the rules to which they are subject, are an integral part of human society and not just a component of the economic system.

2.2.4

Enterprise models which take account of stakeholders are of real interest, when viewed alongside enterprise models geared solely to the level of return secured by shareholders. Enterprises will manage their responsibility more effectively if they are alert to the expectations of their various stakeholders.

2.2.5

In its Green Paper on Promoting a European framework for corporate social responsibility, the European Commission states that ‘corporate social responsibility is essentially a concept whereby companies decide voluntarily to contribute to a better society and a cleaner environment’. In its opinion on the Green Paper and its opinion on the Social dimension of globalisationthe EU's policy contribution on extending the benefits to all, the EESC points out that: ‘socially responsible behaviour means companies applying existing social rules in a committed way and endeavouring to build a spirit of partnership with relevant stakeholders’.

2.2.6

The Union needs to enhance the perception of what it means to be a European enterprise. It could encourage the dialogue and exchange of views between different players and types of experiences, in terms of measurement instruments for CSR, so that CSR practices continue to stimulate innovation and spread among different categories of enterprises.

2.3   CSR instruments: standards and implementing criteria (9)

2.3.1

The body of standards is implemented by means of specific instruments drawn up by public and private agencies (instruments which, for the most part, originate from common law countries); these instruments take the form of reference criteria and methods of applying these criteria. These instruments provide a variety of interpretations of the body of standards, linked to the socio-cultural background of the authors of the instruments. These implementing instruments have been drawn up by a number of bodies: associations of enterprises, public standards agencies, audit offices, assessment bodies, universities, citizens' associations and public authorities. There are many such instruments. Most of them are private initiatives and they are often in competition with each other and sometimes incompatible.

2.3.2

A number of reference criteria have been publicised: these include international criteria, such as ISO 9000, ISO 14000, SA 8000, AA 1000 and GRI European criteria, such as EMAS, SME Key, Eurosif and the ‘societal balance-sheet’ (10) and national criteria, taking the form of rules, decrees and recommendations.

2.3.3

The operators — specialised analysts working for fund managers and social and environmental impact assessment agencies — consult the international body of standards. These operators draw up more precise criteria in respect of the principles (values) set out in the body of standards. The matching of the criteria to the standards is then measured by means of significant, useful, intelligible and comparable indicators.

2.3.4

These operators are responsible for making the assessment of non-financial risks credible to investors and consumers; this operation is tending to make CSR into a factor with regard to enhancing market competitiveness. The credibility of these operators needs to be ensured by means of self-regulation. The establishment of a standard, namely CSRR-QS 1.0 demonstrates that the profession is ready to take up this challenge.

2.3.5

The Global Pact launched by the UN Secretary-General constitutes one of the voluntary instruments which has been endorsed by over 2 000 enterprises worldwide.

2.3.6

The Global Reporting Initiative (GRI) guidelines are frequently used by a fair number of multinationals. The International Organisation for Standardisation (IS0) started work in 2005 on the specific task of drawing up guidelines on social responsibility (11) (ISO 26000).

2.3.7

Common ground on CSR has been found between the social partners in the framework of the work of the social dialogue sectoral committees (12). The following joint initiatives have been decided: a code of practice in respect of CSR in the hotel sector; a joint declaration on CSR in the field of commerce, a code of conduct in respect of the sugar industry and agreements in the textiles, leather and clothing industries and, more recently, in the banking sector.

2.3.8

In addition to the above agreements, codes of conduct and charters for enterprises have also been established. Some of these documents were decided upon unilaterally by managements, some were drawn up after consultations with the various stakeholders, perhaps including negotiations with representatives of the staff of the enterprises concerned. A number of these codes of conduct and charters have, however, been shown to fall short of the ILO standards.

2.3.9

Other instruments have not been publicised. The precise methodology adopted by assessment agencies, i.e. the indicators used for measuring the correlation between each criterion and the standards concerned, represent the ‘machine tools’ of the economic activity of the agencies concerned, which are in competition with other agencies.

2.3.10

The instruments may be intended for use by the enterprises themselves, on a voluntary basis, or for use by socially responsible investors. They may also be aimed at final consumers. Fair trade labels and environmental quality labels provide information on the choices available to individual consumers. Campaigns to boost awareness, such as the ethical labelling scheme, have helped to bring about a general recognition of the situation. This has, in turn, set in train responsible patterns of consumption. With regard to labelling systems, however, there are sometimes difficulties in drawing up uniform, valid criteria that offer sufficient guarantees and provide truly reliable information.

3.   Making the measurement of CSR more reliable and more transparent

3.1   General observations

3.1.1

Instruments for measuring CSR have to comply with requirements in respect of coherence, relevance and reliability. These characteristics, and the links between them, need to be assessed by means of an approach which is based on universal values and relevant principles, whilst at the same time, respecting diversity.

3.2   The coherence of the instruments

3.2.1

There has to be coherence between the instruments and the body of international reference points.

3.2.2

The instruments also have to be in tune with the body of European standards and the existing body of European law (the ‘acquis communautaire’).

3.2.3

Enterprises always have a liability to comply with local legislation. The added value represented by CSR does, however, vary depending on the socio-economic context in which enterprises operate (formally industrialised countries, emerging economies, poor countries).

3.2.4

In the less advanced countries, major enterprises may be called upon to make good the shortcomings of public authorities by taking responsibility for the health, accommodation and education of their employees and even of their families. In this context, CSR instruments can be useful to get a clear picture of the efficiency and interest for all stakeholders of the actions implemented by companies at their initiative.

3.3   The suitability of the instruments

3.3.1

One and the same criterion can be measured using a variety of indicators. To quote an example, ‘non-discrimination on grounds of gender’ may be measured by determining the proportion of women who are members of boards of directors or who work at management level, the relation between the salaries paid to women and those paid to men or the number of hours of training provided for men and women respectively, etc. Turning to the criterion of ‘job creation’, the indicator for measuring this criterion in the event of the relocation of production, gives an incomplete picture of the situation if it reflects solely the point of view of one area; an overall indicator has to take account of job losses in the original country of production and new jobs in the country to which production is transferred.

3.3.2

Considerable attention needs to be paid to the field real scope of the subject being measured. By way of example, the average salary paid to the employees of an enterprise will not represent a suitable social policy indicator if it imposes conditions on subcontractors under which they are unable to provide their own workforce with decent wage levels.

3.3.3

Bearing in mind that CSR involves going beyond legal requirements, the lack of uniformity of national laws may have damaging effects. By way of example, an enterprise producing a moderate level of pollution will receive a good assessment in a country in which the legislation on emissions into the atmosphere is non-existent, whilst an enterprise producing a similar level of pollution in a country with strict rules on emissions will receive a poor assessment. For this reason, it is essential to regard the social and environmental standards set out in the existing body of EU law as representing the minimum standards, whilst at the same time continuing efforts to improve them.

3.4   The reliability of the instruments

3.4.1

The indicator must make it possible to carry out a comparison, in terms of both time and space:

it must make it possible to measure the year-on-year trend with regard to a given phenomenon;

it must make it possible to measure the same subject in different places. With this aim in view, there is a need to remove ambiguities. For example, investment in vocational training may include only amounts paid to a training body or it may include the wages paid to workers while they are undergoing a course of training.

3.4.2

It is not necessary to seek to aggregate data in all cases. For example, there is a good reason to add up greenhouse gas emissions since they have a global impact; the same cannot be said in the case of the amount of water consumed, since in this case the impact is measured in terms of local resources.

3.4.3

Indicators should be accompanied by ‘quality statements’ which indicate, for example, which players draw up the data in question and the methodology used.

Instruments used to measure physical volumes (such as measuring devices for gas emissions) need to be located in the right places and to be properly calibrated. In the case of indicators of a more qualitative nature, such as indicators used to measure vocational training, there is a need to specify the concept involved and to clarify the method of appraisal to be adopted.

There is a need to specify the party responsible for collecting data since the status of the collectors and their respective role are matters which have an impact. It would be advisable for the parties responsible for collecting data at local level to have their data corroborated by the stakeholders concerned or by bona fide third parties. By way of example, technical data could be corroborated by a verification body, social data could be verified by employee representatives and environmental data could be corroborated by specialised NGOs.

3.4.4

This process — which gives rise to costs for the enterprises concerned — leads to a form of recognition (the introduction of labels, certificates, etc.). The process involves the intervention of a competent and independent external third party. The professional organisations concerned have an important role to play, in respect of both the reason behind the process and the outcome of the process.

4.   Extending the use and improving the quality of the instruments

4.1   Developing the practice of providing information

4.1.1

It is becoming standard practice for large enterprises to issue annual reports. This is in line with calls for transparency with regard to business strategy, including practice with regard to CSR. The quality of the information does, however, continue to be very uneven. Improvements will therefore have to be made.

4.1.2

SMEs and non-quoted companies only rarely figure in the studies that have been carried out on the quality of information; these studies concentrate on large enterprises. Those SMEs and non-quoted companies which have obtained an EMAS or ISO 14001 certification are, however, obliged to produce a regular environmental statement. The cost involved in obtaining certification does, however, prevent many SMEs from embarking upon this exercise, particularly in view of the fact that it involves monitoring the situation at a given moment, thereby making it necessary to carry out regular reappraisals.

4.1.3

For reasons of lack of funding and human resources, SMEs cannot be asked to provide, from the outset, the same level of information as that requested of large enterprises. As a step towards progress in this field, SMEs should, nonetheless, be encouraged to inform their stakeholders of the responsible practices — be they modest or considerable — which they have adopted.

4.1.4

There are also networks comprising private, public and parapublic bodies, including university research bodies, which provide information on CSR and promote this concept at national or European level, such as CSR Europe and the European Foundation for the Improvement of Living and Working Conditions (the ‘Dublin Foundation’) or at world-level, such as the World Business Council for Sustainable Development (WBCSD) and the ILO database. These organisations should be helped to disseminate the results of their work, while informing users in a transparent fashion about the diversity of players and methods.

4.1.5

In a number of EU Member States, educational innovations are being introduced in schools with a view to stimulating consumer awareness. The body of international standards should form an integral part of the subject matter taught to young Europeans.

4.2   Differentiating the instruments

4.2.1

There is a need to reconcile, on the one hand, the existence of a single body of principles and, on the other hand, respect for diversity.

4.2.1.1

Single body of principles: if appropriate, it should be possible to aggregate indicators in order to provide an overall picture of the policy pursued by the enterprise concerned.

4.2.1.2

Diversity: the indicators used must take account of the socio-economic, legal and cultural situations, as well as the type and size of the enterprise, in the various geographical areas and the various vocational sectors.

4.2.2

It would be advisable for the indicators to enable comparisons (benchmarking) to be made on both a geographical and a sectoral basis, namely comparisons between different entities of one and the same enterprise or one and the same group, comparisons between entities operating in the same sector of activity and comparisons between entities operating in one and the same territory.

4.2.3

A number of specific tools should be provided; the indicators used in respect of industry, on the one hand, and services, on the other hand, cannot be strictly identical. Concrete indicators — on the basis of the same concepts — should be adapted in respect of: services of general interest and producers of standard goods and services; market and non-market sector activities; and multinational groups and SMEs; these indicators should be geared to the respective sectors of activity.

4.2.4

In the major industrial and service sectors, it is necessary, in the interests of sectoral cohesion, for the sectoral reference criteria in respect of CSR and the corresponding instruments to be drawn up on the basis of negotiations between sectoral federations — at European or other appropriate levels — representing employers, on the one hand, and workers, on the other hand. The growth in the number of framework agreements between international trade union federations and multinationals is opening up a number of prospects in this regard. It would be a good idea for these criteria and indicators to be drawn up jointly by the partners engaged in the respective social sectoral dialogues, whilst being ready to accept any assistance which may be provided by other stakeholders.

4.3   Extending the area of utilisation of the instruments

4.3.1

The CSR instruments are serving the needs of an ever increasing number of players. Non-financial risks are now growing in importance; these include risks to reputation, risks affecting cohesion (the creation of bad labour relations in enterprises) and the risk of financial malpractice (corruption, insider dealing, fraud, unfair competition and counterfeiting). Investors, in particular a number of managers of save-as-you-earn schemes, ethical investment funds and socially responsible investors, are taking account of these non-financial risks which are becoming marketing criteria.

4.3.2

Export credits provided by banks and credit insurance provided by specialised companies should take account, in their ratings, to a greater extent than they do at present, of the sustainable development policy of the state concerned and of the CSR strategy adopted by enterprises operating in the state in question.

4.3.3

In cases where CSR practices bring about a quantifiable reduction in the risks to which enterprises are exposed, it would be appropriate for banks and insurance companies to take account of this in their tariffs.

4.3.4

The awarding of public contracts is, in most cases, based on the simple rule of accepting the lowest bid. It would be advisable for more qualitative criteria, such as attitude towards CSR, to be included in the tendering rules, in line with the approach to be adopted by the EU in connection with GSP+ in the field of trade preferences.

4.3.5

The EU is actually already including in its bilateral agreements (for example, in the EU-Chile Association Agreement) references to the guidelines set out by the OECD and intends to promote respect for fundamental standards in its trading relations with emerging economies, such as those of Brazil, India and China. The EU should systematically include on the agenda for the trans-atlantic dialogue the subject of reaching agreement on CSR and should also pursue this approach in the EU-Canada dialogue.

4.3.6

The way to bring about the more frequent use of the CSR instruments is by strengthening the mechanisms introduced by the OECD, in particular the quality of the national contact points of all the OECD member states. The EU should encourage other states which are not members of the OECD to comply with the guidelines set out by this organisation. Public authorities in all the OECD member states have a particularly important role to play in ensuring that there is an effective monitoring system.

