Leiden Law Blog

Code orange: Krysztoff ante portas!

Posted on by Barend Barentsen in Public Law , 1
Code orange: Krysztoff ante portas!

Minister of Social Affairs and Employment Asscher stated that ‘code orange’ is in force for the European Union. He made the announcement in the Dutch newspaper the Volkskrant this weekend. The influx of workers after 2004 from the new member states, such as Poland, to the old member states has been massive. Over 1.5 million workers moved to the UK between 2004 and 2010. The borders of the member states that had opted for a transitional period of 7 years, such as the Netherlands and Germany, opened in 2011. Migration increased there too. Workers from the new member states have made use of their right to freedom of movement. According to Asscher this right caused no serious problems in the past. Living and working conditions in member states were more or less same all over the EU. Therefore, there was no real incentive for workers to migrate. Nor for employers to hire cheap labour from another member state.

This all changed when the new member states acceded. Workers from these states are willing to work for a wage and under conditions below the ‘western’ standards. Under EU law they are basically free to do so.

Problems

In Mr. Asscher’s opinion, immigration from the East leads to two problems in the labour market . The first one is displacement of vulnerable groups – low skilled, handicapped, poorly educated workers - by immigrants. They are, by far, cheaper. The second problem is that workers from Eastern Europe are liable to be exposed to abusive and illegal working conditions. Back home they would be even worse off. They might accept conditions that do not meet the Dutch standards (minimum wage), even though those conditions are applicable in theory. They might even, sometimes unwittingly, cooperate in establishing a legal construction that makes it possible to avoid those standards altogether. An important example is hiring fictitiously self-employed foreigners. They take the guise of an entrepreneur, to whom labour legislation does not apply. In actual fact, they’re in the same socio-economic position as Dutch workers. They’re painting or picking fruit and flower bulbs in disguise. Another example is exploiting the loopholes in the EU Directive on the posting of workers. Dutch workers and employers are subject to unfair competition stemming from the Eastern parts of the EU

What’s the problem?

I am saddened by the fact that immigration from the East as such, and the resulting displacement, is mentioned in the same breath as illegal practices with immigrants. The problems mentioned by the minister are of a different nature. Mass immigration has its downsides, for sure, but the connection with illegality suggests an invasion of barbarian hordes. It’s umfortunate that the two problems have been mixed up.

Since the freedom of movement of workers is one of the most fundamental economic rights enshrined in the EU treaty, there is little we can or should do to prevent immigration.

Illegal practices, abuse and legal fiction should be fought vigorously. National and EU legislation to do so is already in place. The implementation of those rules is in my opinion the real problem. It is impeded by a lack of cross-border cooperation and by – up till now – a lack of enforcement by the national authorities, such as the labour inspectorate (Arbeidsinspectie). Last Christmas Mr. Asscher made an appeal to supermarkets to stop selling mushrooms from farmers who were exploiting Eastern Europeans. Perhaps he should have sent in his inspectors instead. But it’s true, cooperation with local authorities in apprehending fraudulent agencies operating from Eastern Europe leaves a lot to be desired.

Freedom of movement

I share the feeling of the minister that we should clamp down on individuals and companies abusing their freedom of movement. In an ‘ever closer growing’ union, growing pains cannot be avoided. A huge task lies ahead for EU members and EU agencies to deal with them. But let’s not forget to cherish the fact that we have the fundamental freedom to work all over Europe. In about 7 years I hope to witness the arrival of Croatian workers.

1 Comment

Suzanne Bakker
Posted by Suzanne Bakker on August 21, 2013 at 15:54

It is indeed sad to see that the Minister is using the fact that some Eastern European employees are maltreated as a reason to try and stop the free flow of workers within the Union. It seems to me he is not really that much interested in the well-being of abused workers from Poland or elsewhere, as he is not using the tools he has to protect them (like the Inspectorate) and is in fact not requesting additional tools to that end. He seems to be simply using this argument to stop this type of migration so that these jobs could be done by Dutch people, overlooking the fact that it has been proven by practice that Dutch unemployed people are not that interested in these jobs.
I would say that his statement is more of a Code Orange for Dutch politics to start solving the real problems, instead of talking in populist tongues!

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