AND SOCIAL SECURITY MEASURES
16.7 Comparison with other FTAs
The blanket reference can be found in other FTAs as well. In the EU– CARIFORUM Agreement, which has entered into force, the EU has included a blanket reference in relation to commitments on CSS and independent professionals in Annex IV(D):
The list below does not include measures relating to qualification requirements and procedures, technical standards and licensing requirements and procedures, and measures regarding employment, work and social security conditions when they do not constitute a discriminatory limitation within the meaning of Arts 83(2) and (3) of the Agreement. Those measures (e.g. need to obtain a licence, need to obtain recognition of qualifications in regulated sectors, need to pass specific examinations, including language examinations, need to have a legal domicile where the activity is performed, need to comply with national regulations and practices concerning minimum wages and with collective wage agreements in the host country), even if not listed, apply in any case to contractual services suppliers and independent professionals of the
other Party.24
Note that this provision also contains the counterpart of the GATS domestic regulation provision, be it that QTL measures apply.25 The
provision explicitly provides examples of the measures addressed by the blanket reference, which is a great improvement over the uncertainty of the reference in the GATS commitments.
In the draft CETA, Art. 10(2) included in the chapter on the temporary entry and stay of natural persons for business purposes26 provides:
24 See the Economic Partnership Agreement between the CARIFORUM States, of the one
part, and the European Community and its Member States, of the other part (EU–
CARIFORUM) Annex IV(D), para. 3 (http://trade.ec.europa.eu/doclib/docs/2008/
february/tradoc_137971.pdf,).
25 The GATS system is still incomplete, as disciplines on domestic regulation are under
negotiation. The outcome of those negotiations is unclear, yet a version of a necessity test is intended, which is more intrusive than non-discrimination as provided in the EU– CARIFORUM Agreement; for more on these negotiations, see extensively Tans (2015), para. 2.5.4.3.
26 See the CETA between Canada of the one Part, and the European Union and its
TRADE COMMITMENTS IN GATS, EU–CARIFORUM AND CETA 153 4. To the extent that commitments are not taken in this Chapter, all other requirements of the laws of the Parties regarding entry and stay continue to apply, including those concerning period of stay. 5. Notwithstanding the provisions of this Chapter, all requirements of the Parties’ laws regarding employment and social security measures shall continue to apply, including regulations concerning minimum wages as well as collective wage agreements.
6. This Chapter does not apply to cases where the intent or effect of the temporary entry and stay is to interfere with or otherwise affect the outcome of a labour or management dispute or negotiation, or the employment of natural persons who are involved in such
dispute or negotiation.27
A major difference with the GATS blank reference is the fact that the EU–CARIFORUM Agreement and the CETA have not included the blanket reference in the commitment itself. This avoids the oddity described above that a GATS commitment includes a flexible limitation in the form of the measures addressed by the blanket reference. As explained, a measure regulating entry that would nullify the substance of the GATS commitment leads to a circular argument, as the option to nullify this commitment is inherent to the commitment itself.
Moreover, for example the CETA consistently refers to the substance of the blanket reference. Art. 10(3), para. 1 indicates: “Each Party shall allow temporary entry to natural persons for business purposes of the other Party who otherwise complies with the Party’s immigration measures applicable to temporary entry, in accordance with this Chapter.” Art. 10(6), para. 1 provides: “This Agreement does not impose an obligation on a Party regarding its immigration measures, except as specifically identified in this Chapter and in Chapter Twenty Seven (Transparency).”28 Finally, the CETA
intends to abolish work permits, or similar prior approval procedures, in
february/tradoc_154329.pdf); chapter 10 includes CSS, independent professionals, business visitors and intra-corporate transferees.
27 See CETA Annex IV(D), Art. 10(2).
28 Art. 10(6), para. 3 CETA provides that the market access provision and the national
treatment provision apply to Mode 4 financial service suppliers; however, the provision again explicitly indicates that these obligations do not apply to measures granting temporary entry of natural persons of a Party or of a third country.
154 SIMON TANS
relation to business visitors for investment purposes and for short-term purposes.29
It is beyond the scope of this chapter to provide a full analysis of these provisions included in the EU–CARIFORUM Agreement and the CETA. In any case, both FTAs are much more informative on the content of the blanket reference, which is the main problem with the GATS blanket reference. However, the main problem is not addressed by these references. Rules concerning entry and stay, where the discussed examples of no prior imprisonment and sponsorship can be found, clearly continue to apply. It is unclear whether this is a reference to the rules at the time the FTAs enter into force, or the rules as they stand today. For business visitors relying on CETA (for short-term purposes and investment purposes), the matter has become moot in relation to conditions attached to work permits, as CETA prohibits this. That notwithstanding, the no-prior-imprisonment condition is part of the general entry conditions, and thus not part of a work permit.
16.8
Conclusion
As will be apparent from this chapter, it is not easy to provide clear conclusions in relation to the topic under discussion here. This has to do with the lack of literature dealing with the question of what the international obligations will specifically mean in relation to the conditions included in national immigration rules. Moreover, case law on GATS is rare, and no cases exist dealing with Mode 4. The intention of this chapter is twofold. First, a case can be made that the EU GATS Mode 4 commitments are no longer observed by the Netherlands and the UK. It is not possible to draw a conclusion due to the blanket reference being part of the commitment itself, which complicates the matter. Still, the author is of the opinion that reciprocal negotiations cannot have led to the possibility to undermine or nullify a commitment via immigration rules. While one may disagree with the above analysis of sponsorship and no-prior-imprisonment measures, that is not the point. Even if the current national rules do not nullify the commitments, nothing prevents the EU Member States from including more restrictions in their immigration rules. The second conclusion is that at first glance, the EU–CARIFORUM Agreement and CETA demonstrate improvement, owing to the inclusion of the blanket reference in the form of provisions and to added detail. Nevertheless, the issue remains that it is not
TRADE COMMITMENTS IN GATS, EU–CARIFORUM AND CETA 155
clear what happens when signatory states add conditions to the rules referred to in blanket references.
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17.
CAN THE EU USE TRADE AGREEMENTS TO
FACILITATE REGULAR MIGRATION?
EXAMPLES FROM THE WESTERN BALKANS
ELSPETH GUILD
A clear and well implemented framework for legal pathways to entrance in the EU (both through an efficient asylum and visa system) will reduce push factors towards irregular stay and entry, contributing to enhance
security of European borders as well as safety of migratory flows.1