4.4   Establishing a new generation of instruments

4.4.1

The Global Reporting Initiative (GRI) guidelines are private reference criteria; these criteria, whilst being recognised, are susceptible of improvement. When these guidelines are revised in 2005/2006, European players should participate emphatically in the work of the GRI with a view to making its methods and criteria more appropriate to the European context.

4.4.2

In June 2004, the International Organisation for Standardisation (ISO) decided to set about drawing up guidance on social responsibility. Unlike the standards set out in ISO 9000, dealing with quality management systems and ISO 14000, dealing with management of the environment, the guidelines set out in ISO 26000 would not constitute a generic standard for management systems and would not result in the issue of certificates. An emerging economy, namely Brazil, and a formerly industrialised country, Sweden, are to jointly chair the working party and provide the secretariat. Work starts in March 2005 and is scheduled to last three years. The guidelines are set to be published at the beginning of 2008. The EESC is paying particular attention to this initiative.

4.4.3

The EESC recommends the establishment of an information portal on CSR practices adopted by large enterprises; the portal would be based on information provided by the enterprises themselves. The data would take the form of declarations made by the enterprises themselves; as things stand at present, the data would not be corroborated by the stakeholders concerned. It would be advisable for a comparison to be made, by an institutional observer, of the declarations of enterprises, on the one hand, and the appraisals made by stakeholders, on the other hand. The task of carrying out such a qualitative analysis could be entrusted to a body like the Dublin Foundation. The EESC proposes that this issue be discussed in connection with the work programme of the European Monitoring Centre on Change (EMCC).

5.   Moving from a management initiative to voluntary participation in CSR involving the stakeholders

5.1   Transparency of the action

5.1.1

The commitments entered into voluntarily by enterprises must be publicised and it must always be possible to verify the effectiveness of these commitments. By way of example, an enterprise which declares its intention to open up access to employment to handicapped persons should publish figures showing the proportion of handicapped persons which it has taken on and the adjustments it has made in connection with the relevant jobs. Concrete information that is as comprehensive as possible makes it easier to gauge the extent to which an enterprise is fulfilling its commitments. As responsibility is measured by actions and not by words, enterprises have to demonstrate transparency.

5.2   Making a distinction between ‘communicating’ and ‘reporting’

5.2.1   Reporting

5.2.1.1

‘Reporting’ involves issuing a public document providing an account of the way in which the enterprise concerned perceives the economic environmental and social impact of its activities. By issuing this report, the enterprise concerned accepts that the stakeholders concerned have a legitimate right to raise questions with the enterprise.

5.2.1.2

In capitalised companies, boards of directors have, from the outset, reported to general meetings of shareholders. For a very long time, public authorities have also demanded that information be made available, at least in connection with tax returns and social security contributions. Incomplete information has been provided to wage earners in many European countries for decades. The new departure is therefore that, in future, information will be more comprehensive and be made available to all civil society bodies.

5.2.1.3

The issuing of an overall report therefore provides a response to the explicit and implicit questions raised by stakeholders. Such a report constitutes an instrument of dialogue and it may include interactive consultation systems. On the basis of a detailed analysis of the indicators, the annual report shows the overall performance of the enterprise, i.e. its capacity to reconcile requirements in respect of economic results, social effectiveness and environmental impact. The annual report also sets out objectives, deadlines and implementing measures. This represents a general step forward.

5.2.2   Communication

5.2.2.1

Communicating information for the purpose of enhancing the standing of enterprises and providing the public with a positive picture of the enterprise represents another, quite different, exercise to that of ‘reporting’. The former exercise represents a current public relations practice.

5.2.2.2

With a view to achieving this public relations objective, the communication officers of the enterprise concerned choose to spotlight the commitments entered into by the enterprise and the results which it has obtained in terms of good practice. As part of such a communication action, comparisons may be made with other enterprises in order to highlight strengths and to capitalise on the fact that the enterprise has been awarded quality labels. Such communication actions must not, however, take the place of reporting.

5.3   The quality of information

5.3.1

Irregularities in respect of the information provided regularly occur, be they financial irregularities (false reporting) or non-financial irregularities (misleading advertising). These practices are punished by law.

5.3.2

The provision of a high quality of information requires organisation involving the management board, which would be responsible, for example, for the following tasks: providing an interface between the enterprise and stakeholders; internal steering of work on CSR by establishing a network of correspondents; the collection and dissemination of best practice within the group; reporting; and the definition of a procedure for the internal collection of data, involving: consultations on the collection of data with stakeholders, discussions with representatives of employees tests to determine consistency, and validation by the competent team.

5.3.3

Different stakeholders are involved, depending upon the sector of production, state and territory. The most exhaustive possible lists of stakeholders should be drawn up. Enterprises will have that much more credibility vis-à-vis the media and civil society if they have involved the stakeholders in drawing up their CSR strategy.

5.3.4

The stakeholders concerned and/or bona fide third parties are involved, if the context lends itself to this, in the processes of collecting and issuing reports. In cases where these bodies do not exist, the codes of conduct adopted must, as a minimum requirement, make provision for the establishment of a monitoring committee. In the absence of trade union organisations, committees for health and safety at the workplace and local associations for the protection of human rights should be recognised as valid partners with a view to the organisation of monitoring. To quote a further example, in the case of food safety, research institutes and consumer associations would be involved. Distributors of goods and suppliers of services should involve representatives of consumers and users when drawing up their strategies for sustainable development.

5.4   Dialogue with the stakeholders

5.4.1

Voluntary commitment has to go hand-in-hand with a well-organised dialogue with the stakeholders. Voluntary commitment is only a means to an end; the goal continues to be to create value and economic, social and environmental performance. By entering into voluntary commitments, enterprises therefore express their readiness to take action and to publicise their action.

5.4.2

This implies that enterprises enter into a voluntary commitment to take account of the expectations and interests of stakeholders and to improve the transparency of their actions in this field. The act of agreeing to enter into a dialogue with the stakeholders implies that the enterprise retains control over the commitments which it is to enter into. In the face of the plethora of expectations and interests, enterprises can prioritise their objectives in the light of objective reference criteria and their own strategies.

5.4.3

The various stakeholders are all entitled to express their expectations but not all stakeholders have the same level of legitimacy. It may thus be considered that internal stakeholders frequently have a higher level of legitimacy than external stakeholders. Furthermore, not all legitimate demands can be taken into consideration by enterprises, since they do not have infinite resources. Deciding between the various demands is a task which may be carried out through negotiation and consultation but, in the final analysis, the decision has to be taken by the enterprise concerned.

5.4.4

Dialogue is particularly important for the stakeholders forming part of the value chain. Customers have to help their suppliers and subcontractors to make their activities more socially responsible. Partners must not be subjected to paradoxical requirements, such as having to comply with a high level of labour-law standards whilst being offered inadequate prices for their products. Customers should rather assist subcontractors in order to help them make progress.

5.4.5

There is a need for a social dialogue on CSR in connection with voluntary strategy-formulation by enterprises. The involvement of representatives of employees should cover three stages: the establishment of the enterprises' specific strategy, taking account of the principles of sustainable development; the implementation of the measures required to comply with this strategy; and the independent monitoring of the effectiveness of the measures taken at all levels of the enterprise.

5.4.6

At European level, the voluntary and/or negotiated approach to addressing the implications of CSR in all those multinationals which have set up European enterprise committees marks a decisive step. It also makes it possible to involve the new Member States in this dynamic process. European enterprise committees should play a role in bringing about the incorporation of CSR into the policies pursued by enterprises. They are also the ideal forum for internal stakeholders. It should, however, be borne in mind that a coherent policy on CSR also has to take account of the views of external stakeholders, in particular (a) all members of the overall workforce involved (temporary workers, employees of subcontractors working on the site, craftsmen and other self-employed workers working for the enterprise) and (b) all participants in the value chain (subcontractors, suppliers), whose views should be heeded to the greatest possible extent.

Brussels, 8 June 2005.

The president

of the European Economic and Social Committee

Anne-Marie SIGMUND


(1)  cf. EESC opinion of 22 and 23 January 2003 on the Proposal for a Directive amending the Directives on the annual and consolidated accounts of certain types of companies and insurance undertakings (rapporteur: Mr Ravoet) (OJ C85 of 8.4.2003) and the Commission Recommendation of 30 May 2001 on the recognition, measurement and disclosure of environmental issues in the annual accounts and annual reports of companies (Recommendation 2001/453/EC).

(2)  EESC opinion on corporate social responsibility (Rapporteur: Ms Hornung-Draus) – OJ No. C 125 of 27.5.2002.

(3)  It should be pointed out that the word ‘social’ does not have the same connotation in French as it does in English. This has led French speakers to make a distinction between ‘social’ and ‘sociétal’. The term ‘social’, which in French implies ‘industrial relations’, is used to designate responsibility vis-à-vis internal stakeholders (‘responsabilité sociale’). The term ‘sociétale’, which in French implies ‘the community within which an enterprise operates’, ‘the labour market area’ and ‘the catchment area’, is used to designate responsibility vis-à-vis external stakeholders (‘responsabilité sociétale’).

(4)  The important and complex issue of the link between competitiveness and CSR will not be analysed in this opinion.

(5)  For a more exhaustive list, see the conclusions of the EMS Forum.

(6)  Conventions related to environment and governance principles:

Montreal Protocol on Substances that deplete the Ozone Layer

Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal

Stockholm Convention on persistent Organic Pollutants

Convention on International Trade in Endangered Species

Convention on Biological Diversity

Cartagena Protocol on Biosafety

Kyoto Protocol to the UN Framework Convention on Climate Change

UN Single Convention on Narcotic Drugs (1961)

UN Convention on Psychotropic Substances (1971)

UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988)

Mexico UN Convention against Corruption

cf. EESC opinion no. 132/2005 of 9.2.2005 on the Scheme of generalised tariff preferences (Rapporteur: Mr Pezzini)

(7)  Report of the World Commission on the Social Dimension of Globalisation issued in February 2004;

EESC opinion No. 252/2005 of 9.3.2005 on The social dimension of globalisation – the EU's policy contribution on extending the benefits to all; rapporteurs: Mr Tom Etty and Mrs Renate Hornung-Draus (COM(2004) 383 final).

(8)  For a more exhaustive list, see the conclusions of the EMS Forum.

(9)  See ‘ABC of CSR Instruments’, drawn up by the European Commission's Directorate for Employment and Social Affairs.

(10)  The ‘societal balance-sheet’, drawn up by coops, mutuals and the non-profit sector, is a global diagnostic tool based on the ‘cross-appraisal’ principle, involving internal and external stakeholders of enterprises.

(11)  ‘Guidance and social responsibility’

(12)  See the EESC Information Report on The current state of co-regulation and self-regulation in the Single Market (Rapporteur: Mr Vever).


17.11.2005   

EN

Official Journal of the European Union

C 286/20


Opinion of the European Economic and Social Committee on the Green paper on an EU approach to managing economic migration

(COM(2004) 811 final)

(2005/C 286/05)

On 11 January 2005, the European Commission adopted a Communication addressed to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions: Green paper on an EU approach to managing economic migration.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 24 May 2005. The rapporteur was Mr Pariza Castaños.

At its 418th plenary session, held on 8 and 9 June 2005 (meeting of 9 June 2005), the European Economic and Social Committee adopted the following opinion by 137 votes to 1 with 3 abstentions.

1.   Introduction

1.1

Although five years have passed since the Tampere European Council acted upon the mandate of the Treaty of Amsterdam, the goal — to give the European Union a common immigration and asylum policy — has not been achieved. Some progress has been made and the Commission has drafted numerous political and legislative proposals, but these have not been adequately discussed by the Council. The EESC has worked with the Commission and has drawn up a number of opinions aimed at contributing to a real common policy and harmonised legislation in the field of migration.

1.2

Today we are in a new situation. The Hague Programme adopted in November 2004 sets out to develop immigration and asylum policies over the coming years. The Programme also falls within the scope of the Constitutional Treaty, strengthening the commitment to a future common immigration policy in Europe. (1)

1.3

The Commission's Green Paper covers the central theme of immigration policy: the conditions for admitting economic migrants and the means of managing these migratory flows. Admission laws form the hard core of immigration policy. At present, only national laws exist, which differ greatly from one another and are, in most cases, restrictive.

1.4

Over three years have passed since the Commission drew up its Proposal for a Council Directive on the conditions of entry and residence of third-country nationals for the purpose of paid employment and self-employed economic activities. (2) The EESC and the Parliament issued Opinions (3) supporting the proposal. However, the proposal did not make it past the first reading by the Council. Since then, some Member States have drawn up new laws on economic migrants and immigration-related matters have become hot topics on many political agendas.

1.5

The Thessaloniki European Council of 19-20 June 2003 stressed ‘the need to explore legal means for third country nationals to migrate to the Union, taking into account the reception capacities of the Member States’ (4). In its Opinion on Immigration, integration and employment (5), the EESC stressed the urgent need for the EU to have an active policy for economic migration, and harmonised legislation. Demographic trends in the EU (6) and the Lisbon Strategy mean that Europe will need to adopt active policies for admitting economic migrants, whether they be highly skilled or less skilled workers. Although each country has its own needs and specifics, the opening of channels for economic migration is a characteristic common to all Member States.

1.6

What is more, the citizens of the new Member States are temporarily restricted in their right to freedom of residency and work, which is an anomaly. The EESC hopes that this restriction can soon be removed. During the transitional phase, citizens of the new Member States should have the right to preferential treatment.

