Liberalising trade in services: creating new migration opportunities? Research Paper in Law, 1/2010

Introduction. It is quite uncommon to associate migration with the rules on services trade. Indeed, all economic definitions of services insist on their immaterial nature and on the increased possibility of trading them ‘virtually’ over networks or else, without any physical movement of the parties involved. Somehow this ‘immaterial’ nature of services reflects on their providers/recipients which seem to be ‘invisible’. Even though most services still require the physical contact of the provider with the recipient1 and, when provided over national borders, do entail migration, service providers and/or recipients are rarely thought of as ‘immigrants’. This may be due to the fact that they enter the foreign territory with a specific aim and, once this aim accomplished, move back to their state of origin; technically they only qualify as short term non-cyclical migrants and are of little interest to policy-makers. A second reason may be that both service providers and recipients are economically desirable: the former are typically highly skilled and trained professionals and the latter are well-off ‘visitors’, increasing consumption in the host state. The legal definition of services in Article 57 TFEU (ex Art. 50 EC) further nourishes this idea about service providers/recipients not being migrants: the relevant Treaty rules only apply when the provisions on free movement of workers and freedom of establishment – themselves clearly linked to migration – do not apply. This distinction has been fleshed up by the ECJ which has consistently held that the distinction between the rules on establishment, on the one hand, and the rules on services, on the other, lies on duration.2 Indeed, all EC manuals state four types of service provision falling under the EC Treaty: a) where the service provider moves to the recipient’s state, for a short period of time (longer stay would amount to establishment), b) where the service recipients themselves move to the state where the service is offered (eg for medical care, education, tourism etc), c) where both service providers and recipients move together in another member state (eg a tourist guide accompanying a group travelling abroad) and d) where the service itself is provided across the borders (typically through the use of ICTs). None of these situations would typically qualify as migration. The above ‘dissociation’ between services and migration has been gradually weakened in the recent years. Indeed, migration is increasingly connected to the transnational provision of services. This is the result of three kinds of factors: developments in the European Court of Justice’s (ECJ) case law; legislative initiatives in the EU; and the GATS. Each one of these is considered in some detail below. The aim of the analysis which follows is to show the extent to which (legislative and judicial) policies aimed at the free provision of services actively affect migration conditions within the EU. The EC rules on the provision of services primarily affect the movement of EU nationals. As it will be shown below, however, third country nationals (TCNs) may also claim the benefits of the rules on services, either as recipients thereof or as employees of some EC undertaking which is providing services in another member state (posted workers).

Testing for Subsidiarity. Bruges European Economic Policy (BEEP) Briefing 13/2006

In the EU circuit (especially the European Parliament, the Council and Coreper) as well as in national parliaments of the EU Member States, one observes a powerful tendency to regard 'subsidiarity' as a 'political' issue. Moreover, subsidiarity is frequently seen as a one-way street : powers going 'back to' Member States. Both interpretations are at least partly flawed and less than helpful when looking for practical ways to deal with subsidiarity at both EU and Member states' levels. The present paper shows that subsidiarity as a principle is profoundly 'functional' in nature and, hence, is and must be a two-way principle. A functional subsidiarity test is developed and its application is illustrated for a range of policy issues in the internal market in its widest sense, for equity and for macro-economic stabilisation questions in European integration. Misapplications of 'subsidiarity' are also demonstrated. For a good understanding, subsidiarity being a functional, two-way principle neither means that elected politicians should not have the final (political!) say (for which they are accountable), nor that subsidiarity tests, even if properly conducted, cannot and will not be politicised once the results enter the policy debate. Such politicisation forms a natural run-up to the decision-making by those elected for it. But the quality and reasoning of the test as well as structuring the information in a logical sequence ( in accordance with the current protocol and with the one in the constitutional treaty) is likely to be directly helpful for decisionmakers, confronted with complicated and often specialised proposals. EU debates and decision-making is therefore best served by separating the functional subsidiarity test (prepared by independent professionals) from the final political decision itself. If the test were accepted Union-wide, it would also assist national parliaments in conducting comparable tests in a relatively short period, as the basis for possible joint action (as suggested by the constitutional treaty). The core of the paper explains how the test is formulated and applied. A functional approach to subsidiarity in the framework of European representative democracy seeks to find the optimal assignment of regulatory or policy competences to the various tiers of government. In the final analysis, this is about structures facilitating the highest possible welfare in the Union, in the fundamental sense that preferences and needs are best satisfied. What is required for such an analysis is no less than a systematic cost/benefit framework to assess the (de)merits of (de)centralisation in the EU.