1.7

The EESC is concerned to note the political difficulties surrounding immigration policy, and the negative reaction from certain sectors of the public and media. Political and opinion leaders must stop using racist and xenophobic language in debates, and must act with due responsibility and political concern to educate the public.

1.8

In the debate on this Green Paper, all sides must strive to set aside the many prejudices and fears that labour migration currently inspires. The EESC wishes to make a conscientious, rational contribution to this debate.

2.   Comments on the issues raised in the Green Paper

2.1   What degree of harmonisation should the EU aim at?

To what extent should a European policy on labour migration be developed and what should be the level of Community intervention on this issue?

Should a European migration law aim at providing a comprehensive legal framework covering almost any third country national coming to the EU or should it focus on specific groups of immigrants?

Were the sectoral legislative approach to be chosen, which groups of migrants should be addressed as a priority and why?

Do you consider that other approaches — such as a European fast track procedure — should be explored? Could you propose other options?

2.1.1

The EESC states that it is indeed necessary for the admission of economic migrants to be regulated at EU level; to ensure this, there must be a high degree of legislative harmonisation, as set out in the draft Constitutional Treaty. In previous Opinions, (7) the EESC has already called for the EU to rapidly develop a common immigration policy and harmonised legislation. The European Union and the Member States need an open form of legislation that allows labour immigration through channels that are legal and transparent, for both highly skilled workers and those working in less skilled jobs.

2.1.2

The Constitutional Treaty sets the limits for common immigration legislation: ‘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.’ (8) The EESC believes that this limit does not prevent the Union from reaching a high degree of legislative harmonisation for the admission of economic migrants, which could be achieved gradually in order to allow Member States time to adapt.

2.1.3

In line with the Commission's proposal, the EESC believes that an overall (horizontal) legislative framework is preferable to sectoral legislative proposals. The legislative proposal submitted by the Commission received the support of the EESC. It included the conditions for entry and residency of migrants working in paid employment, self-employment or other economic activities for over three months in the territory of a Member State. Additionally, specific rules could be drawn up for particular situations such as seasonal workers, workers transferred within a company, service providers, etc.

2.1.4

If the European Council were to opt for a sectoral approach (geared towards highly skilled migrants), it would be discriminatory in nature. This might be easier for the Council, but it moves away from the provisions of the Constitutional Treaty.

2.1.5

Moreover, even though most national laws deny entry to high and low-skilled workers, illegal immigration, the informal economy and undeclared work are still on the increase. (9) As the EESC made clear in its Opinion, (10) in some Member States there is a clear link between the lack of legal channels for economic migration and the increase in illegal migration.

2.2   Preference for the domestic labour market

How can we ensure that the principle of ‘Community preference’ is applied in an effective way?

Is the existing definition of Community preference still relevant? If not, how should it be changed?

To which other economic migrants (apart from intra-corporate transfers of key personnel) might the logic of Community preference not apply?

Apart from long-term residents, which categories of third-country nationals — if any — should be given preference over newly arriving third-country workers?

Should a priority right — subject to precise conditions — be granted to third-country nationals who have temporarily left the EU after having worked there for a given period?

Would facilitating mobility of third country workers from one Member State to another be beneficial for the EU economy and national labour markets? How could this be put in to practice in an effective way? With which limitations/facilitations?

How can the European Public Employment Services (PES) and the EURES Job Mobility Portal contribute to facilitating labour migration of third-country workers?

2.2.1

The directives to combat discrimination in the marketplace must be observed in the new European immigration legislation.

2.2.2

The principle of Community preference should apply to all individuals belonging to the EU labour market, not just national or Community workers. (11) The EESC believes that the principle of Community preference should extend to:

citizens of Member States;

third-country nationals who are long-term residents; (12)

third-country nationals with legal permission to reside and work in a Member State; (13)

third-country nationals who have legally resided and worked in the EU (although temporarily living in their country of origin).

2.2.3

Promoting the mobility of migrants between the country of origin and the host country is positive for the economic and social development of the country of origin, and it will prevent some migrants from finding themselves in illegal situations; the EESC therefore believes that if the right to preferential treatment is to be introduced and implemented, it should be extended to third-country nationals who have temporarily left the EU, having worked there for a set period of time, if intending to migrate again.

2.2.4

All the reports analysing the problems of the labour market in Europe highlight the low mobility of workers. Promoting mobility is one of the objectives of the European employment strategy. Clearly, migrants can greatly help to improve mobility between Europe's labour markets. Once a high degree of harmonisation has been reached in immigration law, mobility and common management of migratory flows will become easier.

2.2.5

The EURES network coordinates Member States' public employment services, with the aim of covering existing jobs by encouraging mobility between European workers. This network is an important tool for effective management of the EU labour market and the new migratory flows. To aid the management of migration flows, the EURES network should effectively link labour supply and demand in Member States, and should include migrant workers in the system, as they tend to be more mobile.

2.2.6

In the future, the EURES network could also play a major role in helping Member States' consular services to manage new migration in the countries of origin. A system could be set up whereby a vacancy, if not filled by the EU labour market within a maximum of 60 days, could be opened to applicants in the country of origin via the consular services, who would need to employ staff specialised in the labour market and labour migration. The EU delegations could also inform interested parties of the opportunities existing in the EURES network.

2.3   Admission systems

Should the admission of third-country nationals to the EU labour market only be conditional on a concrete job vacancy or should there also be the possibility for Member States to admit third-countries nationals without such a condition?

What procedure should apply to economic migrants who do not enter the labour market?

2.3.1

In its Opinion (14) on the proposal for a Directive on admission, the EESC pointed out that there should be two systems for legally admitting migrants:

2.3.2

A high proportion of economic migration can be channelled by providing job offers while the migrant is in the country of origin. This is the most suitable system for specialised and seasonal workers, and is used by major companies and associations able to recruit workers in their countries of origin.

2.3.3

However, small businesses, craft industries, domestic service and care for dependent persons form a part of the labour market which recruits from the migrant population. In such cases it is impossible for the employer and the migrant worker to have prior knowledge of one another in the country of origin. In some countries, such jobs are filled via the black economy and illegal immigration. In the abovementioned Opinion, (15) the EESC proposed that Community legislation for legal admission of migrants should include a temporary residence permit for seeking work. It would be valid for six months, and would be managed by each Member State in cooperation with the social partners.

Do you consider that the economic needs test is a viable system? Should it be applied in a flexible way, taking into account for instance regional and sectoral characteristics or the size of the company concerned?

Should there be a minimum time period during which a job vacancy must be published before a third-country applicant can be considered for the post?

In what other way could it be effectively proved that there is a need for a third country worker?

Should the economic needs test be repeated after the expiry of the work permit, if the work contract — by means of which the third-country worker has been admitted — has been/will be renewed?

2.3.4

The economic needs test or a specific job vacancy is necessary for managing new migration. This system will make it possible to offer the migrant the job in the country of origin, so that most migration will be channelled through this procedure.

2.3.5

The system requires the EURES network to operate properly and the consular services to have specialised staff. The period over which a job vacancy published throughout the EU should be open to new migrants must be short, i.e. 1-2 months. If the system is prolonged, the employer could find the system inefficient.

2.3.6

It is always advisable for these systems to be managed flexibly, since the European labour markets do not display great mobility. Mobility is higher in more highly skilled, better paid jobs. However, mobility is low in the majority of jobs, even within a single country. For many economic activities and occupations, the labour market is actually highly segmented, giving rise to a number of different markets.

2.3.7

On the expiry of a work permit that has enabled an immigrant to be legally admitted, if the work contract is renewed, there should not be any need to repeat the economic needs test. If the person is registered as a job-seeker with the public employment service of the country of residence, then the economic needs test should not be required either.

What alternative optional systems could be envisaged?

Could a selection system work as a possible general rule at EU level for admission of economic migrants to the labour market and what should be the relevant criteria?

How could employers be provided with comprehensive access to the CVs of applicants in the whole EU and how should EURES be enhanced in this context?

Should the possibility to grant a ‘job seeker permit’ be foreseen?

2.3.8

The Member States' authorities, in cooperation with the social partners, might consider that for some occupations, sectors or specific regions, the labour market should be opened up to migration without testing economic needs. For these flexible systems, various procedures could be implemented, such as temporary job seekers' permits, green cards or quotas (if these have been established in agreements with third countries).

2.3.9

Migrants admitted with a job seeker's permit would have a defined period in which to seek work. The EESC has proposed a period of six months, and in the British system a period of one year is granted. These people should have medical insurance and sufficient financial resources.

2.3.10

In order to create a flexible fast-track selection system in the EU for admitting economic migrants, could be required to fill in a form providing information such as their years of professional experience, qualifications, language skills, relatives in the EU, etc. Each Member State could use this system in line with its requirements. Employers could consult job seekers' CVs via the EURES network. The admission criteria should be based on this information, avoiding any kind of discrimination.

2.3.11

Member States, in cooperation with the social partners, would decide whether to admit migrants with a temporary job seekers' permit. The public employment services would work with job seekers in their search for employment.

2.4   Admission procedures for self-employment

Should the EU have common rules for the admission of self-employed third-country nationals? If yes, under which conditions?

Should more flexible procedures be possible for self-employed persons who wish to enter the EU for less than one year to fulfil a specific contract with an EU client? If so, which?

2.4.1

The EESC agrees that the EU should have common legislation with a high degree of harmonisation for the admission of third-country nationals to work in self-employed activities. In its Opinion (16) on the proposal for a Directive on admission, the EESC expressed its support and made several proposals for improvement.

2.4.2

A specific law could be drawn up, or the Directive itself could include both self-employed workers and workers in paid employment, as proposed by the Commission.

2.5   Applications for work and residence permit(s)

Should there be a combined ‘work-residence permit’ at EU level? What are its advantages/disadvantages?

Or should a single application (for both work and residence permits) be proposed?

Are there other options?

2.5.1

The relationship between residence and work permits shows clear differences in the various Member States. The EESC believes that harmonised legislation is needed for the EU. The authority responsible for issuing permits would be that of each Member State. Permits granted by a Member State should be recognised as such in the rest of the EU.

2.5.2

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

2.5.3

A ‘one-stop-shop’ system would simplify the current procedures.

2.6   Possibility of changing employer/sector

Should there be limitations to the mobility of the third-country worker inside the labour market of the Member State of residence? If so, which (employer, sector, region, etc.), under what circumstances and for how long?

Who should be the holder of the permit? The employer, the employee, or should it be held jointly?

2.6.1

The permit-holder must always be the worker.

2.6.2

Member States should ensure that, when a person has obtained a residence permit on the basis of a job offer from a company, that company immediately fulfils the employment registration requirements for this worker, and registers him or her with the social security system. The first step in this person's career in the Member State which granted the residence permit must be made with the company which offered the job. However, afterwards, the worker should be able to change company without sectoral or regional restrictions.

2.6.3

Nonetheless, it would be desirable for any change of company to be notified to the authorities issuing the permit, at least during the first year of validity. This would act as a check-up system to detect potential fraud by fake companies set up to facilitate immigration.

2.6.4

The immigrant employee, in line with national labour laws, should inform the employer of his departure from the company in advance.

2.7   Rights

What specific rights should be granted to third-country nationals working temporarily in the EU?

Should the enjoyment of certain rights be conditioned to a minimum stay? If so, which rights and for how long?

Should there be incentives — e.g. better conditions for family reunification or for obtaining the status of long term resident –to attract certain categories of third-country workers? If yes, why and which ones?

2.7.1

The starting point for this debate must be the principle of non-discrimination. Migrant workers, whatever the period for which they are authorised to reside and work, must have the same economic, labour and social rights as other workers.

2.7.2

The right to family reunification is a fundamental one; however, it is not properly protected by the EU directive, or by some national laws (17). The EESC calls on the Commission to adopt a new legislative initiative focusing on the proposals of the European Parliament and the EESC (18). The right to family reunification, which is a fundamental human right, should apply equally to all third-country nationals, without one group of migrants being given priority over another.

2.7.3

The Commission's Green Paper does not address the obligations that immigrants should fulfil. The EESC believes that everyone — EU and non-EU citizens alike — have a duty to obey the laws of the country they reside in.

2.7.4

The Constitutional Treaty's Charter of Fundamental Rights must be adhered to when drawing up Community legislation on immigration, as certain national laws currently in force contain provisions that run counter to the Charter.

2.7.5

The EESC agrees with the Commission that certain rights depend on the duration of residency. Rights for those with temporary residency will be different from those with long-term resident status. In specific terms, the EESC proposes a series of rights that should be granted to third-country nationals temporarily and legally working and residing within the EU:

the right to social security, including healthcare;

the right to have access to goods and services, including housing, under the same conditions as nationals;

access to education and vocational training;

recognition of degrees, certificates and qualifications in the context of Community law;

the right to the education of minors, including funding and study grants;

the right to carry out teaching and scientific research in accordance with the proposal for a Directive (19);

the right to free legal aid in cases of need;

the right of access to a free placement service;

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

respect for cultural diversity;

the right to free movement and residence within the Member State.

2.7.6

The Directive on the Status of third-country nationals who are long-term residents mentions some specific rights for these individuals, particularly regarding the stability of their right to residency and the possibility of free movement and residency in other EU Member States. In its Opinion, (20) the EESC expressed its position on new rights. The most important of these are the political and civil rights. In the abovementioned Opinion, the EESC proposed that long-term residents be granted the right to vote in municipal and European elections, like EU nationals. The EESC also adopted an own-initiative opinion (21) calling upon the Convention ‘to provide a new criterion for granting Union citizenship: citizenship should be linked not only to nationality of a Member State, but also to stable residence in the Union’ and for citizenship of the Union to‘be granted not only to nationals of the Member States but to all persons who reside on a stable or long-term basis in the European Union’. The EESC proposes that the Commission adopt new initiatives geared towards this objective.

2.7.7

In 2004, the EESC also adopted an own-initiative Opinion (22) proposing that the European Union and the Member States ratify the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, adopted by the General Assembly of the United Nations in 1990, (23) with the aim of promoting migrant workers' fundamental rights not only in European but worldwide. The EESC proposes that the Commission adopt new initiatives for the ratification of the Convention.

2.7.8

The EU should ensure that immigration legislation meets ILO standards.

2.7.9

Equality between men and women, which is enshrined in the Community acquis, should be guaranteed under immigration legislation. All Community legislation combating discrimination should also be guaranteed.

2.7.10

The EESC does not recommend incorporating discriminatory criteria into the fundamental rights in order to attract certain specific migrant categories.

2.8   Integration, return and cooperation with third countries

What kind of accompanying measures should be envisaged to facilitate admission and integration of economic migrants, both in the EU and in the countries of origin?

In line with EU development policies, what could the EU do to encourage brain circulation and address the potentially adverse effects of brain drain?

Should developing countries be compensated (by whom and how) for their investment in human capital leaving for the EU? How can negative effects be limited?

Should host and home countries have an obligation to ensure the return of temporary economic migrants? If so, in what circumstances?

How can return be managed for the mutual benefit of host and home countries?

Should a preference in terms of admission be granted to certain third countries and how?

Could such preferences be linked to special frameworks, such as the European Neighbourhood Policy, pre-enlargement strategies?

2.8.1

Cooperation with countries of origin must be fundamental to the European policy for admitting workers and managing migratory flows. Their interests — and not just European interests — should be taken into account. The EU must not contribute to creating further obstacles to development. If people from developing countries emigrate to Europe, this should contribute to the economic and social development of these countries.

2.8.2

Some European governments are keen to have the cooperation of the countries of origin in combating illegal immigration, maintaining border controls and returning deportees. The EESC has expressed the opinion (24) that this cooperation must be extended, covering the overall management of migratory flows.

2.8.3

As mentioned in the Green Paper, brain drain is a strong negative factor for countries of origin, because they do not receive any return on the investment they make in training. Moreover, current European policies for recruiting qualified workers may exacerbate this problem considerably. It is therefore important to set up compensation policies for the losses suffered by these countries. The EU must significantly increase investment in cooperation and development programmes that include funding for education and training and research activities in the countries of origin. For example, the EU should target investment in a practical way to facilitate economic and social development by increasing the number of training places in third countries that produce qualified workers, such as teachers, nurses, doctors and engineers. Many third countries restrict the number of training places due to lack of resources with the result that many of their nationals that meet the entry requirements have to wait a long time for a place in the teaching institution. Increasing the number of training places should reduce the impact of the brain drain. Europe must also be more generous in trade negotiations.

2.8.4

Voluntary return to the country of origin should be facilitated for workers able to contribute to development through their professional skills or entrepreneurship. It would therefore be important to improve the possibilities offered by the directive as regards the rights of long-term residents to return temporarily to their country of origin. Residents (nationals of a third country) wishing to return to their country of origin with a work or investment project should not lose the right to residency. ‘Brain circulation’ between home and EU countries will only be possible if European legislation is flexible.

2.8.5

Brain circulation could also be facilitated by encouraging member state nationals of dual heritage to return to their parent's/grandparent's country of origin with a work or investment project of fixed duration.

2.8.6

European cooperation programmes should promote investment projects involving professionals or investors from the country of origin, particularly those who have returned from abroad. Funding should be given to investment projects set up by individuals residing in the EU but wishing to return, even temporarily, to their country of origin.

2.8.7

In its Opinion (25) on the Community return policy and the Opinion (26) on the Green Paper, the Committee shared its views on how voluntary return could contribute to the economic and social development of the countries of origin.

2.8.8

The management of migration in cooperation with countries of origin should be improved. In countries with a high number of migrants, the consular services of the Member States should have specialised staff. The EU delegations in these countries could also cooperate more actively.

2.8.9

The EU could draw up preferential agreements with candidate countries.

2.8.10

Also, in the cooperation agreements that the EU has reached with countries and regional groupings, there could be preferential conditions for access to migration, avoiding any ethnic or cultural discrimination.

2.8.11

Lastly, the EESC reiterates its proposal for integration to be incorporated into European migration policies. The Committee has made many proposals in various Opinions (27) and at the Conference (28) held in 2002. The European Union should draw up a European programme for integration with adequate resources under the new financial perspectives. The EESC will work with the Commission to draw up such a programme. The Green Paper should make reference to all relevant international and European treaties and conventions (29).

Brussels, 9 June 2005.

The President

of the European Economic and Social Committee

Anne-Marie SIGMUND


(1)  Article III-267.

(2)  COM (2001) 386 final.

(3)  See the EESC Opinion in OJ C 80 of 03.04.2002 (rapporteur: Mr Pariza Castaños) and the EP Opinion in OJ C 43E of 19.2.2004 (rapporteur: Ms Ana Terron i Cusi).

(4)  See point 30 of the Conclusions of the European Council

(5)  See the EESC Opinion in OJ C 80 of 30.03.2004 (rapporteur: Mr Pariza Castaños).

(6)  See Commission communication on demographic change, COM(2005) 94 of 16.3.2005.

(7)  See the EESC Opinions on the Communication on a Community immigration policy, OJ C 260, 17.9.2001 (rapporteur: Mr Pariza Castaños) and on the Communication on illegal immigration, OJ C 149, 21.6.2002, (rapporteur: Mr Pariza Castaños).

(8)  Article III-267 5.

(9)  See the opinion on The role of civil society in helping to prevent undeclared work (SOC/172), adopted at the plenary session on 6/7.4.2005 (rapporteur: Mr Hahr)

(10)  See the Opinion on the Commission communication, Study on the links between legal and illegal migration (COM(2004) 412 final) adopted by the plenary session on 15.12.2004 (rapporteur: Mr Pariza Castaños).

(11)  Council Resolution of 20 June 1994

(12)  See the EESC Opinion on the Status of third-country nationals who are long-term residents, OJ C 36, 8.2.2002 (rapporteur: Mr Pariza Castaños)

(13)  See the EESC Opinion on the Conditions of entry and residence of third-country nationals for the purpose of paid employment, OJ C 80, 3.4.2002 (rapporteur: Mr Pariza Castaños)

(14)  See the EESC Opinion on the Conditions of entry and residence of third-country nationals for the purpose of paid employment, OJ C 80, 3.4.2002 (rapporteur: Mr Pariza Castaños)

(15)  See the EESC Opinion on the Conditions of entry and residence of third-country nationals for the purpose of paid employment, OJ C 80, 3.4.2002 (rapporteur: Mr Pariza Castaños)

(16)  See the EESC Opinion on the Conditions of entry and residence of third-country nationals for the purpose of paid employment, OJ C 80, 3.4.2002 (rapporteur: Mr Pariza Castaños)

(17)  See directive 2003/86/EC

(18)  See the EESC Opinions in OJ C 204, 18.7.2000 (Rapporteur: Ms Cassina) and OJ C 241, 7.10.2002 (rapporteur: Mr Mengozzi) and the EP opinion in OJ C 135, 7.5.2001 (rapporteur: Mr Watson)

(19)  See the Commission's proposal for a directive (COM(2004)178) on the admission of third-country nationals to carry out scientific research. See also the related EESC opinion adopted by the plenary session on 27.10.2004 (rapporteur: Ms King)

(20)  See the EESC Opinion on the Status of third-country nationals who are long-term residents, OJ C 36, 8.2.2002 (rapporteur: Mr Pariza Castaños)

(21)  See points 6.4 and 6.5 of the Opinion on Access to European Union citizenship, OJ C 208, 3.9.2003 (rapporteur: Mr Pariza Castaños)

(22)  See the EESC Opinion on the International Convention on Migrants, OJ C 302, 7.12.2004 (rapporteur: Mr Pariza Castaños)

(23)  Resolution 45/158 of 18 December 1990 which came into force on 1 July 2003

(24)  See the EESC Opinion on the Communication on illegal immigration, OJ C 149, 21.6.2002 (rapporteur: Mr Pariza Castaños)

(25)  See the EESC Opinion on the Communication on the Community return policy, OJ C 85, 8.4.2003 (Rapporteur: Mr Pariza Castaños)

(26)  See the EESC Opinion on the Green Paper on the Community return policy, OJ C 61, 14.3.2003 (rapporteur: Mr Pariza Castaños)

(27)  See the EESC Opinion in OJ C 80 of 30.03.04 (rapporteur: Mr Pariza Castaños) and the Opinion on Immigration, integration and the role of civil society organisations, OJ C 125, 27.5.2002 (rapporteur: Mr Pariza Castaños – co-rapporteur: Mr Melícias)

(28)  See the appendix to the Opinion on Immigration, integration and employment, OJ C 80, 30.3.2004 (rapporteur: Mr Pariza Castaños)

(29)  

ILO:

Migration for Employment Convention (revised), 1949 (No. 97)

Migration for Employment Recommendation (revised), 1949 (No. 86)

Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143)

Migrant Workers Recommendation, 1975 (No. 151)

Articles 24 and 26 of the ILO Constitution

Resolution concerning a fair deal for migrant workers in a global economy, June 2004

Council of Europe:

European Social Charter, 1961 (No. 35) and Revised European Social Charter, 1996 (No. 163)

European Convention on the legal status of Migrant Workers, 1977 (No. 93)

European Union:

The EU Charter of fundamental rights, 2000 (Part II of the Constitutional Treaty, 2004)

United Nations:

Declaration on the Human Rights of Individuals who are not Nationals of the country in which they live, 1985

International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 1990 No. 158).


17.11.2005   

EN

Official Journal of the European Union

C 286/28


Opinion of the European Economic and Social Committee on the General agreement on trade in services (GATS) — Mode 4 negotiations (movement of physical persons)

(2005/C 286/06)

On 20 January 2003, the Commission, in a letter from Commissioner Lamy, decided to consult the European Economic and Social Committee, under Article 262 of the Treaty establishing the European Community, on the General agreement on trade in services (GATS)Mode 4 negotiations (movement of physical persons).

The Section for External Relations, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 20 May 2005. The rapporteur was Ms Florio.

At its 418th plenary session, held on 8 June 2005 the European Economic and Social Committee adopted the following opinion by 134 votes to 1 with 7 abstentions.

Introduction

The EESC has established constructive relations of cooperation and dialogue with the European Commission's Directorate General Trade in various fora (conferences, opinions, institutional meetings). In particular, during his mandate, the previous Commissioner, Pascal Lamy held several discussions with the European Economic and Social Committee on issues relating to international trade, human rights, and the WTO negotiations.

The EESC now presents its proposal for a discussion of the GATS Mode 4 negotiations, which are considered to be a key element in ongoing WTO negotiations for opening up international trade in services. The free movement of services in the European Union and beyond its borders is rightly considered to be a potential instrument for regenerating the economy and employment. A more detailed analysis of the obstacles and risks could contribute to balanced development in this sector in an economically and socially sustainable framework of new international agreements.

The temporary physical presence of someone operating on behalf of a business or company that wishes to supply services in another country where he is not a resident, requires deeper analysis for both developing countries and EU Member States.

1.   The GATS agreement

1.1

The GATS agreement was negotiated during the Uruguay Round (1986 — 1994) and entered into force in the beginning of 1995, when the World Trade Organisation replaced the GATT Secretariat. The need for some kind of multilateral rules for trade in services was generally recognised in the 1980s when growth of the service sector (about two thirds of GDP and employment in the EU) and trade in services accelerated and the borderline between goods and services became ever more difficult to define. Increasingly exports of goods require exports of services, such as installation, training and back-up or other services. Also the trend towards more market-based approaches to state or local monopolies, e.g. electricity, telephone and telegraph, urban and rail transport, opened interesting new markets for international trade in services (1). Although the principal aim is the liberalisation of trades in services, the GATS agreement does not force any Member to liberalise to a greater degree than that with which they feel secure and may also limit both the MFN (Most Favoured Nation) principle and National Treatment of Foreign suppliers. The right to regulate and introduce new regulations in the service markets is also clearly stated. No sectors are in principle excluded, except those involving ‘the exercise of public authority (2)’.

2.   The modes of supply

2.1   The logic between the different modes

2.1.1

According to Article I para. 2. in the GATS agreement ‘trade in services’ is defined as the supply of a service:

a)

from the territory of one Member into the territory of any other Member;

b)

in the territory of one Member to the service consumer of any other Member;

c)

by a service supplier of one Member, through commercial presence in the territory of any other Member;

d)

by a service supplier of one Member, through presence of natural persons of a Member in the territory of any other Member.

2.1.2

These modes of supply are usually called Modes 1, 2, 3 and 4. Mode 1 is when services are provided remotely (by post, fax, telephone or internet). Under Mode 2, the consumer travels abroad to receive the service (tourism is the most common example); Tourism is the most typical example of Mode 2, Mode 3 is about establishing a commercial presence in another Member (investment) and Mode 4 is when people enter a country (temporarily) to provide a service — either because personal contact with the client is needed or because services must be performed on-site.

2.1.3

Modes 3 and 4 are often closely interlinked. Companies often rotate their senior level personnel and specialists between offices in different countries — this internal mobility is essential to the effective provision of the services they provide. But the provision of services through Modes 1 and 2 can also be facilitated by Mode 4. Thus, for example, business visitors can negotiate and conclude contracts through these modes of supply.

2.1.4

Due to the interlinkages between the modes of supply, the macroeconomic effects — trade creation, growth and employment, competition, better service supply and lower prices for the consumers — of further liberalisation of just one Mode, e.g. Mode 4 — is almost impossible to estimate, as an OECD study on GATS Mode 4 states (3). Studies of the trade, growth and employment effects of Mode 4 liberalisation are further hampered by the lack of statistics on temporary movement under Mode 4. The real issue is not the extent of the benefits to be obtained under Mode 4 but rather which benefits may be guaranteed and which negative impacts can be minimised. Many businesses claim that trade has been obstructed by the red tape involved in securing visas and work permits.

2.1.5

GATS Mode 4 covers a very particular form of movement of persons. It has three essential features: 1) it is temporary; 2) it is decided, and its purpose is controlled by the service supplier; 3) it neither defines nor protects the rights of the employees concerned, which may be regulated by any State of destination that is a WTO Member. Labour migration under GATS Mode 4 is temporary migration at the initiative of the service supplier for the provision of a service. Mode 4 could also apply to situations where the service supplier could oblige an employee to travel beyond his natural boundaries in order to work.

2.1.6

It is important to note that Mode 4 is substantially different from the principle of free movement of labour in the EU/EEA. In the EU it is about the individual's right to choose where to live and work. In the case of Mode 4 it is about the right of a service supplier to enter a country (the EU) for a certain period of time in order to provide a service.

2.1.7

Movement of labour comes primarily under the purview of immigration and labour market policies rather than that of international trade. There is a risk that temporary labour mobility will lead to a situation, whereby under WTO rules labour becomes a commodity. The governing principle in the ILO is that ‘Labour is not a commodity’ (4). Mode 4 is about people, human beings. Human rights, workers' rights and working conditions are nevertheless not mentioned in the GATS agreement, but could and should be observed in both Members requests, offers and commitments as the EU and the Member States have done.

2.2   Mode 4 and the Annex on Movement of natural persons supplying services under the Agreement

2.2.1

The link between trade, migration and labour market regulation embodied in Mode 4 is recognised in the GATS Agreement by a specific Annex. Point 2 in this annex states that the GATS shall not apply to measures affecting natural persons seeking access to the employment market of a Member, nor shall it apply to measures regarding permanent migration, residence or employment on a permanent basis. In a footnote to the Annex it is stated that: ‘the sole fact of requiring a visa for natural persons of certain Members and not for those of others shall not be regarded as nullifying or impairing benefits under a specific condition’. Finally, the Annex states that countries should remain free to regulate the entry of natural persons into, or their temporary stay in, their territory, (including visa policy) provided that the measures adopted do not have a trade restrictive effect. A visa requirement for certain nationalities is not regarded as having a trade restrictive effect. The annex makes it clear how sensitive an issue temporary mobility is for WTO Members.

2.3   EU commitments

2.3.1

The commitments that WTO Members have made for Mode 4 differ from those made for other Modes in certain respects, the most important being that they have tended to be made horizontally, applying to all sectors cited in a Member State's list of commitments. This is a reflection of the way that immigration officials regulate temporary migration, with rules applying on the basis of purpose of entry, skills, education and other factors regardless of the sector involved.

2.3.2

Although most countries made commitments for Mode 4 at the end of the Uruguay Round, it is estimated that over 90 % of those commitments apply only to highly skilled workers (senior managers, professionals and specialists with proprietary knowledge) or to business visitors. Even for the highly skilled, most commitments have value only if the service provider is also able to set up a commercial presence in the host country (Mode 3) — so-called ‘intra-company transfers’. Very few countries have made commitments in relation to service providers who do not have a commercial presence in the host country — whether they are employees of a firm established overseas, or independent service providers (freelance, individual professionals or entrepreneurs etc). Even fewer have covered what might be considered to be middle or lower skill levels. In fact, most countries have made 90 % of the commitments for highly skilled workers only.

2.3.3

As such, Mode 4 commitments barely touch on the level of activity that could take place, and — indeed — is crucial in certain sectors where Mode 4 delivery is the main mode of supply (e.g. professional services, including health care workers) or where there is no commercial presence (e.g. construction services, computer services requiring on-site presence).

2.3.4

In the Uruguay Round, the EC and its Member States made certain commitments which allow some foreign nationals to temporarily enter the European Union for the purpose of the provision of services. They include commitments made during the extended negotiations on Mode 4 after the end of the Uruguay Round.

2.4

The European Commission divides Mode 4 service suppliers into three broad categories — and other WTO Members use similar ones:

Intra-corporate Transfers (ICTs): An employee of an enterprise who is temporarily transferred from an establishment of that enterprise outside the EU (head office, subsidiary, branch) to an establishment within the EU.

Business Visitors (BVs): A representative of a foreign services supplier who temporarily enters the EU for one of the following purposes: (a) to negotiate the sale of services; (b) to conclude contracts to sell services; or (c) to set up an establishment (subsidiary, branch or office). BVs must not themselves supply services in the EU.

Contractual Service Suppliers (CSSs): This category includes employees of juridical persons (EJP) and, on the basis of the European Commission's new offer, could also include Independent Professionals (IP). EJPs temporarily enter the EU as employees of an overseas enterprise that has obtained a service contract in the EU. IPs are self-employed persons who temporarily enter the EU to fulfil a service contract in the EU that they themselves have obtained.

2.5   EU requests to other WTO Members

2.5.1

The EU made specific requests to increase the level of commitments for Mode 4 to 106 WTO Members, which were modulated to reflect the level of development of the Member concerned and its importance as a trading partner. This reflects the EU's own export interests for this mode of supply. The EU is seeking to bring most major WTO partners up to a similar level of commitment. The following requests were made:

1)

Intra-corporate transfers (ICT): Allow transfers between affiliated companies of key personnel (managers, executives and specialists) for up to three years and also include short-term training objectives in these agreements.

2)

Business visitors (BV): transfers for stays of up to 90 days.

3)

Contractual service providers (CSS): The initial requests were made in relation to employees of juridical persons only. Only certain service sectors were covered (e.g. Professional and business services, environmental services), with different lists of sectors requested of OECD countries and developing countries. In addition, requests under this category have not been made to least developed countries. The requests submitted to WTO partners in January were restricted to Independent Professionals for major trading partners.

2.6   Requests by WTO Members

2.6.1

With regard to negotiations, the European Union received over 50 requests from other Member States to develop Mode 4 at various levels: on the one hand greater transparency regarding commitments was requested, whereas, on the other hand, some requested the abolition of almost all restrictions applicable to most services.

2.6.2

A large majority of the requests have come from developing countries, and for almost half of these developing countries, it consisted in the elimination of all restrictions (which would imply complete free movement of people), to cover lower skill levels, to remove economic needs tests and labour market testing linked to Mode 4. Three countries effectively want us to abolish our visa regime and grant an automatic right of entry and stay. Several want recognition of third country qualifications or the extension of the EU Directives on Mutual Recognition to third country nationals who have obtained their qualifications in the EU.

2.6.3

The Second LDCs Trade Ministers meeting in Dhaka, Bangladesh, 31 May — 2 June 2003 stated in its Dhaka Declaration: para. 15 iv.: ‘Free access to developed country markets for temporary movement of natural persons, particularly unskilled and semi-skilled service providers, under Mode 4 by inter alia recognising professional qualification, simplifying visa procedures and without asking for Economic Needs Test’.

3.   EU offer

3.1

Significant improvements are being offered in a number of areas: for contractual service suppliers (CSS), commitments have been agreed on 22 sub-sectors (mostly professional and business services), as well as another four sectors for independent workers, for a stay of up to six months. For the same core group, the EU has committed itself not to apply Economic Needs Tests (ENT), but, instead, to introduce a numerical cap on the number of service suppliers covered by this commitment. The level of the cap and the modalities of its application still need to be determined. Furthermore, for young people, training for a maximum period of 12 months could be foreseen for intra-company transfers. This EU offer is unquestionably amongst the most ambitious and proactive offers made.

4.   Third country offers

4.1

Only a few (38) WTO Members have made preliminary offers for further liberalisation of trade in services within the last deadline laid down in the Doha Declaration, despite the fact that this covers 91.6 % of world trade. The level of offers for both industrialised and developing countries remains relatively low and limited, even in terms of quality. Nevertheless, it should be borne in mind that certain countries, i.e. India, the Philippines, Thailand, and Indonesia, reformulated their requests on the basis of the new EU offer.

5.   Temporary stays, the labour market and social cohesion

5.1

The problems relating to Mode 4 cannot be restricted to trade. They also concern broader migration and labour policies. The world of migration includes the subset of temporary migration, which in turn includes migration for purposes of employment. The GATS Mode 4 constitutes another subset.

5.2

However, Mode 4's scope is not clearly defined. It is necessary to clarify the link between temporary migration for employment purposes and temporary migration to establish a commercial presence. But, above all, the term ‘temporary’ must be defined as it could mean anything from a few months to over five years. In addition, the types of employment covered have not yet been defined. Furthermore, the EU (Treaty) and the WTO do not apply the term ‘temporary migration’ in the same way.

5.3

It is clear that Mode 4 should only apply to a restricted stratum of highly-qualified personnel and independent contractor professionals. However, if, in the future, the application of Mode 4 were to be extended to other employment categories, a far more specific and restrictive definition of ‘temporary’ would be required, as would a more precise definition for ‘service suppliers’. In any case, and bearing in mind that trade agreements are not ideally suited to dealing with labour laws, an element of clarity could be brought to Mode 4 by applying the terms of the 1998 ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up (5). The latter is in itself a legal reference point. The Charter of Fundamental Rights adopted in Nice is of primary importance to EU Member States, especially since it has now been incorporated in the Constitutional Treaty.

5.4

This would be very important for many independent contractor professionals, as well as for all issues relating to pension schemes and fighting unemployment. Clearly, emigration must be managed at national level and not by the WTO. Similarly, certain labour-related aspects, including human rights and social security, should be dealt with at an international level by organisations such as the ILO.

6.   Conclusions and recommendations

6.1

The European Economic and Social Committee recognises the importance of a further liberalisation of the global trade in services for economic growth in both developing and industrialised countries. Nevertheless, there is still no impact analysis for the real social consequences and the labour markets in the service supplier's country and the host country.

6.2

The EESC also recognises the importance of the right of WTO Members to regulate and to introduce new regulations on the supply of services.

6.2.1

The EESC supports the preliminary offers for a further liberalisation made by the EU under the GATS Mode 4, but conditional on the observance of core labour standards, national labour law and existing collective agreements in host countries. The Committee approves and welcomes the fact that the Commission has included workers' rights in its list of commitments.

6.2.1.1

The proposal to add a category of Intra-Company Trainees to the offer might be of great interest both for EU multinational companies and for young managers and companies in third countries and is thus welcomed. Needless to say, the ‘training’ nature of these relationships must be clearly defined to avoid the risk that they might translate into underpaid work in the service sector that would be in breach of national training regulations — whether in the form of legislation or collective agreements — or of international labour standards.

6.2.2

The EU also proposes new commitments concerning Independent Professionals as Contractual Service Suppliers, although only in a number of sub-sectors and for highly qualified experts (6).

6.2.3

The EESC underlines the importance of taking measures by the Members to enforce the protection of temporary workers and to guarantee non-discrimination and the introduction of proper surveillance mechanisms, e.g. along the principles of ILO Convention No. 95 concerning the protection of wages.

6.2.4

In particular, the most recent enlargement or the forthcoming enlargement(s) of the EU with countries where collective agreements are rare will require the introduction of equally effective control mechanisms.

6.2.5

The EESC considers that in order to further liberalise trade in services, the EU should first take steps to:

1)

specify that the Directive on Posted Workers is also the basis for the temporary movement of workers;

2)

clarify which legislative reference framework is to apply to the liberalisation of services within the EU internal market (see draft Directive on Services in the internal market), which, in recent months, has been at the centre of a particularly contentious debate;

3)

establish a clear distinction between services of general interest (including health, education, energy, gas); economic and non-economic services; services for commercial and non-commercial purposes, and services of another nature.

6.3

The EESC is in principle favourable to the proposal made by the European Service Forum to create a GATS Permit. This would make the movement of service providers both from and to the EU smoother and also make monitoring of the use of Mode 4 more transparent.

6.4

For many developing countries the risk for a ‘brain-drain’ is a reality. Many developing countries face a shortage of e.g. nurses, as they move to developed countries where there are shortages of skilled personnel. The EESC proposes that the commission and the MS should develop rules or practices (as the health sector in the UK has done, particularly in the nursing profession, where a code of ethics for recruitment polices has been drawn up) to avoid a situation whereby developing countries lose their competent and specialised workforce and thus their ability to take care of the needs of their own populations.

6.5

The EESC urges the EU and the MS not to accept any widening of Mode 4 to semi-skilled or unskilled workers for the time being. This would effectively lead to a situation, in which the basic principle of the International Labour Organisation (ILO), that ‘labour is not a commodity’ could be jeopardised. Semi- and unskilled foreign workers are almost always in a weak position in the labour market. Foreign managers and experts or highly skilled independent professionals are usually in a strong position and are well protected.

6.6

The EESC cannot accept that the temporary movement of workers, de facto temporary migration, would primarily be regulated through the WTO and the GATS agreement, without any guarantees for human rights or the observance of core labour standards, such as non-discrimination. A functioning cooperation between WTO and at least the ILO, the International Migration Organisation (IMO) and the UN to protect the rights of temporary migrants must be a prerequisite for further enlargement of the scope of the Mode 4 in the WTO. In this respect, the ILO's role would be enhanced as a tripartite focal point for dialogue, and as a possible coordinating body.

6.7

The EESC believes that European Governments should reconsider ratification of the UN's International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, which came into force in July 2003. That Convention defines rights of temporary migrants; for example, ‘specified-employment workers’. Even in the absence of ratification, as a set of internationally recognised standards, this Convention should be used to guide policy (7). ILO Convention No. 146 has been ratified by six EU and accession states (before and after enlargement) and four other European States. Its provisions should be applied, along with those of Recommendation No. 151. The relevant Articles of the European Social Charter (Council of Europe) must be applied. The measures taken by the EU under GATS Mode 4 must be compatible with those standards, especially those to which EU Members have adhered.

6.8

The EESC welcomes the European Parliament GATS resolution (12 March 2003), especially points 5, 10 and 11, and urges the Commission and the Member States to take it into account in the GATS negotiations.

Point 5: Recalls that the GATS is a voluntary agreement and that its principles do not impose either privatisation or deregulation, nor do they prescribe a particular degree of liberalisation as such; insists, however, that developing and least developed countries should not be pressured to liberalise services, in particular public services.

Point 10: Welcomes the offer to grant developing countries, in particular, better opportunities to supply services to the EU market through temporary cross-border movement of qualified personnel, but insists that negotiations must ensure protection of cross-border workers against all forms of discrimination; recalls that in all these cases, EU and national working conditions, minimum wage requirements and any collective wage agreements must continue to apply, regardless of whether or not the employer is registered in an EU Member State.

Point 11: Stresses that ‘commercial presence’ (investment) must continue to be governed by domestic tax, social and other regulatory measures; insists on the right to make foreign commercial presence conditional on respect for the ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy and the (in summer 2000) revised OECD Guidelines for Multinational Enterprises.

Brussels, 8 June 2005

The President

of the European Economic and Social Committee

Anne-Marie SIGMUND


(1)  Refer to the European Economic and Social Committee's activities during the Dutch Presidency in 2004. ESC opinion on the preparation of the 4th WTO Ministerial Conference in Qatar: ESC position, 17 October 2001 (OJ C 36, 8.2.2002 p. 85). ESC opinion on The European Airline Industry: from Single Market to Worldwide Challenges of 26 January 2000 (OJ C 75, 15.3.2000 p.4). EESC opinion on the Green Paper on Services of General Interest of 11 December 2003 (OJ C 80, 30.03.2004 p. 66). EESC opinion entitled For a WTO with a human face: the EESC's proposals of 26 March 2003 (OJ C 133, 6.6.2003 p. 75)

(2)  These services and their regulation vary from country to country.

(3)  http://www.oecd.org/document/25/0,2340,fr_2649_34145_31773849_1_1_1_1,00.html

(4)  ILO International Labour Conference, Philadelphia Declaration, 1944

(5)  http://www.ilo.org/dyn/declaris/DECLARATIONWEB.INDEXPAGE?var_language=EN

(6)  The UNICE report on Cancun, Moving Forward Together, July 2003, defines Mode IV as ‘temporary movement of key business personnel’.

(7)  For example, the GATS agreements make no mention of the rights of spouses or children.


17.11.2005   

EN

Official Journal of the European Union

C 286/34


Opinion of the European Economic and Social Committee on the Proposal for a Council Directive on the supervision and control of shipments of radioactive waste and spent fuel

(COM(2004) 716 final — 2004/0249 (CNS))

(2005/C 286/07)

On 12 November 2004 the Commission decided to consult the European Economic and Social Committee, under Article 31 of the Treaty establishing the European Atomic Energy Community, on the abovementioned proposal.

The Section for Transport, Energy, Infrastructure and the Information Society, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 19 May 2005. The rapporteur was Mr Buffetaut.

At its 418th plenary session, held on 8 and 9 June 2005 (meeting of 9 June 2005), the European Economic and Social Committee adopted the following opinion by 120 votes with 6 abstentions.

1.   Introduction

1.1

Council Directive 92/3/Euratom of 3 February 1992 regulates the supervision and control of shipments of radioactive waste between Member States.

1.2

The Directive applies both to shipments between the Member States and to import into and export out of the Community. It ensures that Member States of destination and of transit are informed about the transfer of radioactive waste to or through their country. They have the authority to approve such transfers or reject them.

1.3

As regards export, the authorities of the third country of destination are informed about the transfer.

1.4

After more than a decade of generally satisfactory application, the Commission reached the conclusion that some revisions were necessary for practical and legal reasons.

1.5

The revision process was initiated in the context of the fifth phase of the SLIM initiative (Simpler Legislation for the Internal Market).

1.5.1

Its main objective was to look into the feasibility of:

incorporating new technical provisions;

aligning the provisions of the Directive with new Euratom directives and certain international agreements;

clarifying and, where appropriate, removing inconsistencies in those provisions dealing with the right of third countries to be consulted on the proposed shipment of radioactive waste in case of export;

extending the scope of the Directive to include irradiated fuel for reprocessing;

examining and clarifying those rules in the Directive which provide for the refusal to grant approvals for shipments of radioactive waste;

simplifying the standard document used for notification;

replacing the Directive with a Regulation.

1.5.2

At the end of this process, 14 recommendations were put forward and served as the basis for further consultation on revising the Directive.

2.   The new Proposal for a Directive

2.1

The European Commission puts forward four reasons for revising Directive 92/3:

consistency with the latest Euratom directives;

consistency with international conventions;

clarifying the procedure in practice: this involves clarifying certain concepts, amending existing definitions or adding new ones, eliminating inconsistencies and simplifying the procedure;

extension of the Directive's scope to spent fuel: Under Directive 92/3, spent fuel for which no use is foreseen is considered as ‘radioactive waste’ and shipments of such materials are subject to the uniform control procedure laid down in the Directive. Shipments of spent fuel for reprocessing are on the contrary not subject to such a procedure. The Commission wishes to bring spent fuel for reprocessing within the scope of the Directive since it believes that it is illogical to apply or not apply legislation according to the intended use of the spent fuel when the material is identical.

2.2

Finally, the Commission wishes to improve the structure of the text from the point of view of legislative technique.

3.   General comments

3.1

As the Commission points out, the Directive presented certain practical problems regarding its application. When consulted within the framework of the SLIM initiative, the nuclear industry drew up recommendations advocating the clarification and simplification of existing procedures in order to improve the system's efficiency, increase predictability and save time.

3.2

The Commission is justified in its decision to revise the Directive to ensure consistency with the latest Euratom directives and with international conventions, in particular the Joint Convention on the Safety of Spent Fuel Management and the Safety of Radioactive Waste Management, and in order to simplify it.

3.3

Efforts to simplify existing procedures, e.g. the generalisation of automatic approval (Article 6), the introduction of an acknowledgement of receipt (Article 8), modifications to the use of languages in the standard document (Article 13), are to be welcomed. However, the SLIM approach could probably have been taken further. In fact, several difficulties identified in practice persist. Furthermore, some of the proposed amendments raise queries regarding their practical implementation. Other amendments run the risk of obstructing the efficient transfer of radioactive waste and spent fuel. Finally, the industrial sector has expressed concern regarding the extension of the application of Directive 92/3/Euratom to spent fuel for reprocessing since there is a risk of making transfers more difficult and increasing administrative procedures without raising the level of protection for the population and workers, who are already safeguarded by other legal instruments, viz., the Joint Convention on the Safety of Spent Fuel Management and the Safety of Radioactive Waste Management, and existing rules on the transport of radioactive materials.

4.   Specific comments

The drafting of the proposal raises important points of principle.

4.1   The new Directive and the free movement of spent fuel intended for reprocessing

4.1.1

One of the new proposal's major innovations is the extension of the Directive's scope to all spent fuels, irrespective of whether they are to be reprocessed or stored permanently.

At present, spent fuel intended for reprocessing, which unlike radioactive waste is considered as goods awaiting further use, does not fall within the scope of Directive 92/3.

4.1.2

This distinction between spent fuel to be stored permanently, which is considered as radioactive waste, and spent fuel for reprocessing has been explained by the Commission on several occasions and in clear terms (answers to European Parliament Written Questions E-1734/97 and P-1702/02). Furthermore, it reflects the right of each Member State to formulate and implement its own management policy for spent fuel as well as the different strategies that exist in this area.

4.1.3

The Commission cites radiation protection and logic (the materials are the same, only the destination changes) as arguments for extending the scope of application to spent fuels for reprocessing. If radioactive materials are to be subject to the same system irrespective of their destination, then it is vital to ensure that the new Directive is not misapplied in order to obstruct the transfer of spent fuel. For this reason, the automatic approval procedure serves to balance the document and should be retained. Another point that would further balance the document would be to define more precisely the grounds for a transit State's refusal to authorise a transfer.

4.2   State of transit considerations

4.2.1

The new proposal defines a country of transit as ‘any country other than the country of origin or the country of destination, through which territory a shipment is planned or takes place’. How should the word ‘territory’ be defined? Does it include land, territorial waters, the exclusive economic zone and airspace?

4.2.2

These concepts must be clearly defined since the consequences of these provisions could vary considerably depending on whether, for instance, the exclusive economic zone is considered as an integral part of the country's territory. It is important to bear in mind that under international law, a State's powers vary according to the part of its territory in question.

4.2.3

International public law grants States full sovereignty over their territorial waters, but not over their exclusive economic zone and the continental shelf, where their rights are restricted. The EESC believes that a State of transit's territory should be interpreted as the State's land territory, airspace and territorial waters, but should exclude its exclusive economic zone.

4.2.4

This position is all the more justified by the fact that exclusive economic zones do not exist in the Mediterranean since its size does not allow for them. The European Union includes many Mediterranean countries, which would not benefit from the same rights as other Member States if the exclusive economic zone were to be included. Furthermore, the EESC recommends that this more precise definition of a transit State's territory should be applied in the light of internationally recognised navigation rights and freedoms, in particular, the right of innocent passage through territorial waters, as explicitly specified under Article 27(3)(i) of the Joint Convention.

4.3   Defining a State of transit's rights

4.3.1

It is appropriate to examine the extent of rights conferred upon States of transit under this Directive.

4.3.2

The proposal foresees prior authorisation by States of transit, irrespective of whether they are EU Member States or third States.

4.3.3

When Member States are required to request prior transit authorisation through a third State, they should ensure that the State respects the safety standards set out in the Convention.

4.4   Conditions governing the exercise of rights conferred upon a State of transit

4.4.1

Article 27(3)(i) of the IAEA Joint Convention stipulates that nothing in the Convention's provisions ‘prejudices or affects the exercise, by ships and aircraft of all States, of maritime, river and air navigation rights and freedoms, as provided for in international law’.

4.4.2

In fact, the SLIM team had suggested that it would be advisable to include such a provision in the Directive.

4.4.3

At all events, it would be necessary to specify more precisely the grounds that would entitle a Member State of transit to refuse transit authorisation. Directive 92/3 established a derogation system to the principles of the nuclear common market and, as a consequence, this derogation system must be strictly applied. Thus, under this Directive, States of transit can only refuse transit authorisation on grounds of non-compliance with international and Community transport rules. However, the current Commission proposal merely adopts the loose phrase ‘the relevant legislation applicable’.

4.4.4

Its pertinence and clarity would be enhanced if a distinction were made between Member States of transit and Member States of destination. The main concern for Member States of transit would be to ensure that the proposed transfer satisfied international and EU regulatory conditions for the transport of radioactive materials. The main areas of concern would be far broader for Member States of destination and would include not only transport but also the management of radioactive material.

4.4.5

Thus Article 6(3) could read as follows:

‘Reasons shall be given for any refusal to grant authorisation, or for conditions attached to authorisation:

i)

for Member States of transit, on the basis of international, Community and national rules relevant to the transport of radioactive materials;

ii)

for Member States of destination, on the basis of existing legislation on radioactive waste management and the management of spent fuel or international, Community and national rules relevant to the transport of radioactive materials.’

4.4.6

Finally, the so-called automatic approval procedure, which prevents States from adopting delaying or foot-dragging procedures, is extremely useful and should not be called into question (Article 6(2) of the proposal).

4.5   Practical difficulties in implementing certain procedures

4.5.1

The proposal introduces welcome and genuine simplifications to existing procedures. Nevertheless, some difficulties and queries persist regarding the practical application of certain amendments.

4.6   Clarifying the rules for imports and exports (Articles 10, 11 and 12)

4.6.1.

The structure of the Directive has been changed to identify more clearly the different stages in the procedure. Specific provisions apply to imports and exports, but just how they tie in with the general rules specifying the stages of the procedure needs to be clarified.

4.6.2

Thus, reading Article 10(1) in combination with the proposal's general provisions would lead a Member State of destination to submit a request for authorisation to itself, which seems rather odd.

4.6.3

Under Article 10(2), the ‘person who has the responsibility for managing the shipment’ is unclear, and could refer to a variety of operators. If this refers to legal responsibility, then should it be defined contractually and/or/by regulation or law?

4.6.4

Reconciling Article 10(2) with Article 12 specifying the conditions for prohibiting exports also presents difficulties. Is the Member State of transit expected, in addition to other concerns, to assess with certainty the ability of a third State of destination to manage radioactive waste (Article 12(1)(c))? What would be the outcome if a State of transit were to decide that a third State of destination did not have the appropriate resources?

4.6.5

In order to ensure that precise requirements are laid down for exports of radioactive waste and spent fuel outside the borders of the EU, it is proposed that Article 12(1)(c) should be amended by inclusion of a provision to the effect that the authorities of Member States shall not authorise shipments to any third country in which technical, legal and administrative resources, and the channels for public involvement in decision-making are insufficient to guarantee the safe management of radioactive waste, at least to the standards applying in EU countries

4.6.6

Article 11 on rules for exports outside the Community does not in any way specify the form in which a request for authorisation by a third State is to be submitted and/or obtained. Moreover, the application of the proposal's general rules cannot be reconciled with the extraterritoriality of third States of destination, which do not fall within the Community's jurisdiction.

4.6.7

Refusal of authorisation by the State of destination. As already stated with reference to States of transit, it would be preferable to specify more clearly the reasons that could justify a refusal of authorisation (Article 6(3) applies to both categories of States).

4.7   Clarification and standardisation of terminology

4.7.1

‘Radioactive waste’: Article 3(1) provides a new definition of radioactive waste. Although it is supposed to be based on the Joint Convention definition, it contains some differences. This is particularly so in the case of identifying the country that is to categorise the radioactive waste. It would be preferable to apply the Joint Convention definition.

4.7.2

‘Technical specifications’: Article 9 refers to ‘technical specifications under which the shipment was approved’ without defining the term. Since this term is often used in legislation on the transport of radioactive waste and spent fuel, the term should be clearly defined in order to avoid any risk of confusion.

4.7.3

‘Authorisation’ — ‘approval’ — ‘acceptance’ — ‘consent’: Several articles in the proposal (Articles 4 to 7 and Articles 10, 11 and 13) make indiscriminate use of these terms. Standardising terminology would facilitate reading and interpreting the document. The EESC recommends retaining two terms: authorisation and consent. Authorisation: this term would refer to the agreement of the State of origin. Consent: this would refer to the agreement given by the State of destination and/or transit. This distinction would make it possible to distinguish between the two major phases in the control procedure laid down in the Directive.

5.   Conclusions

5.1

The EESC agrees that the Directive should be revised to ensure consistency with Euratom's latest directives and with international conventions, as well as to simplify and clarify existing procedures. It welcomes the introduction of an automatic approval procedure that prevents States from employing delaying tactics.

5.2

Nevertheless, it would draw attention to the need to redefine the rules on transit in order to ensure that their application does not cause undue interference with the transport of spent fuel for reprocessing within the European Union, which would be contrary to the principles of the nuclear common market.

5.3

Finally, it is necessary to clarify the rules on imports and exports and to redefine more precisely the grounds entitling a State of transit or destination to refuse authorisation.

Brussels, 9 June 2005.

The President

of the European Economic and Social Committee

Anne-Marie SIGMUND


17.11.2005   

EN

Official Journal of the European Union

C 286/38


Opinion of the European Economic and Social Committee on the Proposal for a Council Decision on guidelines for the employment policies of the Member States, in accordance with Article 128 of the EC Treaty

(COM(2005) 141 final — 2005/0057 (CNS))

(2005/C 286/08)

On 22 April 2005 the Council decided to consult the European Economic and Social Committee, under Article 128 of the Treaty establishing the European Community, on the abovementioned proposal.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 24 May 2005. The rapporteur was Mr Malosse.

The European Economic and Social Committee adopted the following opinion on 31 May 2005 by written procedure (Rule 58 of the Rules of Procedure) by a majority with one vote against.

1.   Introduction

The European Council of 22 and 23 March 2005 stated the need to relaunch the Lisbon Strategy and to refocus priorities on to growth and employment.

The Council asked the Commission to incorporate the priority given to growth and employment into new Broad Economic Policy Guidelines and new Employment Guidelines.

These two texts have been consolidated into a single document, which presents the first integrated guidelines for growth and employment for the period 2005-2008.

This opinion refers to the part entitled Proposal for a Council Decision on guidelines for the employment policies of the Member States, in accordance with Article 128 of the EC Treaty.

The Committee deeply regrets that the very tight timetable for adoption of the guidelines does not, on such an important subject for European citizens, allow for a real debate with civil society. This runs counter to the principle of participatory democracy as enshrined in the Constitutional Treaty. The Committee therefore requests the Council to review this timetable in the future so that the democratic debate and civil dialogue can be held in reasonable conditions, both at European and at national level. Only then can all the relevant social players be fully involved in every phase of the process, as was so vigorously called for by all sides in the Lisbon mid-term review with a view to more effective implementation of the employment strategy.

At the same time, the Committee regrets that the consultation procedure only allows it to express its view in part on what is in principle an integrated proposal on growth and employment. It would have been appropriate for the employment guidelines and the broad economic policy guidelines for Member States to have been included in a single referral, with a truly comprehensive policy making possible a more balanced policy mix between the cyclical and structural aspects.

Finally, the Committee believes that the Commission must draw up a more consistent strategy ensuring support and assistance to employment policy, which will respond better to public expectations and make it possible actually to achieve the full employment goals of the Lisbon Strategy.

2.   General comments

2.1   Overall consistency

In order to make the process of refocusing on growth and employment effective, the European Council has decided to strengthen the consistency and complementarity of the existing mechanisms by launching a new cycle of governance.

The EESC welcomes this new approach, provided that it is put into effect and does not just remain on paper, which unfortunately is still the case. It is also important that consistency should be reflected in the evaluation.

For reasons of continuity, the Employment Guidelines and the Broad Economic Policy Guidelines should be fully reviewed every three years, allowing a real democratic debate.

Priorities

The priorities set out for the purpose of achieving full employment, job quality, labour productivity and social cohesion are as follows:

Attract and retain more people in employment and modernise social protection systems;

Improve adaptability of workers and enterprises and the flexibility of labour markets;

Increase investment in human capital through better education and skills.

2.2

However, the Committee regrets that other avenues are not sufficiently explored, or that they are simply mentioned without really being made into priorities.

2.2.1

A policy for better integration of young people into the labour market, not least to guarantee them a first job with future prospects. The persistence (in some countries, the increase) of youth unemployment, which also affects graduates, is a key challenge for Europe; a society that offers its young people no prospects faces a bleak future.

2.2.2

Measures linked with the transition to a knowledge economy, inter alia to improve job quality and labour productivity. Indeed, the Committee is convinced that the scale of the transition to a new economic era (development of services, changes in industry, etc.) has not been properly understood, and that the ineffectiveness of some employment policies is linked to the fact that they take too little account of the changes that are happening before us. This transition to a knowledge economy requires more rigorous and focused commitment to vocational training and lifelong learning, and sustained adaptation to knowledge of new technologies. In this context, traditional distinctions between sectors and between skilled and semi-skilled jobs, which date from the industrial era and are no longer relevant in a knowledge-based society, need to be called into question.

2.2.3

The Committee regrets that guidelines on innovation and research concern only the broad economic policy guidelines and do not have any implications for employment whereas the EU, by putting more investment into these sectors, would help create jobs, especially for young people. This omission highlights the lack of consistency between the Broad Economic Policy Guidelines and the Employment Guidelines.

2.2.4

Given that the problem of gender equality with regard to employment is one of the key issues of the Lisbon strategy and that the need for further efforts to connect work and family life still remains, it is surprising not to find a specific integrated guideline on gender issues. At the same time, the Committee is astonished that the guidelines do not give more emphasis to the challenge of the ageing workforce and the need to do more to combat labour market discrimination based on age, disability or ethnic origin.

2.2.5

Joint management of immigration policy and the issue of Europe's declining demography. The European Commission's communication on the management of migratory flows (1) highlighted the fact that the Union could lose more than 20 million people from its labour force by 2030 due to the fall in the birth rate. Although immigration is not in itself a solution to the demographic situation in the EU Member States, Europe will need to adopt active policies for admitting economic migrants (2) so that their arrival helps meet the needs of the labour market and contributes to the EU's prosperity. The restrictive and discriminatory policies of some Member States towards migrant workers have a deterrent effect, which is detrimental to the needs of the labour market. Close collaboration at national and Community level is vital. The demographic challenge must, however, prompt a debate at European level on family and birth policies.

2.2.6

Actions promoting local initiatives and the development of all types of businesses. The growth in new businesses in the European Union is weak (except in some of the new Member States) and reflects a climate that is not favourable to initiative. There is also a very high failure rate among small businesses which do not reach the stage of maturity and development. The remedies are well known (removal of administrative barriers to starting up, reforming taxation on succession, tackling monopolies and distortions in competition, delays in payment and excessively long payment deadlines, the lack of European instruments to facilitate the single market approach, etc.) but are rarely applied. The Committee underlines the importance of this matter and would wish current EU enterprise policy programmes to be made consistent with the guidelines for growth and employment.

2.3   Evaluation of results achieved

2.3.1

The EESC recognises that the new guidelines are based on a quantitative evaluation of the results achieved to date under the Lisbon Strategy. These results show a slight improvement (an employment rate that rose from 61,9 % of the population in 1999 to 62,9 % in 2003). However, it must be remembered that the overall results of employment policies in the EU, well below the targets set for 2010, are disappointing. The EESC would therefore have wished for a more detailed evaluation of the results, taking into account other parameters (youth employment, female employment rate, older workers) and also differences in results achieved in different Member States and even, where applicable, in different regions and sectors in the most significant cases. The EESC could in future, in cooperation with national ESCs and similar institutions, produce on its own initiative — or be asked to produce — a comparative evaluation of the results achieved by drawing on the observations of civil society. This task is firmly in line with the recommendations of the March 2005 European Council requesting the EESC, along with national ESCs and similar institutions, to play a full part in implementing the Lisbon Strategy.

2.4   Methods of implementation

2.4.1

The EESC notes that overall, the integrated guidelines give the Member States enough flexibility to identify local solutions that best meet their needs for reform. However, beyond national policies, it is increasingly at regional or local level that political players, social partners, economic organisations and other civil society players are faced with the issue of employment and take practical initiatives. The most recent EU report on cohesion also highlighted the diversity of local and regional employment strategies.

2.4.2

The Committee regrets that the new guidelines no longer refer explicitly to specific employment and labour market objectives: they diverge from the previous approach, which gave all Member States a framework and clear commitments based on pro-active employment policies. These new guidelines are no longer a pillar to which Member States can refer. On the other hand, Member States' employment policy measures can no longer be measured against concrete, and in many cases quantified, European targets as they were in the past.

2.4.3

Conversely, the Committee welcomes the fact that the Commission is proposing that each Member State should set itself, after consulting the national parliament and the social partners, its own specific quantitative objectives. The fact is, it is at national level that the guidelines have to be implemented. On this subject, it would be appropriate for these national objectives to take account of the realistic prospects for progress in each country in order to strengthen the overall dynamic. Thus, it is desirable that those countries that have already achieved certain Lisbon objectives in terms of employment rates should continue to make progress.

3.   Specific comments

ATTRACT AND RETAIN MORE PEOPLE IN EMPLOYMENT AND MODERNISE SOCIAL PROTECTION SYSTEMS

3.1

‘Guideline. To implement employment policies aimed at achieving full employment, improving quality and productivity at work, and strengthening social and territorial cohesion. Policies should contribute to achieving an average employment rate for the European Union (EU) of 70 % overall, of at least 60 % for women and of 50 % for older workers (55 to 64), and to reduce unemployment and inactivity. Member States should set national employment rate targets for 2008 and 2010 (Integrated guideline No 16).’

3.1.1

In its opinion on Employment policy: the role of the EESC following the enlargement of the EU and from the point of view of the Lisbon Process  (3), the EESC recalled that:

It is clear that the employment targets cannot be met unless we succeed in ushering in a sustainable economic upswing. Appropriate framework conditions which are conducive not only to external demand, but also to internal demand must be established, in order to enhance the potential for growth and to achieve full employment. On that score, the Committee has, on a number of occasions recently, pointed out the need for a ‘sound macroeconomic background’ at European level. This includes, above all, a macropolicy which gives Member States scope to take cyclical action in economic and finance policy during times of economic stagnation, and the appropriate room for manoeuvre during times of economic growth.

3.1.2

The current European employment debate focuses on the need to increase employment rates. The Lisbon strategic target is to promote employment as the best way to prevent poverty and exclusion. This calls for a strategy aimed at improving job quality, not simply quantitative measures. Europe's path to full employment must therefore be tied to commensurate wages, raising the level of qualification (inter alia through lifelong learning), social security, and high standards of labour law. The EESC asks that, with the advent of a knowledge-based society, more importance be given to job quality across all sectors.

3.1.3

The innovativeness of enterprises of all types is essential to European economic dynamism. Without new, improved products and services, without an increase in productivity, Europe will fall behind economically and in terms of employment policy. Raising productivity also means a change in the working world, not always and immediately with positive effects. It is precisely by raising the quality of all categories of job that enterprise will be able to develop its innovativeness and productivity.

3.1.4

In addition, appropriate attention should be paid to combating discrimination and promoting equal opportunities. Member States should be strongly encouraged to continue to pursue anti-discrimination measures under their National Action Plans, inter alia wage equality, and measures to significantly increase the level of female employment.

3.2

Guideline. Promote a lifecycle approach to work through: a renewed endeavour to build employment pathways for young people and reduce youth unemployment; resolute action to eliminate gender gaps in employment, unemployment and pay; better reconciliation of work and private life, including the provision of accessible and affordable childcare facilities and care for other dependants; modern pension and healthcare systems, ensuring their adequacy, financial sustainability and responsiveness to changing needs, so as to support participation in employment and longer working lives, including appropriate incentives to work and discourage early retirement; support for working conditions conducive to active ageing (Integrated guideline No 17). See also integrated guideline ‘To safeguard economic sustainability’ (No 2).

3.2.1

The EESC supports these proposals.

3.2.2

The Committee expresses its full support for the European Youth Pact, adopted by the European Council of 22 and 23 March 2005, which aims to provide European young people with a series of policies and measures connected with the Lisbon goals. In its own-initiative opinion on the White Paper: Youth Policy (4), the Committee expressed the belief that ‘Member States, with the support of the Community, should make a quantitative commitment to reducing youth unemployment’.

3.2.2.1

The Committee therefore requests the inclusion of a specific guideline on youth employment, which could include: support mechanisms for first-time job seekers, commitments to first jobs with future prospects, the development of apprenticeships, more effective European programmes to promote the mobility of young workers, the removal of barriers to mobility (inter alia for apprentices, trainees and first-time jobseekers), and measures to encourage the creation of new businesses and activities.

3.2.3

The EESC urges the Member States to continue with their efforts to make the world of work compatible with family life. This is a task for society as a whole. In particular, the provision of child-minding facilities makes it possible to reconcile family and occupational obligations and enables women to continue to work in gainful employment, or to rejoin the labour market quickly after a break.

3.2.4

The EESC believes that if active ageing is to be promoted in reality, there is a need to create general economic and political conditions providing stronger incentives for longer working careers, and that it would also be appropriate to encourage voluntary work.

3.2.5

With regard to social security systems, the task today is to balance their modernisation and improvement in order to adapt them to current circumstances (e.g. demographic changes), whilst maintaining their social protection function (5). In this context, ensuring financial viability in the long term must also take account of the criteria of social fairness, general accessibility and high quality of the services.

3.2.6

The Committee considers the large number of direct employment-related subsidies to be dangerous, as they distort competition, give rise to inequalities, and, in the case of subsidies to unskilled jobs, drag down wages and thus job quality. It therefore recommends active measures that provide an overall framework by creating the structures that promote social inclusion, the reconciliation of work with family life, and equality of opportunity. Here, the particular needs of each Member State should also be taken into consideration, and in particular regional unemployment problems.

3.3

Guideline. Ensure inclusive labour markets for job-seekers and disadvantaged people through: active and preventive labour market measures including early identification of needs, job search assistance, guidance and training as part of personalised action plans, provision of social services necessary to support the labour market inclusion of disadvantaged people and contribute to social and territorial cohesion and to the eradication of poverty; and continuous review of tax and benefit systems, including the management and conditionality of benefits and reduction of high marginal effective tax rates, with a view to making work pay and to ensuring adequate levels of social protection (Integrated guideline No 18)’.

3.3.1

However, as already stated in its opinion on Employment policy guidelines in 2003 (6), the EESC emphasises that ‘…the term 'at a disadvantage' … covers many groups of people facing various employment situations. A more precise approach is needed to terms and concepts relating to particular people with special needs and their employment. Many of these people and possibly some other categories of people are not even applying for jobs. This of course must not mean they are excluded from obtaining further education or professional experience under the employment action plans.’

3.3.2

As the EESC stressed in previous opinions, there is a need for incentives for the employment of disabled workers and the creation of the conditions necessary for familiarising disabled people with modern technologies. The Committee emphasises the key role of the social economy and the tertiary sector, inter alia in integrating disadvantaged people into the labour market, as the March 2005 European Council pointed out.

3.3.3

In line with its previous opinions, the EESC emphasises the importance of the proposal relating to guidance and training within personalised action plans.

3.3.4

The EESC also recalls that ‘Access to the labour market on equal terms is essential for the social integration of immigrants and refugees, not only to promote economic independence, but also to improve personal dignity and social participation. The structural and institutional barriers preventing freedom of access to the labour market must be removed’  (7).

3.3.5

The Committee also highlights the need to decouple social assistance, which is a right in itself, from taking a job. In some countries, many people turn down the opportunity of work if this would lead to the loss of benefits that make up most of their income. Those who do take up employment thus suffer a deterioration in their financial situation (as the reasons for the benefits being paid remain: family situation, disabilities, etc). This swells the ranks of the working poor. Along similar lines, the Committee emphasises that the issue of fighting poverty must be decoupled from that of employment and be the subject of more proactive, coordinated policies by the Member States of the Union in accordance with the spirit of the Lisbon Strategy.

3.4

Guideline: Improve matching of labour market needs through: the modernisation and strengthening of labour market institutions, notably employment services; greater transparency of employment and training opportunities at national and European level to facilitate mobility across Europe; better anticipation of skill needs, labour market shortages and bottlenecks; appropriate management of economic migration (Integrated guideline No 19).

3.4.1

The EESC underscores, as it has already done on several occasions, the importance of mobility in employment. This mobility means ensuring sufficient infrastructure and accessibility in the areas served and the areas where people live, as well as a sufficient level and standard of all public services. In addition to geographical mobility, upward social mobility should also be promoted, ensuring that paths between professions in the same sector are open, including sectors that are not directly linked to the knowledge economy.

3.4.2

The EESC highlights the role that immigrants can pay in meeting the needs of the labour market and promoting growth in the European Union. The Committee emphasises the need for non-discriminatory policies towards migrant workers and for measures to welcome and integrate them and their families.

IMPROVE ADAPTABILITY OF WORKERS AND ENTERPRISES AND THE FLEXIBILITY OF LABOUR MARKETS

3.5

Guideline:Promote flexibility combined with employment security and reduce labour market segmentation through: the adaptation of employment legislation, reviewing where necessary the level of flexibility provided by permanent and non-permanent contracts; better anticipation and positive management of change, including economic restructuring, notably changes linked to trade opening, so as to minimise their social costs and facilitate adaptation; support for transitions in occupational status, including training, self-employment, business creation and geographic mobility; the promotion and dissemination of innovative and adaptable forms of work organisation, including better health and safety and diversity of contractual and working time arrangements, with a view to improving quality and productivity at work; adaptation to new technologies in the workplace, determined action to transform undeclared work into regular employment (Integrated guideline No 20). See also integrated guideline “To promote greater coherence between macroeconomic and structural policies” (No 4)’.

3.5.1

In the EESC's view, ‘it is important to strike the right balance between flexibility and security on the labour markets in order to ensure that, on the one hand, enterprises are able to offer more employment and that, on the other hand, workers are provided with the requisite security. The EESC welcomes the balanced approach adopted by the Taskforce on employment in the chapter of its report dealing with the promotion of flexibility and security on the labour market. Although social and structural conditions differ from Member State to Member State, they do have aspects in common, to which, in the EESC's view, particular importance should be attached.’

3.5.1.1

However, the Committee draws the attention of the Commission and the Council to the dangers of increasing the job insecurity of younger and older workers, which would weaken their position in collective bargaining over their wages, working conditions, social protection (particularly pension rights) and, in so doing, weaken the level of social standards and the European social model promoted by the European institutions inter alia in international negotiating and consulting bodies.

3.5.1.2

It would be helpful to try to decouple ‘changes linked to the opening of markets’ from a continuous deterioration of jobs, wages and living conditions of hundreds of thousands of European workers and citizens. The Committee also emphasises that the macro-economic measures required by guideline number 4 and set out in detail in line 20 have a significant human and economic cost, which the Commission should evaluate more thoroughly in an impact assessment before these guidelines come into force. As the Committee has indicated above, it will itself undertake a comparative evaluation of experiences of implementation in each Member State.

3.5.2

The Committee emphasises that there must be no confusion between flexibility and undeclared work, although they are mentioned in the same guideline. Promoting flexibility of contracts or wages is not the way to get to serious grips with the problem of undeclared work, which is an issue that needs to be dealt with separately.

3.5.2.1

The Committee emphasises the specific goal of combating undeclared employment. In an own-initiative opinion (CESE 325/2004), the Committee highlighted a number of ideas that would help find the right approach to the problem:

3.5.2.2

The incentive to declare employment must be improved.

3.5.2.3

Women and other disadvantaged groups are very often in the front line when it comes to poorly-paid undeclared work. It is therefore important that their situation be better identified so that appropriate measures can be taken.

3.5.2.4

Legislation relating to businesses needs to be looked at in order to reduce red tape, not least regarding the start-up of new businesses.

3.5.2.5

Undeclared work should not be considered as a minor offence. The efficacy of sanctions applied needs to be increased such that undeclared work no longer pays.

3.5.2.6

In the evaluation that will be made of the transitional measures concerning the free movement or workers — or rather the lack of such freedom — for citizens of countries that joined the EU on 1 May 2004, a report should be made of the difficulties that employers and workers have faced, taking into account changes in qualifications, demographic changes, cultural changes, and changes in the need for mobility. It will be necessary to investigate whether these measures have reduced mobility within the European Union and have encouraged undeclared work by workers from these countries.

3.5.3

The Committee notes with amazement that the Commission does not, in its comments about this guideline, say a single word about the importance of the involvement of those affected, especially workers and their representatives, in economic restructuring. This is all the more astonishing as this was discussed in detail in the recently-published Commission communication on restructuring and employment, which the Committee explicitly welcomes and will shortly discuss in a separate opinion.’

3.6

Guideline: Ensure employment-friendly wage and other labour cost developments by encouraging the right framework for wage-bargaining systems, while fully respecting the role of the social partners, to reflect differences in productivity and labour market trends at sectoral and regional level; and monitoring and, where appropriate, reviewing the structure and level of non-wage labour costs and their impact on employment, especially for the low-paid and those entering for the first time the labour market (Integrated guideline No 21). See also integrated guideline “To ensure that wage developments contribute to macroeconomic stability and growth” (No 5).’

3.6.1

In its opinion on the Broad Economic Policy Guidelines 2003-2005  (8), the EESC explained:

The Committee generally welcomes the call made in the guidelines for nominal wage increases to be consistent with productivity gains and inflation in the medium term. However, if the repeated call for wage moderation and restraint means that wage increases should be lower than the growth in productivity, the Committee cannot give its approval, since as a result the balance between supply- and demand-side factors would be destroyed.

Seen simply as a supply-side factor, lower wage increases reduce the relative costs of the factor labour and can therefore boost employment. However, this overlooks the fact that wages are not only a supply-side cost factor but also have an effect on the demand side as the most important factor determining domestic demand. Considerable wage restraint therefore weakens overall demand and thus growth and employment.’

3.6.2

The Committee reaffirms its support for the principle of contractual freedom between the two sides of industry.

3.6.3

The Committee also believes that, beyond the simple question of wages, we should be concerned with the development of household purchasing power, which has tended to stagnate or even fall over the last twenty years in some Member States. The increase in (often local) taxation, rocketing house prices, and increasing energy prices have cancelled out increases in wages. This has had an impact on consumption and therefore on growth. The Committee asks that a debate on this phenomenon be launched, and would be pleased to take part in such a debate.

INCREASE INVESTMENT IN HUMAN CAPITAL THROUGH BETTER EDUCATION AND SKILLS

3.7

Guideline: Expand and improve investment in human capital through: the establishment of efficient lifelong learning strategies, according to European commitments, including appropriate incentives and cost-sharing mechanisms for enterprises, public authorities and individuals, in particular to significantly reduce the number of pupils leaving school early; increased access to initial vocational, secondary and higher education, including apprenticeships and entrepreneurship training; and enhanced participation in continuous and workplace training throughout the life-cycle, especially for the low-skilled and older workers (Integrated guideline No 22). See also integrated guideline “To increase and improve investment in R&D” (No 12).’

3.7.1

The EESC agrees with and supports the Commission's proposals, which reflect the recommendations it has made in a number of opinions. However, it would like these recommendations to be backed up by specific quantitative goals. For this purpose, the Committee highlights the responsibility shared by all those involved (individuals, public sector organisations and businesses of all types) to ensure the viability and financing necessary to these investments in training.

3.8

Guideline: Adapt education and training systems in response to new competence requirements through: better identification of occupational needs and key competences, and anticipation of future skill requirements; broadening the supply of education and training tools; developing frameworks to support the transparency of qualifications, their effective recognition and the validation of non-formal and informal learning; ensuring the attractiveness, openness and high quality standards of education and training systems (Integrated guideline No 23).’

3.8.1

The EESC also agrees with these proposals and recalls that it has long been calling for efforts to establish a European Learning Area to be stepped up (9). The EESC again stresses the need for developing lifelong learning and training and increasing the role of the social partners and other civil society organisations in this sphere. The EESC also highlights the importance of the transparency and harmonisation of qualifications across Europe and at international level.

Brussels, 31 May 2005.

The President

of the European Economic and Social Committee

Anne-Marie SIGMUND


(1)  COM(2005) 123 final.

(2)  Quoted from the draft Opinion on the Green Paper on an EU approach to managing economic migration (SOC/199), which was discussed by the Section on 24 May.

(3)  EESC opinion 135/2005 on Employment policy: the role of the EESC following the enlargement of the EU and from the point of view of the Lisbon Process – rapporteur: Mr Greif

(4)  EESC Opinion 1418/2000 – White Paper: Youth Policy – Rapporteur: Ms Hassett van Turnhout

(5)  See note 1.

(6)  OJ C 208 of 3.9.2003 on the Proposal for a Council Decision on guidelines for the employment policies of the Member States (Rapporteur: Mr Koryfidis)

(7)  OJ C 80 of 30.3.2004 on the Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions on immigration, integration and employment (rapporteur: Mr Pariza Castaños)

(8)  EESC opinion 1618/2003 – Rapporteur: Mr Delapina

(9)  See, especially, the EESC opinion on the European Dimension of Education: its nature, content and prospects – Rapporteur: Mr Koryfidis - OJ C 139, 11.05.2001)